Syed Anwar and Others vs Shusheelamma and Others

L. Narayana Swamy, J.—The defendant - petitioner herein has challenged the order passed by the XIV Addl. City Civil Judge, Bangalore in O.S. No. 9097/2004 dated 30.1.2015 and has sought for setting aside the same.

It is submitted that the plaintiff filed a suit for declaration and injunction without seeking possession on 19.12.2004. The LRs of the defendant filed written statement and issued were framed thereafter. The plaintiffs and the defendant''s evidence was closed and the matter was to be posted for arguments on the main suit. At this juncture, the plaintiff filed an application to re-open the case and post the matter for further evidence and also filed an application seeking an amendment of the prayer without any valid reason. The application was objected by the defendant on the ground that the application is filed after three years which is beyond the limitation period. The suit was filed for declaration and injunction. Whereas the I.A. is filed for amendment for amending the prayer seeking possession also. The Court committed an error in allowing the application without giving any reasons for rejecting the objections filed by the petitioner Under these circumstances, the learned counsel for the petitioner requested to allow this writ petition by setting aside the order passed by the learned Judge.

It is also submitted by the petitioner that the impugned action of the learned Judge is totally miscarriage of justice and lacks power to allow the application. The Court also seriously erred in assigning the reasons that the plaintiff has pleaded possession, which is left out in the prayer column and the plaintiff noticed at the time of final arguments, that he has complied with order VI Rule 17 CPC. Hence the learned counsel for the petitioners submitted that the order has been passed without authority of law.

To substantiate his submission, the learned counsel for the petitioners referred number of judgments. By referring the judgment in the case of Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib Dhuka and Others, (2013) 4 ABR 886 : (2013) 5 AD 449 : AIR 2013 SC 3188 : (2013) 116 CLT 357 : (2013) 9 JT 98 : (2013) 2 RCR(Civil) 965 : (2013) 6 SCALE 181 : (2013) 9 SCC 485 : (2013) AIRSCW 3430 wherein the Supreme Court has held that amendment sought for by the plaintiff to incorporate the relief of declaration of conveyance deed is illegal and not only belated one but was clearly an after thought for obvious purpose to avert inevitable consequence. The order of the trial court in allowing the amendment application is erroneous and unsustainable. He has also relied upon the judgment in the cases of S. Malla Reddy Vs. Future Builders Co-operative Housing Society and Others, (2013) 5 AD 270 : AIR 2013 SC 3693 : (2013) 3 CTC 343 : (2013) 171 PLR 650 : (2013) 2 RCR(Civil) 957 : (2013) 6 SCALE 170 : (2013) 9 SCC 349 : (2013) AIRSCW 2405 wherein it has been held by the Supreme Court that the amendment application filed belatedly cannot be entertained.

The learned counsel for the respondent sought to dismiss the writ petition and submitted that the learned Judge has not committed any error in allowing the application and it has been observed by the learned Trial Judge that the whole pleadings are taken into consideration for the purpose of examining the case of the plaintiff. It is submitted that the suit itself was filed for declaration, injunction and possession. On the basis of the pleadings, the court maintained order sheet and in first page of order sheet against column ''nature of case'' it has been mentioned as ''declaration, injunction and possession". This itself shows that the suit was filed for possession also. While paying the Court fee, the valuation slip was filed on 9.12.04 as per Annexure R1 and it has been stated that the plaintiff has filed the above suit against the defendant for declaration of title and possession of the suit schedule property for which the market value of the property is assessed at Rs. 4,50,000/-. This valuation slip was prepared while filing the suit. This fortifies the case of the plaintiff that the suit has been filed by the plaintiff for possession. Under these circumstances, it is submitted by the petitioner that the suit is filed only for declaration cannot be accepted.

On the basis of the written statement filed by the defendants, on the basis of the pleadings of the parties, the trial court has framed as many as 7 issues, out of which, issue No. 2 would be in respect of whether the plaintiff proves that the defendant has trespassed over the suit schedule property and constructed the building over the suit schedule property. In respect of the said issue, the parties have led their evidence and the matter was posted for arguments. At this stage, it was noticed that even the averments made in the plaint specifically stating that the defendant has actually trespassed and occupied the property and the respondent in fact valued the suit as one for declaration and possession and has paid the requisite fee and due to inadvertence a specific prayer has not been sought for directing the petitioner to hand over the possession of the suit schedule property. In order to rectify this error, the present application was filed and the learned Judge has rightly considered the pleadings and allowed the amendment application. In fact valuation slip was filed paying the Court fee assessing the market value of the property in order to claim declaration and possession. Under these circumstances, the respondent submitted that the plaintiff has not committed any error in filing the application at the fag end of the case when it was posted for arguments. There is no delay in it. Even assuming that there is delay, it is always open to the petitioner to make effort at the time of arguments of the main suit and on the ground of delay, the application cannot be dismissed and hence the trial Judge has rightly allowed the application. In support of his contention, the learned counsel for the respondents relied upon the decision in the case of H. AZIA KHAND AND OTHERS v. SMT MUNIYAMMA AND OTHERS, ILR 2004 KAR 2571, decision of the Supreme Court in the case of Puran Ram Vs. Bhaguram and Another, AIR 2008 SC 1960 : (2008) 2 CTC 224 : (2008) 4 JT 37 : (2008) 4 SCALE 40 : (2008) 4 SCC 102 : (2008) AIRSCW 2265 : (2008) 2 Supreme 166 and also decision in the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, AIR 2004 SC 4102 : (2004) 98 CLT 612 : (2004) 4 CTC 231 : (2004) 6 JT 259 : (2004) 6 SCALE 459 : (2004) 6 SCC 415 : (2004) AIRSCW 4522 : (2004) 5 Supreme 772 and submitted that the allowing the amendment application will not change the nature of suit and cause of action.

