K.T. Ramaiah vs K.T. Venkataswamy

Mr. Aravind Kumar, J.—Plaintiff/petitioner calling in question the order date 25-2-2015, Annexure-L, passed by Principal Civil Judge (Senior Division), Bangalore Rural District, Bangalore in O.S. No. 2013 of 2005 dismissing I.A. Nos. 11, 13 and 17 filed under Order 6, Rule 17 of Civil Procedure Code, 1908 for amendment of plaint.

I have heard the arguments of Sri Shivashankar, learned Counsel appearing for petitioner and Sri G. Manivannan, learned Counsel appearing for respondents 1 to 4. Insofar as respondents 5 to 7 are concerned, records would indicate that they have been served on the learned Counsel who is appearing for them before Trial Court and they are not represented by any Counsel. Hence, service of notice held sufficient. Writ petition is taken up for final disposal by consent.

Parties are referred to as per the rank in Trial Court namely, petitioner as plaintiff and respondents 1 to 4 as defendants 1 to 4. Plaintiff filed a suit for partition and separate possession in respect of suit schedule properties claiming ⅙th share. Defendants on service of suit summons appeared and filed their written statement as per Annexure-B (defendants 1, 3 and 4) and it was contended by them that there was a prior partition entered into between the parties; there is severance of status or disruption in the joint family status and as such, plaintiff would not be entitled for relief sought for. Averments made in plaint except to the extent expressly admit therein, came to be denied. Defendants 5 to 7 who filed the written statement as per Annexure-B(1) admit the contents of plaint and sought for suit being decreed.

On the basis of pleadings of parties, Trial Court framed issues for its adjudication. Before commencement of trial three (3) applications came to be filed i.e., I.A. Nos. 11, 13 and 17 for amendment of plaint. Under I.A. No. 11 plaintiff sought for incorporating additional paragraphs 8(a) to 8(d) and to insert additional prayer in prayer column and three items in suit schedule properties. Under I.A. No. 13 plaintiff proposed to incorporate one more item of property as item 38 to suit schedule properties. Under I.A. No. 17 plaintiff proposed to incorporate paragraphs 6(a) to 6(e) in the plaint and to incorporate the properties described therein as having been allotted to different persons under alleged panchayat parikat being inequitable. Said applications came to be resisted by defendants 1 to 4 by filing statement of objections and Trial Court after considering rival contentions has dismissed the applications primarily on three grounds namely:

(i) Plea put forward by plaintiff in I.A. Nos. 11 and 13 is diametrically opposite to plea put forward in I.A. No. 17 namely in I.A. Nos. 11 and 13 plaintiff has contended that there was no partition at all, whereas in I.A. No. 17 he is assailing panchayat parikat as being hit by inequitable distribution of properties and thereby admitting said partition in family;

(ii) Since trial has commenced allowing applications would lead to dc novo trial;

(iii) Records produced by parties would indicate that there is severance of status and parties had acted upon alleged partition of 1981 propounded by defendants 1 to 4 by impugned order date 25-2-2015, Annexure-L.

It is the contention of Sri Shivashankar, learned Counsel appearing for petitioner that finding recorded by Trial Court that applications are liable to be dismissed on the ground that trial having been commenced, is erroneous, inasmuch as, trial is yet to commence. He would also elaborate his submission by contending that in the first stage plaintiff has specifically contended that there was no partition and properties are joint family properties and after written statement was filed, defendants 1 to 4 propounded the panchayat parikat dated 8-1-1981 and it was noticed by plaintiff that properties allotted to the share of plaintiff when compared to the properties allotted to the share of respondents'' father it would be minuscule or in other words, there was inequitable distribution of properties and as such it was contended that on both grounds it is to beheld that there is no partition in the joint family properties and even if it is held there was a partition in the joint family, said family panchayat parikat propounded by defendants would itself indicate that there has been inequitable distribution of properties and as such i t is not binding on plaintiffs. It is contended that in order to place these material facts on record proposed amendment is necessary and hence learned Counsel prays for allowing the writ petition.

