Narasamma and Others vs Lakshmamma and Others

Budihal R.B., J.—1. Petitioners filed the petition requesting the Court to set-aside the order dated 16.02.2015 passed on I.A. No. 4 in O.S. No. 973/2003 by the XI Addl. City Civil Judge, Bengaluru City, produced at Annexure-A.

Petitioners-plaintiffs filed the suit before the Trial Court seeking specific performance of the agreement of sale as against defendant No. 1, who is said to have executed the agreement of sale. Subsequently, the application I.A. No. 4 came to be filed by the petitioners herein under Order VI Rule 17 of CPC to amend the pleadings and also the relief column seeking declaration that the sale deed dated 19.09.2002 executed by defendant No. 1 in favour of defendant No. 2 is null and void; said application I.A. No. 4 was opposed by respondent-defendant No. 2 by filing objections. After considering the merits of the said application, ultimately, the Trial Court rejected the said application I.A. No. 4. Being aggrieved by the same, petitioners-plaintiffs are before this Court.

Heard the arguments of the learned counsel appearing for the petitioners-plaintiffs and also the learned counsel appearing for the respondents-defendants.

Learned counsel for the petitioners-plaintiffs, who are the LRs of the original plaintiff, has submitted that, as defendant No. 1 executed the agreement of sale in favour of plaintiff, suit was filed before the Trial Court seeking specific enforcement of the agreement of sale. He has also submitted that during the pendency of the said suit, petitioner-original plaintiff came to know that defendant No. 1 executed the sale deed in favour of defendant No. 2 under the registered sale deed in respect of the very suit schedule property. Therefore, the plaintiff has firstly filed the application seeking impleadment of the subsequent purchaser i.e., defendant No. 2 in the said suit and the said application though was opposed, the Trial Court allowed the said application and the subsequent purchaser was impleaded as defendant No. 2 in the said suit. He has further submitted that it is also noticed that defendant No. 2 filed the suit seeking permanent injunction against the petitioners-plaintiffs before the Mayo Hall Court, Bengaluru, and the said suit was decreed against which, the LRs of the plaintiff i.e., petitioners have preferred the RFA Challenging the legality and validity of the judgment and decree and the said matter is still pending.

Learned counsel for the petitioners has also submitted that in view of the execution of sale deed by defendant No. 1 in favour of defendant No. 2, petitioners filed the amendment application seeking the relief that the said sale deed is null and void and the Trial Court wrongly rejected the amendment application holding that the said sale deed is prior to filing of the suit and if the said amendment application is allowed it is going to change the nature of the suit from specific performance to the suit for declaration and the Trial Court also assigned the reason that issues have already been framed and there is no issue casting the burden on any of the parties of the said sale deed dated 19.09.2002 and there is also decree in favour of defendant No. 2 giving relief of permanent injunction as against the LRs of the plaintiff. It is submitted that all these reasons assigned by the Trial Court are totally irrelevant and they are not touching to the point in issue in the case on hand.

Learned counsel for the petitioners has submitted that impleadment application has already been allowed by the Trial Court as he is the subsequent purchaser, the property purchased by the proposed person, who has been impleaded as defendant No. 2 is also in respect of the same suit schedule property, even if, the petitioners-plaintiffs succeeded in the suit getting the specific enforcement of the suit, the decree becomes useless and again petitioners have to initiate another proceedings, which leads to multiplicity of proceedings. It is also submitted that this amendment application was filed much earlier, and after filing the amendment application the Trial Court framed the issues after lapse of five years. Hence, he has submitted that there is no delay in filing such application, immediately after coming to know that defendant No. 2 purchased such a property, the amendment application has been filed. Hence, he has submitted that to resolve the dispute and to decide the suit more effectively and satisfactorily it is necessary to allow the amendment application, but the Trial Court wrongly rejected the same on the ground of delay and the issues have already been settled.

Learned counsel for the petitioners has further submitted that mere delay is not a ground for rejection of the amendment application. He has relied upon the decision reported in , AIR 2015 SC 2270 in the case of Mahila Ramkali Devi & others v. Nandram (D) Thr. LRs. & others and submitted that in the said case though there was a delay of 40 years in filing the application, Hon''ble Supreme Court allowed the said application setting aside the order passed by the Court below. Hence, he has submitted to allow the petition and to set-aside the order challenged in this petition.

