K. Manjunath vs K. Gurunath

Budihal R.B., J.—1. This petition is filed seeking to set aside the order dated 21.11.2015 passed on I.A. No. 15 filed under Order 6 Rule 17 r/w Section 151 of CPC by the VIII Addl. City Civil & Sessions Judge (CCH 15), Bangalore in O.S. No. 8722/2006 produced as per Annexure ''E''.

Heard the arguments of learned counsel for the petitioner-plaintiff and also learned counsel for respondent-defendant.

Plaintiff filed the suit for permanent injunction and subsequently filed amendment application I.A. No. 15 requesting the Court to permit him to amend the pleadings and also the relief column and also sought for declaration and recovery of possession. The said application was opposed by the other side by filing objection statement. After considering the merits of the application, ultimately, trial Court rejected the amendment application. Being aggrieved by the same, petitioner-plaintiff is before this Court.

Learned counsel for the petitioner-plaintiff during the course of his arguments submitted that though the suit filed was for permanent injunction, but during the pendency of the suit as the defendant highhandedly trespassed into the suit schedule property and came into the possession of the same, plaintiff filed the amendment application before the trial Court seeking amendment of pleadings and also relief column to add the prayer for declaration and also recovery of possession from the defendant. Learned counsel has submitted that the amendment is necessary because of the subsequent events taken place during the pendency of the suit. The trial Court has rejected the amendment application mainly on the ground that the said application has been filed after long delay in the matter and only with an intention to drag on the proceedings. This approach of the trial Court is not correct and the rejection of the amendment application is illegal and not sustainable in law. He has relied upon the decision of the Hon''ble Supreme Court reported in , 2002(4) KCCR 2839 in the case of Sampath Kumar v. Ayyakannu and another and submitted that in the said judgment also amendment application was subsequently allowed, which was for the relief of declaration of title and consequently delivery of possession. The facts in the case on hand so far as seeking amendment is concerned are substantially one and the same. Hence, he has submitted to allow the application by allowing the writ petition and set aside the order of the trial Court.

Per-contra, learned counsel for the respondent-defendant during the course of his arguments submitted that in the suit evidence on both sides was concluded in the year 2013 itself. The matter was posted for hearing the arguments from March 2014. If at all it is the contention of the plaintiff that by subsequent events he has been dispossessed as alleged in the amendment application, he ought to have filed the said application immediately after the said incident that has taken place. He drew the attention of this Court to paragraph No. 3 of the amendment application and submitted that the alleged dispossession was on 12.9.2007 and the amendment application has been filed in the year 2015 after the lapse of nearly 8 years and when the matter was set down for hearing the arguments. Hence, after the amendment of CPC in the year 2002 adding proviso to Order 6 Rule 17 of CPC, the Court has to satisfy itself regarding the due diligence by the parties while seeking amendment of their pleadings. Regarding exercising his due diligence, there is no material placed by the plaintiff to hold that he did not know about the facts which he wanted to plead by way of amendment. This clearly shows the malafide intention on the part of the plaintiff that the said application was filed only with an intention to drag on the proceedings. The trial Court has taken all these aspects into consideration and ultimately rejected the amendment application holding that plaintiff has not made out a case to allow the application. Learned counsel appearing for the respondent-defendant in support of his arguments, has relied upon two decisions, one reported in , AIR 2008 SC 2303 in the case of Rajkumar Gurawara (Dead) Thr. L.Rs. v. M/s. S.K. Sarwagi and Co. Pvt. Ltd., and Another, Head Note ''B'' of the said decision reads as under:

"(B) Civil P.C. (5 of 1908), O.6, R. 17, Proviso - Amendment of plaint after commencement of trial - Permissibility - Suit for declaration - Plaintiff claiming exclusive right to do mining operations over suit lands - Govt. had leased out lands for mining operations to a private Company - In spite of being put in knowledge of said fact, plaintiff did not implead Company to suit or take steps for necessary amendment -Amendment prayed for at argument stage for claiming relief of recovery of possession of suit lands and damages from Company -Cannot be allowed."

another decision reported in , AIR 2008 SC 2171 in the case of Ashutosh Chaturvedi v. Prano Devi and others and the principle enunciated in the said decision by His Lordship''s of Hon''ble Supreme Court which reads as under:--

