Suresh vs Veena and Others

R.S. Chauhan, J.—The petitioner is aggrieved by the order dated 28.01.2015, passed by the Senior Civil Judge, Yallapur, whereby the learned Senior Judge has dismissed the petitioner''s application under Order 6 Rule 17 CPC for seeking an amendment in the written statement filed by him.

In short, the facts of the case are that the respondent No. 1, Smt. Veena, filed a civil suit for specific performance and declaration against the petitioner-defendant No. 1 and against Balakrishna-respondent No. 1 (before this Court). In the plaint, she claimed that the petitioner-defendant No. 1, is the owner of ''A'' schedule property. On 22.12.2005, the petitioner-defendant No. 1 and Smt. Veena, entered into an agreement of sale in ''A'' schedule property. The said property was to be sold to Smt. Veena for a consideration of Rs. 1,90,000/-. Out of the said consideration amount, the plaintiff paid Rs. 1,00,000/- to the petitioner. Subsequently, on 02.02.2006, she paid the balance amount of Rs. 90,000/- to the petitioner. Thus, the petitioner-defendant No. 1 has received the full consideration amount. But due to the fact that there were some encumbrances on the said suit property of Ankola Urban Bank and Angod Co-operative Society, the sale deed could not be registered. The petitioner assured the plaintiff, that as soon as the loans are cleared, he would secure the permission of the Deputy Commissioner. Despite repeated request of the plaintiff, to have the sale deed registered, the petitioner refused to do so. Consequently, the civil suit was filed. Along with the civil suit, the plaintiff filed an application under Order 39 Rules 1 and 2 CPC.

The petitioner not only filed his objection to the interim application for temporary injunction, but also requested the Court to treat the said objection as his written statement. During the course of the trial, after the examination-in-chief of PW1 was over and after seeking three adjournments for cross-examining PW1, the petitioner filed an application under Order 6 Rule 17 CPC and sought to amend the written statement. The petitioner claimed that, although the agreement to sale in favour of the defendant No. 2 was entered into much prior to the filing of the suit, the sale deed was registered with the defendant No. 2, only thereafter, i.e., on 13.11.2009. He further raised certain contentions that the plaintiffs husband is a Government employee, who is receiving a salary of more than Rs. 2,00,000/-. Therefore, the plaintiff could not purchase any agricultural land under the provisions of the Karnataka Land Reforms Act. Moreover, the plaintiffs husband had to seek prior permission of the Government before the plaintiff, the wife, could purchase any land in her name. Lastly, the defendant No. 2 had improved the condition of the land after investing a large amount. However, by the impugned order, the said application was dismissed. Hence this petition before this Court.

Mr. Girish Yadwad, the learned counsel for the petitioner, has vehemently pleaded that the petitioner was merely trying to bring subsequent development of the case on record. Therefore, the application for amendment should have been allowed. Secondly, that the endeavor of the Court always is to discover the truth. Even if there was a delay of five years, even then the amendment should have been allowed by the learned Civil Judge. In order to buttress this submission, the learned counsel has relied upon the case of N. Vijaya Lakshmi v. Honnali Lingappa (W.P. No. 111681/2014 decided on 29.10.2015).

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

Although Order 6 Rule 17 CPC permits amendment of the plaint or the written statement, at any stage, but the proviso thereto restricts the right to amend after the commencement of the trial. According to the proviso, an amendment can be permitted, if and only if the Court is convinced that the facts, which are sought to be introduced, could not have been discovered by the party, even after due diligence. Moreover, while considering an application for amendment, while the Court is certainly concerned with the discovery of the truth, it is equally concerned with the conduct of the party seeking an amendment. Since the endeavor of the Court is also to complete the trial within the shortest period of time, right to amend the plaint or the written statement cannot be used by a party to prolong the trial.

In the present case, the fact that the plaintiffs husband was a Government employee and was earning Rs. 2,00,000/-, the fact that certain law would bar the purchase, was well within the knowledge of the petitioner. It was also well within his knowledge that the Government servants require prior permission of the Government before buying any property himself or through his wife. Therefore, these two facts, which the petitioner is trying to bring through the amendment, were well within his knowledge, while filing his objection to the temporary injunction application, which he had requested should be treated as the written statement. As far as the fact that much prior to the filing of the suit, the petitioner had entered into an agreement of sale with the defendant No. 2, even this fact was well within the knowledge of the petitioner. Therefore, no new facts have been brought on record, which were not within the knowledge of the petitioner, when he had filed his objections in the year 2009 itself. Thus, the petitioner is certainly hit by the proviso contained in Order 6 Rule 17 CPC.

Further, a bare perusal of the impugned order clearly reveals, that the petitioner had claimed that he could not have introduced his amendments, as he is an illiterate person and the mistake was made by his earlier advocate and the amendments are being introduced only by the subsequent counsel. However, this contention was rejected by the learned Civil Judge. For although the petitioner may be an illiterate person, he had hired the services of one of the senior most lawyers of the Bar. Therefore, this plea of ''ignorance of law'' could not be raised by him.

Considering the conduct of the petitioner, the learned Civil Judge has clearly noticed that the objections were filed as far back as 2009, the alleged sale deed was entered on 13.11.2009, yet from 2009 to 2014, the petitioner did not move any applications for amending the petition. The said application has been filed only after the examination-in-chief of P.W.1 was over, and after the petitioner had sought three adjournments for his cross-examination. While considering an application for amendment, as stated above, the conduct of the party is an essential factor to be kept in mind. Instead of permitting the Court to complete the trial within a reasonable time, certain facts are now being introduced, which would require framing of fresh issues. However, these facts, especially that with regard to bar in law, which prevent the plaintiff from buying the land, would further prolong the trial. Therefore, this Court is also of the opinion that the filing of the application is merely a clever ploy to prolong the trial.

Lastly, even if the petitioner had entered into an agreement of sale with the respondent No. 2, much before the filing of the suit and the sale deed was registered on 13.11.2009, i.e., after the filing of the suit, obviously the transaction would be hit by Section 54 of the Transfer of Property Act. This particular issue was already noticed, when the plaintiff had also filed an application under Order 6 Rule 17 CPC and had clearly claimed that the transfer of property during the pendency of the trial, would be hit by Section 52 of the Transfer of Property Act. Therefore, no fruitful purpose would be served, if the amendment application were allowed.

As far as the case of the N. Vijaya Lakshmi (supra) is concerned, the said case is different from the present one on factual matrix itself. In the said case, the respondent had filed an amendment application for bringing on record certain documents, which he had recovered from the Revenue Department, much after the suit was filed. Since these documents were relevant for the controversy involved, thus this Court was of the opinion that even if the respondent had tried to discover these documents with due diligence, it could not have been discovered prior to the commencement of the trial. However, as these documents are essential for deciding the controversy, the amendment was rightly allowed by the learned trial Court. However, the present case is not a case of discovery of certain documents, which are beyond the possession and beyond the knowledge of the petitioner. The facts mentioned by the petitioner in the application under Order 6 Rule 17 CPC were well within his knowledge, when he had filed the objections to the temporary injunction application.

For the reasons stated above, this Court does not find any merit in the present petition. It is hereby dismissed.