Papanna vs Venkataswamy and Another

N.K. Patil, J.—The petitioner, being aggrieved by the order impugned dated 11.7.2008 passed on I.A. No. VII in O.S. No. 695 of 1999 on the file of the learned XXIV Additional City Civil and Sessions Judge, Bangalore rejecting the application filed by the petitioner under Order 6, Rule 17 read with Section 151 of CPC, has presented the instant writ petition.

The petitioner has filed an application I.A. No. VII under Order 6, Rule 17 read with Section 151 of CPC praying to amend the prayer column of the plaint by adding additional prayer for the relief of declaration declaring that the plaintiff is the absolute owner in possession of the suit schedule property, produced at Annexure-C. The said application filed by the petitioner had come up for consideration before the trial Court. The trial Court, after hearing both the sides and after considering the statement made in the accompanying affidavit alongwith the application and the objection filed by the respondents and after framing necessary points for consideration with reference to the material available on record and also with reference to the judgments of the Apex Court relied upon by the learned Counsels appearing for the respective parties, has rejected the application holding that it is very clear that amendment cannot be allowed when the relief is barred by limitation. Questioning the correctness of the impugned order passed by the trial Court, the petitioner has presented the instant writ petition.

I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

The principal submission canvassed by the learned Counsel for the petitioner is that, the order impugned rejecting the application filed by the petitioner seeking amendment of prayer column of the plaint by adding additional prayer for the relief of declaration declaring that the petitioner is the absolute owner and in possession of the suit schedule property, on the sole ground that the relief sought in the application is barred by limitation is not sustainable since the petitioner has made a declaration on oath by filing accompanying affidavit along with the application that the proposed amendment does not alter the nature of the suit as the necessary pleadings are already do exist and necessary documents have already been marked and therefore, the order impugned is vitiated. To substantiate the said submission, he placed heavy reliance on the judgment of the Apex Court in the case of Sampath Kumar Vs. Ayyakannu and Another, and taken through paragraphs 7 and 9 of the judgment and has specifically pointed that the question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. He further submitted that when the basic structure of the suit is not altered by the proposed amendment, the trial Court ought not to have rejected the application and therefore, the order impugned is liable to be set aside.

Per contra, the learned Counsel for the respondents, inter alia, contended and substantiated the order impugned passed by the trial Court. He submitted that the said order has been passed in strict compliance of the relevant provisions of the CPC and placing reliance on the judgments on the Apex Court. He further submitted that the petitioner is not diligent to redress his grievance at an earlier stage and there is inordinate delay in filing the application seeking amendment and if the said application is allowed at this belated stage, the right accrued to the respondents will be defeated for no fault of them. To substantiate his submission, he placed reliance on the judgment of the Apex Court reported in AIR 2007 SCW 513,AIR 2007 SCW 1967 and ILR 2001 Kar 3060 and submitted that if the ratio of law laid down by the Apex Court is taken into consideration, the order impugned passed by the trial Court does not call for interference and therefore, the writ petition filed by the petitioner may be dismissed as devoid of merits.

I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents.

After careful perusal of the grounds urged by the petitioner and also the application for amendment including the order impugned, what it emerges is that the petitioner has filed an application under Order 6, Rule 17 read with Section 151 of CPC vide Annexure-C seeking amendment by adding para a(i) after para (a) in the prayer column "to declare that the plaintiff is the absolute owner in possession of the schedule property". It is significant to note that in para 5 of the affidavit accompanying the application, the petitioner has specifically stated on oath that the proposed amendment does not alter the nature of the suit as the necessary pleadings are already do exist and necessary documents have already been marked. In para 6, the petitioner has stated that if the proposed amendment is not allowed, he will be put to great hardship, on the other hand, no hardship or prejudice would be caused to the defendants besides it avoids multiplicity of proceedings between the parties. This aspect of the matter has not been looked into nor appreciated by the trial Court and it has proceeded on a different footing and rejected the application on the sole ground that the same is barred by limitation. It is pertinent to note that during the course of the submission, the learned Counsel for the petitioner, at the out set, submitted that the site in question has been granted by Grama Panchayath in the year 1972 in favour of the petitioner whereas, the same site has been granted in favour of the respondents in the year 1977. When both the parties are claiming right on the basis of grant, the trial Court ought to have referred to the stand of the respective parties and should have taken view in a pragmatic manner to see that no injustice is caused to the parties. This aspect of the matter has not at all been considered by the trial Court and the application has been rejected solely on the ground that it is barred by limitation. The said reasoning given by the trial Court is not sustainable and is liable to be rejected at the threshold as rightly pointed out by the learned Counsel for the petitioner. Further, in the case of Sampath Kumar Vs. Ayyakannu and Another, relied upon the learned Counsel for the petitioner, the Apex Court has specifically held that if the basic structure of the suit is not altered by the proposed amendment and what is sought to be changed is the nature of relief sought for by the plaintiff, amendment can be allowed as it would curtail multiplicity of legal proceedings. If the proposed amendment is not touching the basic relief sought by the petitioner and is in no way affects or prejudices his rights, to avoid filing of another independent suit by the plaintiff on the same cause of action for the relief, why cannot it be permitted to be incorporated in the pending suit. If the law laid down by the Apex Court is taken into consideration in the case on hand and without giving much importance for the delay in moving the application for amendment, the question of delay may not be calculated from the date of institution of the suit alone, but by reference to the stage to which the hearing in the suit has proceeded. In the instant case, the basic structure of the suit is not altered by the proposed amendment nor it prejudices the rights of the respondents. Therefore, I am of the considered view that the order impugned passed by the trial Court is not sustainable and is liable to be set aside.

So far as the reliance placed by the learned Counsel for the respondents as referred to above, there is no dispute or quarrel regarding the well-settled law laid down by the Apex Court in the said cases. However, the facts and circumstances of those cases are entirely different from the case on hand and are of no assistance to the respondents and hence, the ratio laid down in the said cases cannot be made applicable to the case on hand.

In the light of the facts and circumstances of the case as stated above and taking into consideration the totality of the case on hand, the instant writ petition stands disposed of with the following directions:

Writ petition filed by the petitioner is allowed in part. The order impugned passed by the XXIV Additional City Civil and Sessions Judge, Bangalore dated 11.7.2008 on I.A. No. VII in O.S. No. 695/1999 is hereby set aside. I.A. No. VII filed by the petitioner is allowed subject to the condition that the petitioner shall pay a sum of Rs. 5,000/- as costs to the respondents through their Counsel within a period of ten days from today. The trial Court is directed to proceed with the matter and dispose of the same in accordance with law after affording opportunity to the petitioner and the respondents, expeditiously.