M.S. Shivaram vs Nagarathnamma and Others

Aravind Kumar, J.—Heard the learned advocates appearing for parties namely Sri H.V. Harish and Sri A.V. Gangadharappa, appearing for petitioner and respondent respectively. Perused the case papers.

Petitioner, who is plaintiff in O.S. No. 34/1996 being aggrieved by the judgment and decree passed by Court below dismissing the suit for declaration, partition and separate possession for mesne profits and for consequential reliefs of perpetual injunction, had filed an appeal in R.A. No. 100/2010. During the pendency of appeal an application came to be filed under Order 23 Rule 1(3) of CPC seeking permission to withdraw the suit and file a fresh suit on the same cause of action. Appellate Court instead of disposing of the said application on merits and in accordance with law, intriguingly converted the said application as though it is an application filed under Order 43 Rule 23 and remanded matter to the trial Court for disposal afresh vide order dated 15.11.2011.

Being aggrieved by this order of remand, defendants in O.S. No. 276/96 (Old No. 34/96) filed a Miscellaneous Second Appeal in MSA No. 2/2012 before this Court and said appeal came to be allowed by order dated 28.8.2012 and order of remand passed by the Lower Appellate Court came to be set aside and direction came to be issued to the Appellate Court to dispose of the appeal on merits and in accordance with law. Parties were permitted to make necessary application before the Appellant Court and further direction also came be issued to trial court that such applications filed, if any, should be considered in accordance with law and on merits. By virtue of same, appellant filed an application under Order 6 Rule 17 of CPC to amend the plaint vide Annexure-F. Said application, IA-VIII was seriously opposed by respondents/defendants by filing detailed objections and after considering rival contentions, Lower Appellate Court dismissed the same on the grounds; (1) it would change the nature of suit, (2) introduce new cause of action, (3) will take away the admissions elicited in the cross- examination, (4) would cause injustice to the opposite party vide order dated 9.7.2015 (Annexure-A), which is impugned in the present writ petition.

It is the contention of Sri H.V. Harish, learned counsel for petitioner that Appellate Court ought to have noticed that on account of technical defects being conspicuously present in the suit and to stave off the technical plea being raised by defendants before Lower Appellate Court, an application had been filed under Order 23 Rule 1(3) seeking permission of the Court to withdraw the suit and file a fresh suit on the same cause of action and said application having been allowed by Lower Appellate Court, itself indicated that proposed amendment was necessary for adjudication of real controversy between the parties. Hence, he contends that Appellate Court erred in dismissing the application and by virtue of allowing the said amendment, no prejudice or injustice was caused to other side. Hence, he had prayed for allowing the writ petition.

Per contra, Sri A.V. Gangadharappa, learned counsel appearing for respondent No. 8 would support the impugned order by contending that proposed amendment would entirely change from the facts already pleaded in its entirety. Hence, he prays for dismissal of the writ petition.

Perusal of impugned order as well as application in question and objections filed thereto would clearly indicate that by proposed amendment plaintiff is attempting to wipeout entire plea earlier pleaded and substitute it with new pleadings in its place. Defendants have already elicited certain admissions in the cross examination of plaintiff. Thus, admission so elicited by defendants would become inconsequential, in other words, it would be wiped out if the amendment is allowed. As rightly held by trial Court that while considering an application for amendment a liberal approach has to be adopted. Hon''ble Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, has laid down contours for considering an application for amendment, which are illustrative not exhaustive.

"63. On critically analyzing 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:

Whether the amendment sought is imperative for proper and effective adjudication of the case;

Whether the application for amendment is bona fide or mala fide;

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

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

Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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."

It emerges from reading of above judgment that amendment if imperative and very much necessary for adjudicating the real controversy between the parties, deserves to be allowed subject to same not causing injustice to the other side or the admissions elicited in the cross-examination is not taken away by virtue of proposed amendment. In the instant case, Lower Appellate Court has held and rightly so that amendment sought for by plaintiff would introduce a new case and it would also cause injustice to the other party and takes away right of the opposite party. The very fact of plaintiff filing an application under Order 23 Rule 1(3) expressing his apprehension that plaint is lacking with details and as such plaintiff intended to withdraw the suit, is a pointer to the fact that amendment which was sought to be introduced to fill up the lacuna in the pleadings. As such, it cannot be held that there is error committed by the Appellate Court in rejecting the application. As could be seen from the proposed amendment which is not only lengthy, it would also indicate that pleadings already available on record is sought to be deleted in its entirety, particularly paragraphs 3 and 4 of the plaint and in its place plaintiff intended to substitute a new plea which cannot be allowed, since plaintiff based on the said plea has tendered himself for cross-examination and vital admissions have been obtained by defendants while cross-examining the plaintiff. That apart the proposed amendment not only displaces the original plea it would introduce a new case and proposed amendment would also indicate that certain events which have taken place subsequent to fling of suit are sought to be brought on record and same is impermissible, inasmuch as, application for amendment if allowed it relates back to the filing of suit and as such, plaintiff cannot put forth a plea which was not available as on the date of presentation of plaint and as such, same cannot be permitted to brought on record. In that view of the matter, I do not find any merit. Accordingly, writ petition stands dismissed.