"Civil P.C. (5 of 1908), O.6, R. 17 -Amendment of plaint - Declaratory suit -Plaintiffs claim for title and for setting aside sale deeds executed by defendant in favour of third parties - Prayer for amendment of plaint to claim preferential right under S.22 of Hindu Succession Act on premise that plaintiff was co-sharer of suit lands - Such preferential right can ordinarily be claimed within one year - Plaintiff seeking amendment after 13 years - Facts that sale deeds were executed in violation of injunction order or that matter was pending in lower Court for long period - Cannot be ground to allow amendment."

Hence, learned counsel submitted that no illegality has been committed by the trial Court, neither there is capricious nor perverse view taken in rejecting the application. Hence, there is no merit in the writ petition and the same is to be rejected.

I have perused the grounds urged in the writ petition, impugned order of the trial Court on the amendment application I.A. No. 15, pleadings of the parties, plaint, written statement so also, the amendment application filed under Order 6 Rule 17 r/w Section 151 of CPC filed seeking amendment of pleadings as well as the relief column in the suit. I have also perused the decisions relied upon by the learned counsel on both sides referred to above and the principles enunciated in the said decisions.

Looking to the materials placed on record, admittedly plaintiff filed the suit for bare injunction against the defendant to restrain him from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property bearing Khatha No. 33/2 situated at 20th ''C cross, Aradhana layout, Ejipura Viveknagar PO, Bangalore with the boundaries mentioned therein. During the pendency of the suit, amendment application came to be filed wherein in paragraph No. 3 of the application it is alleged that, ''dispossession of the plaintiff from the suit schedule property by the defendant on 12.9.2007 in violation of the status-quo order dated 30.9.2006 by lodging a complaint against the plaintiff and his brother with the jurisdictional police station who readily obliged the defendant and enabled him to get into the possession of the suit schedule site by dispossessing him thereby the plaintiff lost the possession of the suit schedule property''. This pleading even according to the plaintiff shows that the alleged dispossession of the plaintiff by the act of defendant is on 12.9.2007 and the amendment application was filed before the trial Court on 8.10.2015 i.e., after lapse of nearly 8 years.

Now looking to the provision of Order 6 Rule 17 of CPC regarding amendment of pleadings is concerned, after the amendment of CPC in the year 2002, a proviso was added to the said provision which states that once the evidence in the matter has commenced then the Court cannot allow the amendment application unless the case comes under the said proviso. The said proviso also makes it clear that the party filing the amendment application has to make out a case that in spite of exercise of due diligence in the matter, he was not having knowledge of the facts which he wanted to plead by way of amendment. But in this case, admittedly, the alleged dispossession is in the year 2007 and when the plaintiff has waited till 2015 nearly for a period of 8 years to file the amendment application, no satisfactory reasons are made out by the plaintiff to allow such application. Under such circumstances, it cannot be said that petitioner was diligent and in spite of that he was not having the knowledge of his dispossession in the case. When the dispossession is within the knowledge and the date is also mentioned in the amendment application, it cannot be inferred by the Court that the plaintiff has made out a case under the proviso to Order 6 Rule 17 of CPC.

I have also perused the decision relied upon by the learned counsel for the petitioner. Looking to the facts and circumstances in the said decision, it shows that the amendment application in the said case was filed before commencement of trial in the said case. As submitted, in the case on hand, evidence on both sides was closed and the matter was set down for hearing the arguments from March 2014. Thereafter, after one year, the amendment application came to be filed. I have also gone through the principle enunciated in the decisions relied upon by the learned counsel for the respondent-defendant. According to the principle in the said two decisions also, I am of the opinion that the trial Court is justified in rejecting the amendment application. Therefore, the decision relied upon by the learned counsel for the petitioner-plaintiff will not come to the aid and assistance of the petitioner herein.

I do not find any illegality in the order of the trial Court nor there are any justifiable and valid grounds for this Court to interfere into the order of the trial Court in this writ petition. Hence, it is hereby rejected. In view of the rejection of the petition, I.A. No. 1/2016 filed for vacating stay does not survive for consideration. Accordingly, it is disposed of.