It is seen that the suit itself was for declaration possession and injunction. The amendment application has to be made under order VI Rule 17 of CPC. It provides parties to make such application for amendment at any stage of the proceedings before the trial commences. For the purpose of trial, it has been held by the Hon''ble Supreme Court that framing of issue is to treat the matter is set down for trial. Once the issues are framed and set down for trial, it is impermissible to file amendment application. However, the proviso to Order VI Rule 17 CPC it further gives discretionary power to the court to accept the amendment if it is satisfied by the Court the due diligence could not be exercised earlier. Order VI Rule 17 CPC, disentitles the person to make such application after commencement of trial. This Court under Article 227 of the Constitution of India has to examine whether the learned Judge has exercised his power within the limits.

The plaintiff filed the suit in the year 2004 for declaration and injunction. It is the case of the petitioner the relief of possession was not sought in the plaint and when such being the case, it is impermissible to file the application for amendment after the case has been set down for trial. In this regard, I have to examine the documents produced along with the objection. From the order sheet maintained by the trial court, in the first page itself, it has been referred in respect of nature of case which is mentioned as the suit is filed for declaration, injunction and possession. This entry is made by the Court necessarily on the basis of the pleadings of the plaintiff. This part has been examined by the trial court while considering the said application. Secondly, the issues were framed on 24.11.06 and the Court has framed as many as 7 issues out of which issue No. 2 is in respect of whether the plaintiff proves that the defendant has trespassed over the suit schedule property and constructed temporary building over the suit schedule property. This issue has been framed on the pleadings of the plaintiff to the effect that the suit schedule property has been encroached by the defendant and put up temporary construction. This issue is on the basis of the pleadings as required under Order VI rule 17 CPC. While filing the suit, the valuation slip has to be presented before the Court and the party has sought declaration of title and possession as he has paid the Court fee as per Annexure R1. It has been stated in the order sheet that the suit has been filed for declaration, injunction and possession for which the suit schedule property was valued on the basis of market value at Rs. 4,50,000/-. It is also examined by the trial Judge that as early as on the date of filing the suit itself, the Court fee has been paid on the basis of the relief of possession of suit schedule property. This matter has been thoroughly examined by the Court below and thus reached conclusion that the application filed by the plaintiff is maintainable.

For due diligence as stated in the proviso to Order VI Rule 17 for the person who filed the amendment application has to satisfy the court that the valuation of Court fee has been paid in the year 2004 itself when the suit was filed. The seven issues were framed by the Court below, in respect of which issue No. 2 is in respect of possession and encroachment by the defendant. Both the parties have to adduce their respective evidence in respect of possession. This material is sufficient to reach the conclusion that the application for amendment satisfies the proviso of Order VI Rule 17 Code of Civil Procedure.

The learned Judge has also dealt with the delay aspect also. It has assigned the reason that mere delay and lapse in making application for amendment is not a ground to disallow the application for amendment. The amendment is discretionary matter and further held that court must grant amendment in order to do complete justice between the parties.

The discretionary power as provided under the provisions of CPC has been exercised by the learned Judge properly. In the facts and circumstances of the case and in the light of the case of both the parties, the application for amendment has to considered. The discretion has to be exercised by the trial court and not by the High Court. Under supervisory jurisdiction, what is required to be examined is whether such power has been properly exercised or not. The jurisdiction of the trial court is to examine the matter strictly in accordance with the provisions of Code of Civil Procedure. Under these circumstances, the order of the trial court is sound and proper. The judgment relied upon by the petitioner has been examined and in those judgments it has been held that belated amendment application shall not be accepted. What has been observed by the Supreme Court is that the judicial power has to be exercised in a judicial manner and that exercise of power depends upon each case on hand. In the instant case, the plaintiff has very much satisfied the Court for the purpose of order VI Rule 17 CPC Under these circumstances, I do not find that the Court has committed any error in allowing the application.

The delay in filing the application as it is submitted by the learned counsel for the petitioner is 4 years. When there are pleadings necessary to the prayer now sought to be made, I do not think delay in filing the application can come in the way of allowing such amendment application.

Accordingly, this petition is rejected.