S.S. Chaithra Vivek vs S.P. Ramu and Others

Budihal R.B., J.—1. This petition is filed requesting the Court to quash or set-aside the impugned order dated 11.02.2014 passed on I.A. Nos. 13 and 14 in O.S. No. 6773/2008 by the III Addl. City Civil and Sessions Judge, Bengaluru (CCH-25).

Heard the arguments of the learned senior counsel appearing for the petitioner-defendant and also the learned counsel appearing for respondents-plaintiffs.

The respondents-plaintiffs filed the suit before the Trial Court seeking ejectment of the petitioner-defendant from the schedule premises and also for damages and arrears of rent. The petitioner-defendant contested the said suit by filing the written statement. During the pendency of the suit, petitioner herein filed the applications i.e., I.A. Nos. 13 and 14, seeking amendment of the written statement and also to take the contention of the counter claim, the respondents-plaintiffs filed the objection statement to the said applications. The Trial Court after considering the applications I.A. Nos. 13 and 14 on merits, ultimately, dismissed the said applications. Being aggrieved by the same, petitioner-defendant is before this Court.

Learned senior counsel for the petitioner during the course of his arguments has submitted that the scope seeking the amendment of written statement is wider than scope of seeking the amendment of plaint. He has submitted that the written statement is going to be amended. He has also submitted that when the proposed amendment is necessary to resolve the dispute between the parties, then, in that case the said amendment is to be allowed irrespective of the fact that there is any amount of delay in filing such application. He has also submitted that in this case, though the suit for ejectment is filed alleging that there was a lease agreement between respondents-plaintiffs and petitioner-defendant, but in the pleadings it is also contended that there was also a mortgage transaction. Therefore, in order to clarify and also to know whether there is a jural relationship between the parties, the said amendment was necessary. He has submitted the Trial Court rejected the amendment application mainly on the ground of delay. Hence, he has submitted that while considering the amendment of pleadings, Courts will have to be liberal in its approach and only on the ground of delay, the amendment cannot be rejected. In support of his contention, learned senior counsel has relied upon the following decisions:

i. , 2015(10) SCC 203 in the case of Ram Niranjan Kajaria v. Sheo Prakash Kajaria and draw the attention of this Court to the relevant paragraph No. 22.

ii. , AIR 1957 SC 357 in the case of L.J. Leach and Co., Ltd., and another v. Messrs. Jardine Skinner and Co., and draw the attention of this Court to the relevant paragraph Nos. 14, 15 and 16.

iii. , AIR 1969 SC 1267(1) in the case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon.

iv. , AIR 1985 SC 582 in the case of S. Sundaram Pillai, etc., v. V.R. Pattabiraman.

v. , AIR 2006 SC 2832(1) in the case of Baldev Singh and Ors. v. Manohar Singh and Anr. Etc.

vi. , (2006) 6 SCC 498 in the case of Baldev Singh and Others vs. Manohar Singh and another.

vii. , AIR 2007 SC 1663 (1) in the case of Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors.

viii. , 2012 AIR SCW 2257 in the case of Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. & Ors.

ix. , 2012 AIR SCW 5419 in the case of Abdul Rehman and Anr. v. Mohd. Ruldu and Ors.

x. , ILR 2012 KAR 5552 in the case of Ravindrakumar vs. The State of Karnataka, rep., by Deputy Commissioner, Bidar and Others.

Referring to the above decisions, learned senior counsel for the petitioner has submitted that the Trial Court ought to have allowed the amendment application and also counter claim made by the petitioner-defendant in the said suit, but the applications were wrongly rejected by the Trial Court.

Learned senior counsel has further submitted that the provisions with regard to the amendment of the pleadings, that too, more particularly, the written statement has been wrongly interpreted by the Trial Court, which resulted in rejecting the said application. Hence, he has submitted to allow the petition and to set-aside the order passed by the Trial Court and to allow the applications I.A. Nos. 13 and 14.

Per contra, learned counsel for the respondents-plaintiffs during the course of his arguments has submitted that plaintiffs filed the suit seeking ejectment of the petitioner-defendant from the suit schedule premises and there is no transaction of mortgage as contended by the other side. Earlier to filing of these two applications, the petitioner-defendant has filed an application I.A. No. 9 seeking permission to file the additional written statement and after hearing on merits, the said application was rejected by the Trial Court. He has submitted that subsequent to the dismissal of I.A. No. 9, present applications came to be filed. Whatever the grounds urged in the application I.A. No. 9 for filing the additional written statement are the same grounds in the proposed amendment applications. Hence, he has submitted that as the petitioner-defendant has not succeeded in getting the application I.A. No. 9 allowed by the Court below, she has come up with these two applications. Learned counsel has submitted that he has filed the objections to the said applications and also submitted that evidence on both sides was closed, matter has been posted for arguments and even the arguments were also partly heard and at that stage, application making counter claim cannot be allowed at all and in this connection, he has relied upon the decision of this Court rendered in W.P. No. 35596/2010 dated 15.12.2010 reported in , 2011 (1) KCCR 258 in the case of M. Shravan Kumar and R. Ashok Kumar BAnsali Vs. Rajesh Exports Limited and submitted that in the said decision, the decision of the Hon''ble Supreme Court in Rohit Singh v. State of Bihar , (2006) 12 SCC 734 was also considered for the similar issue and ultimately this Court held that after framing all the issues in the suit, the application making the counter claim cannot be entertained at all.

