V. Chinnappa and Others vs T. Shantharaju and Others

Budihal R.B., J.—1. Heard the argument of the learned Counsel appearing for the Writ Petitioners-defendants and also the argument of the learned Counsel appearing for the respondent No. 1-plaintiff. The Writ Petitioners challenged the order dated 04.01.2016 passed on IA No. 12 by the 11th Additional City Civil and Sessions Judge (CCH-8), Bengaluru in O.S. No. 8627/2006 produced as per Annexure-N and the Writ Petitioners sought to allow the Writ Petition and to dismiss the application IA No. 12.

The respondent No. 1-plaintiff filed the suit before the trial Court for specific enforcement of the agreement of sale entered into between the Writ Petitioners herein and also the respondent No. 1-plaintiff. In the said suit, the Writ Petitioners appeared and filed their Written Statement taking various contentions in the Written Statement. During the pendency of the suit, as the property has been acquired by the BDA, subsequent agreement as per Annexure-A was also entered into between the parties, which is not in dispute and the respondent No. 1-plaintiff filed an application as per Annexure-L seeking amendment of the plaint in view of the subsequent developments taken place during the pendency of the suit. But ultimately, the trial Court after considering the merits of the application, allowed the said application. Being aggrieved by the same, Writ Petitioners-defendants are before this Court.

The learned Counsel appearing for the Writ Petitioners-defendants during the course of his argument made the submission that earlier there was an agreement of sale between the Writ Petitioners-defendants and respondent No. 1-plaintiff as per Annexure-A. The learned Counsel made the submission that this was on 17.08.1998. But subsequently, as the BDA acquired the said property i.e., Sy. No. 33/3 of Gollahalli Village, another agreement was entered into between the parties on 04.04.2002. The learned Counsel made the submission that terms of the agreement between the parties, even according to the subsequent agreement, are not in dispute. BDA allotted sites bearing Nos. 420 and 1071 of Anjanapura Layout, 11th Block, to the defendants under the incentive scheme to the owners of the property in lieu of the acquired land. The learned Counsel made the submission that subsequently BDA taken back a site bearing No. 1071. It is also his submission that in the year 2015, BDA again allotted a site No. 319 in favour of the defendants. It is the contention of the Writ Petitioners that the plaintiff filed the amendment application to amend the pleadings to include even the allotment of site subsequently by the BDA i.e., Site No. 319 and seeking specific enforcement against the said site No. 319. He made the submission that the Writ Petitioners kept mum and not taken any steps but it is only in the year 2015, they have filed such amendment application. Therefore, it is his main contention that property allotted by the BDA in the year 2015 i.e., Site No. 319 during the pendency of the suit against which the respondent No. 1-plaintiff cannot seek specific enforcement in respect of the said property, which agreement was of the year 2002. Hence, he contended that these aspects were not at all contended before the trial Court and even there is a delay in filing such application. He made the submission that the Plaintiffs evidence was closed and evidence on the other side was to commence and at that time, this application came to be filed by the plaintiff. Hence, the counsel made the submission that once the evidence is commenced in the suit as per the amended CPC under Order 6 Rule 17 unless and until, it is shown by the plaintiff that inspite of his due diligence, he was not able to file such application seeking the amendment of the pleadings as well as relief in the said suit. Hence, the application cannot be allowed. Hence, he made the submission that only because the BDA allotted the site in the year 2015, the plaintiff cannot seek enforcement against the said site and because of delay and latches, he is not entitled to get such relief in the said suit and it introduces new cause of action and it is not the cause of action which was made out in the original pleading by the respondent - plaintiff. On these grounds, learned Counsel made the submission that the trial Court is not correct in allowing the amendment application at that stage and application ought to have been rejected by the trial Court. Hence, he submitted to allow the Writ Petition and to set aside the order passed by the trial Court on IA No. 12. In support of his contention, learned Counsel appearing for the Writ Petitioners -defendants relied upon the following decisions:

, AIR 1999 SC 3033 - Head Note B which reads as under:

"(B) Civil P.C. (5 OF 1908), O.6, R.17, S.151 - Amendment of plaint - Application for - Before applying provisions under O.6, R.17 there must be institution of suit - Any application filed under provisions of different statutes cannot be treated as a suit or plaint unless otherwise provided in the said Act - Amendment in facts would introduce totally new cause of action and change the nature of suit - It would also introduce a totally different case which is inconsistent with prayer made in application for referring dispute to arbitrator - Likely to cause prejudice to appellant as it was sought 11 years after cause of action arose -Amendment cannot be allowed - Section 151, C.P.C. could not be applied in such cases."