In support of contentions raised learned Counsel appearing for petitioner has relied upon following judgments:

(i) Rajkumar Gurawara (dead) through L.Rs v. M/s. S.K. Sarwagi and Company Private Limited and Another, AIR 2008 SC 2303;

(ii) South Konkan Distilleries and Another v. Prabhakar Gajanan Naik and Others, AIR 2009 SC 1177;

(iii) Abdul Rehman and Another v. Mohd. Ruldu and Others, 2012(5) KCCR Sh. N. 387 (SC)

Per contra, Sri Manivannan, learned Counsel appearing for respondents 1 to 4 would support the impugned order and would vehemently contend that even after filing of suit, for past 10 years plaintiff has not proceeded with the case and on one or the other pretext plaintiff has been dragging on the proceedings and as such applications in question have been rightly dismissed by Trial Court. He would submit that right vested to defendants cannot be taken away by permitting plaintiff to amend the plaint or include new plea, particularly when defendants have already disclosed their defence of there being a prior partition in the year 1981. He would also submit that claim of plaintiff is barred by limitation and as such, order of Trial Court rejecting the applications deserves to be affirmed. On these grounds he seeks for rejection of the writ petitions.

Having heard the learned Advocates appearing for parties and on perusal of pleadings and after bestowing my careful and anxious attention to the contentions raised at the bar, this Court is of the considered view that subsequent to amendment of CPC in the year 2002, embargo placed as per proviso to Rule 17 would clearly indicate that refusal of amendment subsequent to commencement of trial is general rule and allowing is exception. To put it differently allowing the application for amendment prior to commencement of trial is general rule and dismissing the application is exception. Keeping these principles in mind when the facts on hand are examined it would clearly indicate that undisputedly trial in the present suit has not yet commenced. There is no dispute with regard to relationship of parties namely, father of plaintiff and father of defendants 1 to 7 being children of Sri K.C. Thammegowda. In other words, there is no dispute with regard to relationship of parties. On the one hand plaintiff is contending that there is no partition of joint family properties and by way of alternate plea he would also contend that even if plea of defendants with regard to there has been a partition in the year 1981 were to be accepted, same is to be held as not binding on plaintiff since there has been inequitable distribution of properties under said partition and as such, said partition would not be binding on plaintiff and as such suit schedule properties are sought to be partitioned between the members of joint family. On the other hand, defendants 1 to 4 have vehemently contended that joint family properties came to be partitioned by panchayat parikat way back on 8-1-1981 and same has been acted upon by parties including plaintiff and as such, plaintiff has no right to question the same at this length of time, particularly when plaintiff himself has acted upon on the said panchayat parikat. Hence they have prayed for dismissal of writ petitions.

At the stage of considering an application for amendment, Courts would not embark upon conducting roving enquiry so as to ascertain as to whether contents of plea is true or not? or whether parties would succeed or fail? Such an exercise would not be undertaken while considering an application for amendment. What is required to be considered is as to whether embargo placed under proviso to Rule 17 Order 6 of CPC would be attracted to the facts of the case, requires to be considered at the threshold. In the instant case, this Court is not placed in such a situation since admitly trial has not yet commenced. As such, contention raised in this regard by learned Counsel appearing for respondents 1 to 4-Sri Manivannan, cannot be accepted.

It requires to be further noticed that amendment of pleadings can be permitted to be brought at any stage of trial for determining real controversy of parties and it has been held by the Apex Court that a liberal approach has to be adopted in this regard. For this proposition judgment of Hon''ble Apex Court in the case of South Konkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors., AIR 2009 SC 1177 vide paragraph 8 can be looked into. In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84, the Apex Court has indicated the contours for considering an application for amendment of pleadings and it has been indicated thereunder they are illustrative in nature and not exhaustive. It has been held therein as follows:

"Factors to be taken into consideration while dealing with applications for amendments:

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17 . These are only illustrative and not exhaustive."

