Irawwa and Others vs Shivappa Adiveppa Choudhari and Others

K.N. Phaneendra, J.—The petitioners are the defendants and respondents are the plaintiffs in OS No. 17/2011 on the file of the Senior Civil Judge, Mudhol.

The plaintiffs have filed the suit originally for declaration that they are the exclusive owners in possession of their respective shares as described in the paragraph 3(a), 3(b) and 3(c) of the plaint and for consequential injunction restraining the defendants from alienating or transferring the suit schedule properties.

Originally, the plaintiffs have stated that the suit schedule properties earlier were joint family and ancestral properties, but those properties were divided among the plaintiffs and that the plaintiffs have got their respective shares as described at paragraph 3 of the plaint. The plaint also describe the shares allotted to the defendants and ultimately the plaintiffs claim that they are entitled for exclusive ownership over the shares allotted to them and also for consequential reliefs. It appears, the defendants have filed their written statement, categorically denying the plaint averments and also previous partition. Thereafter, the plaintiffs wanted to withdraw the suit on the ground that there are certain technical errors in the plaint by filing IA No. II under Order XXIII Rule 1(3) read with Section 151 of Code of Civil Procedure, for withdrawing the suit with a liberty to file fresh suit. The said application came to be rejected by the trial Court. Against that order, the plaintiffs have filed CRP No. 1121/2011 and vide order dated 31.10.2012, this court while confirming the order passed by the trial Court under Order XXIII Rule 1(3) of Code of Civil Procedure granted liberty to the defendants to file additional written statement. Apart from that, this court also observed that the petitioners (plaintiffs) were granted liberty to amend the plaint including to bring the subsequent events on record in the plait, such liberty would be available to the plaintiffs so as to file the amended plaint within a period of 15 days from the date of furnishing certified copy of this order before the trial Court. The trial Court shall permit the plaintiffs to amend accordingly and thereafter grant liberty to the defendants to file additional written statement if they seek to do so. However, while passing the above said order, this court has observed that the petitioners/plaintiffs need not file a separate application seeking amendment to the plaint. The said order was produced before the trial Court along with the amended plaint seeking the indulgence of the court to take the said amended plaint on record and thereafter to permit the defendants to file their written statement. That was contested by the defendants stating that without there being any application under order VI Rule 17 of Code of Civil Procedure, such plaint cannot be permitted to be filed before the court. But, the trial Court has taken the said amended plaint on record. The defendants have again come up before this Court by way of Writ Petition in Writ Petition No. 76483/2013 (GM-CPC) and vide order dated 30.10.2013, this court has directed the plaintiffs to file necessary application under order VI Rule 17 in order to amend the plaint. In accordance with such observation, the plaintiffs have filed application under Order VI Rule 17 read with Section 151 of Code of Civil Procedure vide application dated 13.11.2013 along with their affidavit and the proposed amendment to the plaint as per Annexure-D.

The trial Court after considering the application, affidavit and the proposed amendment and also the objections filed by the defendants, allowed the said amendment application. Against that order the present Writ Petition is filed calling in question the orders on IA No. V dated 3.9.2014.

The learned Counsel for the petitioners strenuously contends that if one peruses the proposed amendment of the plaint, it virtually replaces the entire original plaint. It altogether replaces the entire paragraphs of the plaint and the prayer is also changed in the suit. Therefore, it virtually changes the basic structure of the suit itself and as such, such an amendment cannot be allowed by the court in order to plead altogether different pleadings and as well as seeking for altogether foreign prayers compared to the original prayers.

The learned Counsel for the petitioners further contends that along with the pleadings, evidence is also pleaded. As such it is the basic principle of pleadings that the evidence need not be stated in the pleadings. Therefore, he contends that the amendment application deserves to be dismissed and the trial Court has committed a serious error in allowing such an application.

Per contra, Miss Rekha Patil, learned Counsel for the respondents equally countered the arguments of the leaned counsel for the petitioners submitting that if the contents of the proposed amendment is perused, it is nothing but the elaboration of the original plaint averments giving minute details with regard to the claim of the plaintiffs. It will not change the basic structure of the suit and the prayer is little bit changed because of the moulding of the reliefs by the plaintiffs in view of the subsequent events that had taken place. Therefore, she submits before the court that the nature of the suit will not be changed, basic structure will not be changed, then such amendment can be allowed by the court.

