K.N. Narayanaswamy vs Chikkanna

Budihal R.B., J.—1. Heard the arguments of the learned counsel appearing for the writ petitioner/defendant and also the learned counsel appearing for the respondent/plaintiff.

The writ petitions have been filed by the petitioner/defendant challenging the order dated 04.12.2015 passed by the Trial Court on the applications, I.A. Nos. 8 and 9 filed seeking amendment of the pleadings under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure and production of additional documents under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, which are produced as per Annexure - ''A''.

Learned counsel appearing for the writ petitioner/defendant during the course of her arguments submitted that when the suit was filed furnishing the boundaries to the suit schedule property, the writ petitioner/defendant in the written statement took the contention that the boundaries are not correct. Hence, disputed the identity of the suit schedule property. The learned counsel further submitted that looking into the materials placed on record before the Trial Court, there are five boundaries came on record in respect of the suit schedule property. Hence, she submitted that because of these reasons, after conclusion of the trial, the Trial Court dismissed the suit of the respondent/plaintiff. An appeal was preferred challenging the judgment and decree passed by the Trial Court and in the appeal, two applications were filed, i.e., seeking amendment of the pleading and production of additional evidence. Learned counsel submitted that the First Appellate Court has not at all discussed anything to allow the said applications except stating that it is necessary in the larger interest of full and complete justice to the parties. Hence, learned counsel submitted that the said applications were filed at the belated stage, the applicant/appellant has to make out a case. Hence, she submitted that the order is illegal and is not in accordance with law and the same has to be set aside.

Per contra, the learned counsel appearing for the respondent/plaintiff during the course of his arguments submitted that to avoid multiplicity of proceedings, the said amendment was necessary. He also submitted that another application was filed for production of additional evidence with regard to the documents produced along with the application. Hence, he submitted that there is no illegality in the order of the First Appellate Court and accordingly, writ petition be rejected.

Learned counsel appearing for the respondent/plaintiff in support of his contention relied upon the decision of the Hon''ble Supreme Court and draws the attention of this Court to Para No. 14 of the Judgment reported in , (2007) 6 SCC 737 (Ramchandra Sakharam Mahajan v. Damodar Trimbak Tansale (dead) and others). Hence, he requested this Court to reject these writ petitions.

I have perused the grounds urged in the writ petitions and the impugned order passed by the Trial Court as per Annexure - A; documents produced along with the petition by the petitioner/defendant so also, the decision of the Hon''ble Supreme Court and the principles enunciated in the decision relied upon by the learned counsel appearing for the respondent/plaintiff. Looking to the materials placed on record, the plaintiff/respondent filed the suit seeking for the relief of declaration of title of the plaintiff over the suit schedule property and for consequential relief of permanent injunction to restrain the defendant or his agents or anybody from interfering, encroaching, disturbing or obstructing in any manner the peaceful and lawful possession and enjoyment of the plaintiff in respect of the suit schedule property.

The said suit was contested by the writ petitioner/defendant. In Para No. 14 of the said written statement, defendant has specifically contended that the documents produced by the plaintiff are all created for the purpose of the suit and to grab the property of the defendant and by showing the wrong boundaries, plaintiff is falsely claiming the property of the defendant. So, by filing such written statement on 19.02.2009, plaintiff challenged the correctness of the boundaries to the suit schedule property. Inspite of that, no steps were taken by the plaintiff regarding the measurement of the boundaries to the suit property. Ultimately, the suit came to be dismissed by the judgment and decree passed by the Trial Court. When the appeal was preferred, the appellant/plaintiff filed two applications seeking amendment of pleadings and even it included correction of the boundaries of the suit schedule property and also another application under Order 41 rule 27 read with Section 151 of CPC for production of additional evidence in the case. The said applications were also objected by the writ petitioner/defendant by filing objection statement. Inspite of that the First Appellate Court allowed both the applications.

I have perused the order passed by the First Appellate Court. It has observed that there is no change in the nature of the suit and the said amendment as per the rules of justice, equity and good conscious is to be allowed and it is also observed by the First Appellate Court that the power of granting amendment should be exercised in the larger interest of full and complete justice to the parties, it is necessary to allow the application. I have also perused the decision relied upon by the learned counsel for the respondent/plaintiff. Para No. 14 of the said decision reads as under:

"The question, therefore, is whether the plaintiff had established his title to the suit property. The plaintiff, though somewhat belatedly, attempted to amend the plaint to make his claim more precise so as to enable the Court to adjudicate upon it more satisfactorily. We see force in the contention of learned Senior Counsel for the appellant that the Trial Court ought to have allowed the amendment so as to enable it to decide the dispute in a more satisfactory manner. The Appellate Court, it appears to us, was also not justified in harping upon the so-called absence of bona fides on the part of the plaintiff in approaching the Court. What was called for, was an independent appraisal of the various documents produced by the plaintiff in the light of the pleadings and the oral evidence available, to come to a conclusion whether the plaintiff had established his title or not. In that context, the Appellate Court ought to have seen that the Trial Court was in error in refusing the amendment of the plaint which would have enabled the Court to render a decision in a more satisfactory manner".

Looking to the stage of filing the application, it is no doubt true that amendment application can be filed even at the belated stage also and there is no bar. Looking into the provisions of amended Civil Procedure Code, Order 6 Rule 17, it is provided that once there is commencement of evidence, amendment application not to be allowed. But Proviso is provided to the said provision, if it is made out by the party, that inspite of exercise of due diligence, applicant was not knowing about the facts, which are to be brought by way of amendment, then the amendment application can be considered. As I have observed above, the correctness of the boundaries is challenged in the written statement, which are going to be amended by way of amendment application in the appeal proceedings. Even if such application is filed, the Appellate Court has to pass the order on merits, considering the objections raised by the writ petitioner/defendant. Looking to the order passed by the Court below dated 04.12.2015, it is not a speaking order. Therefore, the said order calls for interference by this Court. Looking to the facts and circumstances in the reported decision relied upon by the learned counsel appearing for the respondent/plaintiff and the stage of filing the applications with the reasons assigned in the application, they are not exactly the one and the same in reported decision as well as in the case on hand. As the order is not at all a speaking order by the First Appellate Court, the writ petitioner has made out a case.

Accordingly, the writ petitions are allowed. The order dated 04.12.2015 passed by the First Appellate Court on both the application is hereby set aside. The matter is remitted back to the First Appellate Court to hear on the applications afresh and to dispose of both the applications in accordance with law.

The above observations made by this Court are only for the purpose of this writ petitions. The First Appellate Court should not be influenced by the said observations and to consider the applications independently and to dispose of in accordance with law.