, AIR 1978 MADRAS 285(1) Full Bench decision Head Note ''C''

"(C) Civil P.C. (5 OF 1908), O.6,. R.17 -Amendment by introducing new cause of action - Permissibility.

Per Division Bench: When the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, courts cannot allow such application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances. This is more so when the application for amendment is an after-thought and, therefore, lacks bona fides."

Per contra, the learned Counsel appearing for the respondent No. 1-plaintiff during the course of his argument made the submission that so far as entering into the two agreements of sale, one in the year 1998 and subsequently in the year 2002, are not in dispute and it is admitted by both the sides. Even the terms and conditions in the said agreements of sale are also not in dispute. Counsel made the submission that when the earlier site was allotted in favour of the Writ Petitioners - defendants, they have not executed the sale deed in respect of said site but subsequently said site was taken back by the BDA. It is also his contention that another site No. 420, which was allotted by the BDA, was sold by the Writ Petitioners -defendants. He made the submission that earlier the plaintiff filed three applications I.A. Nos. 9, 10 and 11 and application I.A. No. 8 was filed by the Writ Petitioners seeking rejection of the plaint under Order 7 Rule 11(d) of CPC. Learned Counsel made the submission that the said applications were allowed by the trial Court and the application filed seeking rejection of the plaint by the Writ Petitioners - defendants was rejected holding that the defendants can canvas all those points in the suit itself. Learned Counsel, however, made the submission that common order passed by the trial Court on IA. Nos. 9 to 11 were challenged by the Writ Petitioners by preferring Writ Petition before this Court. He made the submission that the matter was heard by this Court and ultimately, this Court dismissed the Writ Petition preferred by the Writ Petitioners - defendants confirming the order passed by the trial Court on the three applications. It is also his submission that so far as rejection of the plaint, application IA No. 8, which was filed by the Writ Petitioners - defendants, which was rejected by the trial Court was also challenged by the Writ Petitioners before this Court in CRP No. 408/2015 and said CRP was also rejected by this Court confirming the order passed by the trial Court dismissing the said application. Hence, the counsel submitted that when the BDA allotted a site No. 319 to the defendants and this was during the pendency of the suit, subsequent development taken place. Hence, he submitted that to bring these facts to the notice of the Court for resolving issue between the parties was necessary. Because of this reason, the respondent No. 1-plaintiff filed such application. Learned Counsel submitted that it will not introduce new facts or new cause of action in the said suit. Looking to the terms of the agreement, which was entered into between the parties on 4.4.2002 already there are averments and there is an obligation on the part of the Writ Petitioners-defendants to execute the sale deed in respect of one site. Hence, he submitted that when such averments already there in the agreement only on the ground that application was filed in the year 2015, the defendants cannot oppose the said application. Hence, learned Counsel submitted that all these aspects properly appreciated and considered by the trial Court and ultimately, the trial Court allowed the application. There is no illegality in allowing such application nor there is any perverse and capricious view taken by the trial Court and he made the submission that the decisions relied upon by the Writ Petitioners are not at all made applicable to the facts and circumstances of the case on hand. Hence, he made the submission that there is no merit in the Writ Petition. The same is to be rejected.

I have perused the grounds urged in the Writ Petition, impugned order passed by the trial Court on the application IA. No. 12 filed under Order 6 Rule 17 of CPC seeking amendment of the pleadings. So also, I have perused the agreement entered into in the year 1998 and subsequent agreement entered into dated 4.4.2002 between the parties. Looking to the terms and conditions in the agreement i.e., 4.4.2002, there is an obligation on the part of the Writ Petitioners that they have to execute the sale deed in respect of one site in favour of the plaintiff. In para 3 of the subsequent agreement dated 4.4.2002, it is mentioned as under:-

"3. The parties to the agreement agree that the First party being entitled to 2 sites measuring 40'' x 60''/30'' x 40'', the Second party would be entitled for one site. The second party shall convey the same in favour of the first party. Expenses in that regard shall be borne equally by the parties to this agreement."

