P. Anjinayalu vs Nagireddy and Others

R.S. Chauhan, J.—Aggrieved by the order dated 18/8/2015 passed by the Additional Civil Judge and J.M.F.C. Ballari, whereby the learned Civil Judge has dismissed the petitioner''s application under Order 6 Rule 17 r/w Section 151 CPC for amending his written statement, the petitioner has approached this Court.

Shortly the facts of the case are that the plaintiff-respondent No. 1, Mr. Nagi Reddy had filed a suit for declaration and possession against the petitioner. In the suit, the plaintiff respondent claimed that on 31/3/1995, the suit property was purchased by his father, Pothappa, from one Kuppa Sanna Veeranna Shetty. His father''s name was entered in the records of right. Subsequently, on 7/8/2000, there was registered partition deed between the plaintiff and his mother. The said suit property fell in his share. Subsequently, even mutation was effected in his name. He further claims that prior to fling of the present civil suit, he had filed another civil suit, namely O.S. No. 320/2002 against the present petitioner, seeking the relief of injunction. Moreover, even the present petitioner had also filed a civil suit against the plaintiff-respondent for permanent injunction namely, O.S. No. 560/2001. Since the petitioner''s civil suit was dismissed against the plaintiff-respondent he had filed a regular appeal.

The petitioner as the defendant No. 1 filed his written statement and claims that he has the legal right title and interest in the suit property. He further claims that he has bought the suit property by registered sale deed. Therefore, he claims that the civil suit would be dismissed.

During the course of the proceedings, the petitioner filed an application under Order 6 Rule 17 r/w Section 151 CPC. However, by the impugned order the said application has been dismissed. Hence, this petition before this Court.

The learned counsel for the petitioner has pleaded that the petitioner was merely trying to explain through the proposed amendment as to how the title of property had flowed from the original owner, to the vender from whom the petitioner had bought the property in 1997. Therefore, the proposed amendment was merely clarificatory in nature. Thus, the petitioner was not changing the nature of the suit. Hence, the proposed amendment should have been allowed by the learned Civil Judge.

Heard the learned counsel for the petitioner and perused the impugned order.

Order 6 Rule 17 of CPC reads as under:-

Amendment of pleadings - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties;

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

Although Order 6 Rule 17 CPC states that the Court may at any stage of the proceedings allow either party to amend his/her pleadings, but the proviso restricts the right to amend the pleading. According to the proviso, the amendment to a pleading can be permitted only prior to the commencement of the trial. It can also be permitted subsequently provided the party convinces the Court that despite the exercise of due diligence the new facts could not be discovered prior to the commencement of the trial.

Since the plaintiff had denied the title of the petitioner, while filing his written statement, the petitioner was duty bound to explain as to how the title of the property has come down to the petitioner. Although the petitioner claims that he had bought the property from one Mukkanna Shetty on 17/7/1995 through a registered sale deed, obviously he could not be unaware of the fact as to how Mukkanna Shetty had gotten the title to the suit property. After all, as a vigilant buyer, when he had bought the property from Mukkanna Shetty, he must have enquired whether Mukanna Shetty had a clear title to the property or not. He must have also enquired as to how Mr. Shetty had acquired the title to the property, whether he had inherited the property, or he had bought the property from someone else. Naturally, these facts were within the knowledge of the petitioner, when he had filed his written statement.

A bare perusal of the impugned order reveals that in his application for the proposed amendment, the petitioner has claimed that "he has recently came to know the facts with regard to how Mr. Shetty had inherited the title to the suit property". The learned Judge has observed that the stand being taken by the petitioner is full of falsehood. For as an earnest and a vigilant buyer, he must have had the knowledge of how Mr. Shetty acquired the title over the said property. Moreover, even earlier both the parties were in litigation, even then the petitioner must have explained as to how he has gotten the title of the property. Therefore, the stand taken by the petitioner that "it is a newly discovered fact as to how Mr. Shetty had the title to the property", such a stand is clearly an after-thought. As such, the stand has been taken merely to misguide the Court.

While dealing with the application for amendment, the Court has to be vigilant about the conduct of the party to the proposed amendment. The present application was filed by the petitioner only after the examination-in-chief of PW-1 was completed, and the petitioner had sought three adjournments for cross examining the PW-1. Moreover, since the false explanation has been given by the petitioner, that he has recently discovered new facts, such a conduct disentitles the petitioner from the right to amend the written statement. After all, any litigant, who comes to the Court with unclean hand, does not deserve any relief from the Court.

The learned counsel for the petitioner has relied on the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., and in the case of H. Aziz Khan and Others Vs. Smt. Muniyamma and Others, in order to buttress the plea that, if the proposed amendment does not change case, amendment should be allowed. However, a bare perusal of the case of North Eastern Railway Administration, (supra) clearly reveals that the issue before the Hon''ble Supreme Court was "whether additional evidence should be permitted to be taken on record at the stage of the second appeal or not". Therefore, Hon''ble Supreme Court had discussed the scope and ambit, of Order 41 Rule 27 CPC. Hence, the said case does not buttress the plea of the petitioner.

As far as the case of Aziz Khan and Others (Supra) is concerned, the said case is distinguishing from the present one on factual matrix. In the said case, the proposed amendment was made at the stage of the Regular First Appeal, which was pending before this Court. Certain amendments were sought in the plaint. This Court was of the opinion that in case that amendments were not allowed, it would lead to multiplicity of litigation between the parties. Therefore, in order to minimize the multiplicity of litigation, and as the proposed amendment in that case would not have changed the nature of the case, this Court had permitted the amendment. However, if the proposed amendment is disallowed by the learned trial Court, it would not lead to multiplicity of litigation between the parties. Thus, the said case does not buttress the plea of the petitioner.

In the case of Vidyabai and Others Vs. Padmalatha and Another, , the Hon''ble Supreme Court has expressed its opinion that the trial commences on the date when the issues are framed. According to the proviso contained in Order VI Rule 17 CPC, an amendment generally cannot be allowed after the commencement of the trial. The Apex Court further observed that the grant of leave by the High Court to amend the written statement was liable to be set aside, as the trial Court, while declining the application under Order 6 Rule 17 CPC, had neither suffered from jurisdictional error, nor from any error of law. Therefore, the Hon''ble Supreme Court had deprecated the interference by the High Court in its writ jurisdiction.

The principles established by the Hon''ble Supreme Court in the case of Vidyabai (supra) are squarely applicable to the present case.

For the reasons stated above, this Court does not find any perversity or illegality in the impugned order. The petition, being devoid of any merit, is hereby dismissed.