Per contra, learned counsel for the respondents during the course of his arguments has submitted that when the original plaintiff filed the application before the Trial Court seeking impleadment of defendant No. 2 after coming to know about the purchase of the property by defendant No. 2, plaintiff ought to have filed the said application seeking amendment at that time only, but the plaintiff waited for a period of two years and thereafter come up with the present application. He has submitted that plaintiff has not denied the execution of the sale deed by defendant No. 1-Lakshmamma in favour of defendant No. 2 and only after the death of said Lakshmamma, the petitioners have come up with the present application, because the respondents cannot produce said Lakshmamma before the Court for recording her evidence. Hence, he submitted that on the basis of the said sale deed, he filed suit for injunction against the petitioners, which was contested and the decree was passed and the Court granted permanent injunction against the petitioners. No doubt true, the said judgment and decree was challenged in Regular First Appeal, in which proceedings are still pending.

Learned counsel for the respondents has also submitted that ratio in the said decision relied upon by the learned counsel for the petitioner cannot be a precedent, it may be under the facts and circumstances in that reported decision. Hence, he submitted that the Trial Court taken all these aspects into consideration and ultimately rejected the amendment application. There is no illegality in the order passed by the Trial Court and there is no merit in this petition and hence, submitted to reject the same.

Learned counsel for the respondents has also submitted that, even if, respondent No. 2-defendant No. 2 is not impleaded in the said suit, even if, petitioner plaintiff is not permitted to amend the plaint seeking leave in favour of the plaintiff, but still under the provisions of Section 19(b) of Specific Relief Act, the purchaser is bound by the decree and the plaintiff can very well execute the decree, provided the ingredients and provisions of the said Section are complied with.

I have perused the grounds urged in the petition, pleadings of the parties, copies produced along with the petition, plaint, written statement, so also the amendment application and the impugned order passed by the Trial Court, which is challenged in this petition.

The case of the petitioners-plaintiffs for filing of the suit for specific enforcement of the agreement of sale is that defendant No. 1 entered into agreement of sale with the original plaintiff. Said agreement of sale is dated 07.02.2000. The sale deed said to have been executed in favour of defendant No. 2 by defendant No. 1-Lakshmamma is dated 19.02.2002.

Looking to the prayer made in the amendment application, the plaintiff contended that the said sale deed is fabricated and it is not at all executed by defendant No. 1-Lakshmamma and somebody has impersonated deceased Lakshmamma in obtaining the alleged sale deed. Hence, plaintiff sought in respect of the sale deed by way of declaratory relief in the said suit. It is not in dispute that the sale deed in favour of defendant No. 2 is also in respect of the very same suit schedule property. It is also not in dispute that the earlier application filed seeking impleadment of the subsequent purchaser i.e., defendant No. 2 has been allowed by the Trial Court holding that he is a necessary party for the disposal of the said suit.

However, the Trial Court rejected the amendment application on the ground that there is delay in filing the said application and the issues have already been settled and therefore, at such point of time, the amendment application cannot be allowed. But the facts clearly show that the amendment application was filed by the plaintiff six years earlier to framing of the issues by the Trial Court and it is true that there was delay of two years after filing the application seeking impleadment of defendant No. 2.

When the sale deed is also in respect of the same property, as it is rightly submitted by the learned counsel for the petitioners, if the proposed amendment is not allowed and such a relief is not permitted to raise in the said suit, it leads multiplicity of proceedings. Even if there is decree for specific performance, petitioners-plaintiffs cannot execute the decree because the property is already sold in favour of defendant No. 2 and because of the said reason, petitioners-plaintiffs wanted to raise the pleading and relief column by way of proposed amendment. Even if the said amendment application is allowed, defendant No. 2 is still permitted to file his additional written statement and he is also having an opportunity to cross-examine the petitioners-plaintiffs during the course of trial, but simply because the issues have been framed in the suit and there is a decree for injunction in the suit filed by defendant No. 2, the proposed amendment cannot be refused by the Court. When the amendment application was filed at the stage when the evidence was not commenced and issues were also not framed, the Trial Court ought to have allowed the said amendment application, but it was wrongly rejected the same. Hence, the order passed by the Trial Court rejecting the amendment application is illegal and not in accordance with law. Hence, petitioners have made out a case for allowing the petition. Accordingly, petition is allowed and the order dated 16.02.2015 passed on I.A. No. 4 in O.S. No. 973/2003 passed by the XI Addl. City Civil Judge, Bengaluru City, produced at Annexure-A is hereby set-aside and the amendment application filed by the petitioners is allowed. The petitioners have to carry out the amendment before the Trial Court.