Indira and Others vs B.C. Muniramaiah

A.N. Venugopal Gowda, J—The respondent, as the plaintiff, has instituted OS No. 1919/2008, in the Court of Principal Senior Civil Judge, Bengaluru Rural District, to pass a decree, that he has perfected his right over the schedule ''B'' property by adverse possession and to restrain the defendants from interfering with the peaceful possession of the suit schedule property. The petitioners, as the defendants, have filed written statement on 29.06.2009. Issues having been raised, the plaintiff has filed affidavit in lieu of examination in chief on 17.10.2011. Prior to the commencement of the cross examination of P.W. 1, I.A. No. 4 was filed by the plaintiff, under Order VI Rule 17 r/w Section 151 of CPC, to permit the amendment of the plaint, in the manner proposed. Despite statement of objections filed on 21.02.2013, said application having been allowed by an order dated 30.05.2015, this writ petition was field to set-aside the said order and to dismiss the said application.

Sri. A. Madhusudhan Rao, learned advocate for the petitioners contended that amendment having been sought after commencement of the trial, the plaintiff/applicant having not shown any diligence, the proviso under Order VI Rule 17 of CPC being attracted, the Trial Judge has committed illegality in passing the impugned order, permitting the plaintiff to amend the plaint, that too, by way of substitution of schedule ''B'' property, in respect of which the main relief has been sought. Learned counsel submitted that the statement of objections filed on 21.02.2013 to the I.A. has not been considered and hence, the impugned order being perverse and illegal, interference is called for.

Sri. M.D. Raghunath, learned advocate for the respondent, on the other hand, submitted that there being an inadvertent error in describing the extent of property in schedule ''A'' and so also the extent of ''B'' schedule property and the boundaries thereof, the application was filed, the moment the inadvertence was noticed. Learned counsel submitted that proposed amendment is necessary to decide the real question in controversy and hence the Court below is justified in allowing the application and permitting the amendment, as proposed, to be incorporated in the plaint. Learned counsel made submission in support of the order passed by the Court below.

Considered the rival contentions and perused the record.

In Para 4 of the plaint, the plaintiff claims that he is in peaceful possession and enjoyment of the adjoining land measuring ''4 acres''. The said extent is now sought to be amended as ''5 acres'' i.e., by way of substation of the figure 5 to 4. Insofar as the other amendment concerning to schedule "B", the extent is sought to be substituted by 5 acres and the description of the boundaries i.e., on the Eastern, Western and Northern sides. It is for the plaintiff to prove actual extent of the property which is in his possession and enjoyment in respect of which the relief of declaration and injunction has been sought. By merely amending the plaint and claiming a larger extent, it cannot be construed that the plaintiff is entitled to be granted with the relief sought in the suit. It will be open to the petitioners-defendants to raise their objection in regard to the amended plaint by filing additional written statement.

In Surender Kumar Sharma Vs. Makhan Singh, (2009) 12 SCALE 665 : (2009) 10 SCC 626 : (2009) 9 UJ 4486 , Trial Court had rejected the application for amendment of the plaint mainly on the ground that the prayer for amendment was a belated one. Revision petition filed having not been entertained, Apex Court was approached by the applicant, for grant of relief. While considering the matter, the Apex Court has held, that even if the application for amendment was filed at a belated stage, then also the question that is to be decided is as to see whether by allowing the amendment, the real controversy between the parties may be resolved. Since it is well settled that under Order VI Rule 17 of CPC wide powers and unfettered discretion have been conferred on the Court to allow the amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. It was made clear that even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused, if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs and that mere delay and latches in making the application for amendment cannot be a ground to refuse the amendment. It was made clear that the Court must lean in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise.

Keeping in view the nature of controversy between the parties, in my view the Court below has not committed any illegality in permitting the amendment sought i.e., substitution to the extent of the property and the alteration of the boundaries of ''B'' schedule i.e., on the Eastern, Western and Northern sides.

Since, the application was filed after commencement of the trial and as the plaintiff has caused delay for disposal of the suit, which was instituted in the year 2008, he should compensate the defendants by paying costs. The Court below has not considered the said aspect.

In the result, writ petition is disposed of by making it clear that, no interference is called for with the impugned order, to the extent of allowing the plaintiff to incorporate the proposed amendment. However, the plaintiff shall pay costs of Rs. 20,000/- to the defendants, on the next hearing date of the suit. The amendment be incorporated, if not already incorporated on the next hearing date of the suit. The defendants are granted 30 days time to file additional written statement.

The suit be decided with expedition and within a period of one year from the date the additional written statement is filed and the suit is posted for trial. The plaintiff shall adduce and complete his side of evidence within a period of four months from the date the suit is posted for trial. The defendants shall adduce and complete their side of evidence within a period of three months of the plaintiff closes his side of evidence. The suit be decided with expedition and before the aforesaid period.