Before adverting to the contents of the proposed amendment, I feel it is just and necessary to observe here that once the court refuses to grant remedy under Order XXIII Rule 1(3) of Code of Civil Procedure, it debars the party from filing fresh suit on the same cause of action and also if he does not claim any relief for which he is entitled to, he is also not entitled to file any such suit under Order II Rule 2 of Code of Civil Procedure, which bars him from filing fresh suit. When the courts have allowed the party to amend the plaint, it indirectly goes to show that the plaintiffs have to convert their suit into a comprehensive suit so as to claim all their reliefs and mould their reliefs according to the pleadings so as to set at rest all the litigation between the parties at once instead of driving one of the parties to some other litigation. This is the main object of permitting the parties to amend the plaint during the pendency of the suit proceedings even before evidence being recorded or to some extent even after the evidence being recorded. Even some circumstances may arise to amend the plaint by bringing the subsequent events to be part and parcel of the suit, in order to get the relief which have been not sought in the plaint earlier. Therefore, perhaps that may be the reason this court has also allowed the plaintiffs to amend the pleadings even incorporating all the subsequent events.

In the above said background, now let me go through the original plaint. As I have already narrated, in the original plaint, the sum and substance of the case of the plaintiff is that the family had got several properties, they are joint family properties or ancestral properties and the said properties were divided amongst the plaintiffs and defendants long back and their shares have been already divided and those things are substantially stated at paragraph 3 as to what are the properties fallen to the share of the plaintiffs and defendants and ultimately they claim that they are the exclusive owners of the said shared and for consequential relief. The sum and substance of the case of the defendants is that they are the absolute owners of the property and there was absolutely no Joint Family is in existence, therefore, the suit itself is not maintainable either for any declaration or for any consequential injunction. By means of subsequent amendment, in view of the stand taken by the defendants and also subsequent events that has taken place i.e., to say the defendants during the pendency of the suit alienated some of the suit schedule properties creating interest in the third parties, it goes without saying that if any property is sold during the pendency of the suit, the same is subject to the decision of the suit and even transfer without permission of the court is hit by Section 52 of the Transfer of Property Act, unless the court permits the parties to alienate the property during the pendency of the suit. In order to adjudicate the rights of the parties including the subsequent purchasers, such amendment can be allowed.

In this background, it is seen that in the proposed plaint, in the first paragraph of the plaint, the entire description of the properties are narrated, the genealogical tree of the respective parties is shown and at paragraph 3 it is elucidated how these properties were acquired by the Joint Family and to show that they are the ancestral properties and in the succeeding paragraphs, it is stated as to how these properties were allotted to the shares of the plaintiffs and as well as the defendants. At paragraph 15 it is stated that how during the pendency of the suit, the defendants have alienated the suit schedule properties creating third party interest and ultimately at paragraph 20, the reliefs have been moulded in accordance with the subsequent events by incorporating the prayer.

The prayer column at paragraph 20 of the amended plaint, it is clear that the plaintiffs again are asking for the declaration that they are the owners in possession of the suit schedule properties originally shown and if for any reason, the court comes to the conclusion that the defendants have created third party interest, for fresh partition of the property, if the court holds that there was no partition at all, and to allocate the share in favour of the plaintiff. If for any reason, the court comes to the conclusion that the possession is parted with by the defendants and the plaintiffs were not in possession of the property alienated, for separate possession by metes and bounds.

Looking to the proposed amendment, as rightly submitted by the respondents'' counsel, it is a detail and elaborate explanation given in the subsequent proposed amendment application, in order to bring the suit in a comprehensive manner so as to set the entire litigation between the parties finally at rest. As I have already observed, suppose in the event of the application is not allowed and if any one of the prayer is left out in the plaint, plaintiffs are debarred from filing a fresh suit and all the avenues would be closed. Looking to the above said facts and circumstances of the case, I am of the opinion that, when the basic structure or constitution of the original plaint or prayer is not changed, by virtue of the proposed amendment, it is only an elaborate version of the original plaint and by virtue of the proposed amendment, relief is moulded, it cannot be at any stretch of imagination, said that it is altogether a new case is introduced which was not there in the earlier plaint.

In the above said circumstances, I do not find any strong reason to interfere with the order passed by the trial Court on IA No. V. However, it is made it clear that the defendants if they want to file any additional written statement to the proposed amendment, they are at liberty to file the same within 15 days from the date of receipt of the copy of this order.

With the above said observation, the petition is dismissed.