Applications for amendment of plaint which are in question came to be filed before commencement of trial. As to whether there was earlier partition between family members as pleaded by defendants 1 to 4 and if so, in the said partition whether there was inequitable distribution of properties as pleaded by plaintiff, can be considered by Trial Court only after conclusion of trial. At this stage, this Court cannot express any opinion on this aspect as it would definitely prejudice rights of either of the parties. If application for amendment is allowed, defendants would definitely have a right to file additional written statement traverse the said pleadings and also tender evidence in support of said denial. Under similar circumstances Apex Court in the case of South Konkan Distilleries has held to the following effect:

"8. Before we deal with the orders of the Courts below, as to whether the application for amendment of the written statement and the counter-claim was rightly rejected or not, let us consider the laws on the question of allowing or rejecting a prayer for amendment of the pleadings when the plea of limitation was taken by one of the parties in the suit. It is well-settled that the Court must be extremely liberal in granting the prayer for amendment, if the Court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well-settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. In L.J. Leach and Company Limited and Another v. M/s. Jardine Skinner and Company, AIR 1957 SC 357, this Court at paragraph 16 of the said decision observed as follows:

"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice.""

It is true that there has been delay in filing the applications for amendment of plaint. Delay defeats equity. Suit in question is for partition and separate possession. Though, defendants have filed their respective written statements in the year 2006/2007, they did not take any steps to get the suit disposed of. On the other hand, plaintiff has filed I.A. Nos. 11 and 13 in the year 2009 and I.A. No. 17 was filed in the year 2012. On the other hand it is plaintiff who took steps to get the suit disposal of at an early date by filing W.P. No. 53182 of 2013 before this Court and Co-ordinate Bench by order dated 30-6-2014 (Annexure-C) directed the Trial Court to dispose of the suit within one (1) year from date of receipt of said order. It is thereafter Trial Court has taken up the matter for disposal. In fact order sheet of the Trial Court relating to the suit in question dated 6-2-2015 would indicate that order placing defendants 9 and 11 ex parte came to be set aside on 6-2-2015 and on next dale of hearing i.e., 25-2-2015 order impugned in this writ petition came to be passed. As such it can be safely concluded that no 3rd party rights have been created during the period of pendency of suit. On account of inordinate delay in filing the applications and as rightly contended by Sri Manivannan, learned Counsel appearing for respondents 1 to 4 and proceedings having been dragged on it has occasioned delay. However, same can be suitably compensated by awarding costs in favour of defendants. Further, defendants would not be prejudiced in any manner if amendment of plaint is allowed since: they will have opportunity to meet the case of plaintiff by filing additional written statement.

In the case of Abdul Rehman it has been held by the Hon''ble Apex Court that unless Court comes to a conclusion that party could not have raised the plea before commencement of trial, proviso to Rule 17 curtails absolute discretion to allow amendment and in the event of trial having commenced, burden is on applicant to demonstrate that in spite due diligence, he could not raise such plea. At the cost of repetition, as observed herein above, said situation has not arisen in this case namely, trial has not yet commenced.

In that view of the matter, applications of plaintiff are deserves to be allowed and as such, for reasons indicated herein above, this Court proceeds to pass the following:

ORDER

(i) Writ petitions are hereby allowed.

(ii) Order dated 25-2-2015 passed in OS No. 2013 of 2005, Annexure-L, dismissing I.A. Nos. 11, 13 and 17 are hereby quashed.

(iii) I.A. Nos. 11, 13 and 17 - Annexures-D, E and F filed under Order 6, Rule 17 of CPC are hereby allowed on payment of cost of Rs. 5,000/- each payable by plaintiff to defendants 1 to 4.

(iv) Payment of costs by plaintiff to defendants 1 to 4 shall be condition precedent for proceedings with the suit.

(v) Respondents/defendants would be at liberty to raise all contentions in the additional written statement that may be filed by them, which shall be considered, and adjudicated by Trial Court on merits and in accordance with law.

Since Co-ordinate Bench of this Court has already issued a direction to dispose of suit within a time frame, yet again issuing similar direction would not arise. However, it is made clear that Trial Court shall keep in mind the direction already issued by this Court and Order 17 of CPC and dispose of suit expeditiously within the time frame already fixed. It is needless to state that if any of the parties were to seek for any adjournment without satisfaction of Trial Court, it would be at liberty to impose costs on such of those party.