Rangamma and Smt. Lakskmamma vs Mahadeva Shetty

Ashok B. Hinchigeri, J.—The petitioner has raised the challenge to the order, dt. 11.06.2009 [Annexure-E] passed by the Court of the II Addl. District Judge, Mysore on I.A. No. I in R.A. No. 38/2004.

The facts of the case in brief are that the respondent filed the suit against the petitioners seeking the relief of declaration and consequential permanent injunction in respect of the schedule property. The suit was decreed in part on 15.06.2004. It reads as follows:

It is further ordered and decreed by declaring that the sale deed executed by the 1st defendant in favour of 2nd defendant dated 23.9.1996 in respect of schedule property is null and void.

It is further ordered and decreed that the plaintiff is entitled for relief of possession of the suit schedule property, and the defendants No. 1 and 2 are directed to hand over the possession of the suit schedule property to the plaintiff within 3 months from the date of this order.

It is further ordered and decreed that the defendants are directed to pay a sum of Rs. 354.00 to the plaintiff being the cost of the suit.

Aggrieved by the aforesaid judgment and decree, the petitioner filed R.A. No. 35/2004 and the respondent filed R.A. No. 38/2004. The learned District Judge allowed R.A. No. 35/2004 by setting aside the judgment and decree, dt. 15.06.2004 passed by the Trial Court. Consequently O.S. No. 266/1997 stood dismissed. R.A. No. 38/2004 filed by the respondent was dismissed as devoid of merits. Aggrieved by this judgment, the respondent filed R.S.A. Nos. 1405/2008 and 1406/2008. This Court by its judgment, dt. 25.09.2008 set aside the lower Appellate Court''s judgment The operative portion of the judgment reads as follows:

Both the appeals are allowed and the judgment of the lower appellate court is set aside and the matter stands remitted to the lower appellate court to consider the question relating to the possession of the suit schedule property and the parties are also given the liberty to file necessary applications in this regard to amend the respective pleadings and thereafter, the lower appellate court shall dispose of the matter by recording its finding as regards the possession factor is concerned.

Pursuant to the passing of the aforesaid judgment by this Court in the said regular second appeals, the respondent filed I.A.I in the remanded matter for the inclusion of the aforesaid prayer in the suit.

Alternatively if this honorable court comes to the conclusion that the Plaintiff is not in possession of the Plaint Schedule property, then for the relief of possession, directing the Defendants to put the Plaintiff in possession of the suit property.

The first Appellate Court allowed the said LA by its order, dt. 11.06.2009. Feeling aggrieved by the same, this petition is presented.

Smt. Jayashree, the learned Counsel appearing for the petitioners submits that the date of amendment cannot relate back to the date of the institution of the suit. Otherwise the party would be deprived of the opportunity to raise the point of limitation. In support of her submissions, she has relied on the judgment of the Hon''ble Supreme Court in the case of Sampath Kumar Vs. Ayyakannu and Another, , She has relied on the following paragraphs:

An amendment once incorporated relates hack to the date of the suit However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Another Vs. Mamtha Shenoy, ).

In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already preferred his title by way of adverse possession then the right so accrued should not be (Mowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.

Nextly, the learned Counsel submits that the first Appellate Court ought to have considered the respondent''s I.A. for amendment alongwith the main matter only. In support of her submission, she has relied on the judgment of the Apex Court in the case of State of Rajasthan v. T.N. Sahani, (2001) 10 SCC 618 . The relevant paragraph of the said judgment is extracted hereinbelow.

It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy pointed out the scope of unamended provision of Order 41 Rule 27 (c) that though there might well be cases where even though the court found that it was able to pronounce the Judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of Justice something which remained obscure should be filled up so that it could pronounce its Judgment in a more satisfactory manner. The is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law.

The last submission urged on behalf of the petitioners is that all along the respondent claims to be in possession of the suit schedule property. That being the case, he cannot be permitted to seek the relief of recovery of possession.

Per contra, Sri O. Shivarama Bhat, the learned Counsel for the respondent submits that the respondent has only exercised the liberty reserved to him by this Court while disposing of the regular second appeals. He submits that the First Appellate Court may have to remand the matter in its turn to the Trial Court for framing the additional issue on the point of limitation in the most unlikely event of the Appellate Court forming the prima facie view that the claim is barred by limitation. He makes this guarded submission without prejudice to his submission that the respondent''s claim is not barred by limitation. He has also relied upon the Hon''ble Supreme Court''s judgment in the case of Ragu Thilak D. John v. S. Rayappan and Ors. reported in (2001) 2 SCC 472, wherein it is held that even if the amendment sought changes the nature of the suit, the amendment cannot be refused; the dominant purpose of Order 6 Rule 17 is to minimise the litigation. He has also relied upon the judgment of the Hon''ble Supreme Court in the case of State Bank of Hyderabad v. Town Municipal Council reported in 2007(1) KCCR 346 to buttress his submission that as the amendment does not put the petitioners to any prejudice, it cannot but be allowed.

It is not in dispute that the judgment passed by this Court on 25.09,2008 in R.S.A Nos. 1405/2008 and 1406/2008 has attained the finality. This Court has expressly reserved the liberty to the parties to file the applications for amendment of their respective pleadings. Thereafter the first Appellate Court has to consider the question relating to the possession of the suit schedule property. Pursuant to the passing of this judgment, amendment application is filed, which is allowed by the first Appellate Court.

It is profitable to refer to the Hon''ble Supreme Court judgment in the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, , wherein it is held that the Court has wide discretion to allow the amendment application even when the relief sought thereby is barred by limitation. There is no absolute rule that amendment in such a case should not be allowed. Courts discretion; depends upon the facts and circumstances of each case; and the discretion has to be exercised in a judicious manner. The relevant paragraphs of the said judgment are extracted hereinbelow:

The low in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should net be allowed. Discretion in such cases depends on the facts and circumstances of the case. The Jurisdiction to allow or not allow an amendment being discretionary, the some will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.

This view of this Court has, since, been followed by a three-Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the court in allowing or disallowing such amendment in the interest of justice.

The facts of the instant case and the facts of the cases in State of Rajasthan and Sampath Kumar (supra) are entirely different. That the I.A ought to have been considered with the main matter in the case of State of Rajasthan (supra) is in the context of considering the application under Order 41 Rule 27 CPC for production of additional evidence.

My reasoned scrutiny of the impugned order reveals that permitting the respondent to seek the alternative relief of possession is to avoid the multiplicity of proceedings. Further what has weighed with the Trial Court is that the respondent has not proposed to amend the body of the plaint But for the incorporation of the prayer for the relief of possession, the averments of the plaint remain the same and the evidence on record remains the same. As the Appellate Court formed the considered view that the amendment in question is required to resolve the real controversy between the parties and as the petitioners are not. being put to any injustice thereof, it has allowed the arnendment application. It is a well-considered order requiring no reversal in the proceedings under Article 227 of the Constitution of India. However, the petitioners are put to some inconvenience. They are therefore to be compensated in terms of money. I therefore confirm the order of the Appellate Court allowing the amendment application but by imposing the cost of Rs. 3,000/- on the respondent payable to the petitioners within two weeks from today. It is made clear that the benefit of the Appellate Court''s order allowing the amendment application would remain accrued to the respondent, only if he pays the cost within the prescribed time.

This petition is disposed of accordingly.