Hence, learned counsel has submitted that in view of this legal proposition and the factual aspects of the matter, the Trial Court properly appreciated the matter and rightly came to the conclusion in dismissing the applications i.e., I.A. Nos. 13 and 14. Hence, there are no valid and justifiable grounds for this Court to interfere into the order passed by the Trial Court in this petition and submitted to dismiss the petition.

I have perused the grounds urged in the petition, impugned order passed by the Trial Court on applications I.A. Nos. 13 and 14, which is a common order. So also I have perused the pleadings of the parties, copies of which are produced i.e., plaint and the written statements.

Looking to the averments in the plaint and the relief claimed in the suit filed by the respondents-plaintiffs, it is a suit for ejectment of petitioner-defendant from the schedule premises and delivery of possession, directing the defendant to pay damages at the rate of Rs. 40,000/- per month from the date of suit till the vacating of the schedule premises by the defendant and to direct the defendant to pay the arrears of rent in a total sum of Rs. 1,00,000/- uptill August, 2008. Looking to the proposed amendment and also the counter claim made by the petitioner, petitioner wanted to amend the pleadings as per paragraph Nos. 3a, 3b and 3c as mentioned in the application I.A. No. 13. Both the applications are supported by the affidavits; in paragraph No. 3 of the said affidavits, petitioner has prayed the Court to permit the amend the written statement, which is filed in the above case and to adduce further evidence to produce the important document, which could not have been produced during the course of evidence, as the said document was produced in criminal proceedings, by bonafide mistake this document was not produced in the case. So by making such affidavits in support of the applications, the cause and the reasons made out by the applicant, who is the petitioner herein, that the documents were in the criminal proceedings by mistake she did not come to know about the same and she has taken back the documents from Magistrate Court and is producing the same before the Court in support of the amendment application.

Looking to the contentions raised by learned senior counsel that the amendment application is to be construed liberally and the decision relied upon by him, which are referred above, many of the decisions, which are relied upon by the learned senior counsel are before the amendment of Code of Civil Procedure (CPC) in the year 2002, but after the amendment of CPC, and adding to proviso to Order VI Rule 17 of CPC, now the discretion of the Court is to see whether, the case comes under the proviso to Order VI Rule 17 of CPC, once evidence commenced. Therefore, the party seeking amendment of pleadings after commencement of evidence in the case, necessarily has to make out the case that inspite of exercise of due diligence, the party was not knowing about the fact, about which amendment application was filed seeking to incorporate those factual aspects in the pleadings.

With regard to the decisions relied upon by the learned senior counsel for petitioner, which are referred above, are concerned, the facts and circumstances in those decisions are not exactly one and the same compared to the facts and circumstances in the case on hand. Therefore, they will not come to aid and assistance of the case of the petitioner seeking allowing the applications I.A. Nos. 13 and 14.

Apart from that, the other factual aspects, which is necessary in this case that even earlier also the application I.A. No. 9 was filed, which is an admitted fact even according to petitioner herein, seeking permission of the Court to file additional written statement and in the additional written statement also the same contentions were raised by the petitioner herein, when the application was considered on merits and by the considered order, the said application was rejected, thereafter, the present applications are filed. Therefore, the learned counsel for respondents-plaintiffs is justified in making the submission that as the petitioner has lost the battle in I.A. No. 9, now she wanted to bring those factual aspects by way of seeking amendment and also by making counter claim and looking to the order passed by the Trial Court, same has been observed while passing the orders on I.A. Nos. 13 and 14.

Apart from that, with regard to making the counter claim is concerned, admittedly in this suit the evidence on both sides are closed and matter was posted for arguments and as it is submitted by learned counsel for respondents herein that when the arguments were being heard, at that time said applications were filed. In this regard, I have perused the decision of this Court relied upon by the learned counsel for respondents for making counter claim by defendant, perusing the decision and also principle enunciated in the said decision, it is clearly held that after framing of the issues as well as additional issues in the matter, the application seeking counter claim cannot be entertained and this Court while passing such order and laying down the principle also referred to the decision of the Hon''ble Apex Court in Rohit Singh v. State of Bihar , (2006) 12 SCC 734. Therefore, considering this legal position as laid down by this Court in the said decision also, the Trial Court is justified in rejecting the applications I.A. Nos. 13 and 14.

So far as making out the case of due diligence is concerned, it is not the case of the petitioner that she was not knowing about the documents, which were in the criminal proceedings, but she has mentioned that through mistake she has not produced those documents at the earliest point of time. Under such circumstances, if at the stage when the matter was fixed for hearing the arguments if such documents are allowed then again, the entire case will be reopened and the parties will be dragged to their original stage of the suit, which will be waste of Courts time and energy, which has already done in the matter. Under such circumstances, I do not find any illegality in the impugned order passed on I.A. Nos. 13 and 14 in O.S. No. 6773/2008 by the Trial Court and there are no valid or justifiable grounds for this Court to interfere into the said order passed by the Trial Court.

Accordingly, petition is hereby rejected.