When the Writ Petitioners approached this Court in W.P. No. 32962-64/2015 connected with CRP No. 408/2015, this Court at Para 10 and 11 referring to the said Clause (3) in the said subsequent agreement made it clear by interpreting the said clause "Further clause 3 in the said agreement provides that defendant shall execute a Sale Deed in respect of one of the sites to be allotted by the BDA in favour of the plaintiff". So this aspect has been clarified with regard to Clause (3) in the subsequent agreement that there is an obligation on the part of the Writ Petitioners to execute the sale deed in respect of the respondent No. 1-plaintiff in respect of one site. It is also not in dispute that subsequently, BDA allotted a site bearing No. 319 in favour of the defendants who are Writ Petitioners herein. The plaintiff filed an application seeking amendment of the pleadings to include all these subsequent developments i.e., BDA taking back the site No. 1071 and allotting another site No. 319. By filing the said application, the plaintiff brought all these facts in the amendment application and this application was opposed by the Writ Petitioners - defendants by filing their objections statement. It is not in dispute that the agreement dated 4.4.2002 as per the terms agreed between the parties, the petitioners have to execute the sale deed in favour of the plaintiff. Regarding these terms, defendants have contended about the terms and conditions entered into between the Writ Petitioners as well as the plaintiff, in the Written Statement. Therefore, originally when there is such a clause entered into between the parties so also there is a pleading in the plaint about the said obligation between the parties to the agreement, it cannot be said as contended by the learned Counsel appearing for the Writ Petitioners herein, that the proposed amendment introduces the new cause of action and the new factual story, which was not pleaded in the original suit. Therefore, this aspect has been properly appreciated by the trial Court. It is also not in dispute that these are the subsequent developments taken place during the pendency of the suit. It is no doubt true that the evidence on the side of the plaintiff is closed and defendant''s evidence has yet to commence in the said suit but as the fact remains that the amendment application was filed to bring to the notice of the Court the developments taken place subsequently to resolve the dispute in the said suit itself. Therefore, the trial Court opined that when already there is a pleading in the plaint as well as averments and contentions in the agreement, it will not introduce new cause of action and allowing the amendment application so also felt necessary by the trial Court to resolve the dispute between the parties to the suit. I have also perused the decisions and principles enunciated in the said decisions relied upon by the learned Counsel appearing for the Writ Petitioners - defendants. It is no doubt true in the said decisions it is held by their Lordships that amendment in facts which introduces new cause of action and change the nature of the suit, such type of amendment application cannot be allowed at the subsequent stage. But here in the case on hand, as I have already observed above, there was a pleading in the plaint itself about the terms and conditions of the agreement of sale dated 4.4.2002 so also in the plaint, Written Statement about the terms and conditions of the said documents. So originally there is a pleading touching the point in issue about the amendment application filed. In view of these facts and circumstances of the case on hand, they are not exactly one and the same to the facts and circumstances of the case in the reported judgments relied upon by the Writ Petitioners. The trial Court extensively considered the contentions canvassed before the trial Court while hearing the amendment application and recorded a detailed finding on the said application and ultimately allowed the said application. No illegality has been committed by the trial Court in allowing the amendment application and it is rightly observed by the trial Court that the opportunity is there for the Writ Petitioners -defendants to file their additional Written Statement so far as the amended portion of the plaint is concerned and they were also having opportunity to cross examine the plaintiff on the subsequent pleading presented by way of amendment. Hence, no injury will be caused to the Writ Petitioners - defendants if the application is allowed. There are no grounds for this Court to interfere into the order passed by the trial Court. Accordingly, Writ Petition is hereby dismissed confirming the order passed by the trial Court.

The observations made by this Court is only for the purpose of disposal of this Writ Petition and the trial Court should not be influenced by the said observations while deciding the suit on merits.