Dismissed

Sannamma W/O Late Ramegowda v. Smt Gowramma

Karnataka HC8 Sept 2021WP/51421/2015

Case brief

AI extract

What is this about?

This High Court of Karnataka dismissed a writ petition challenging a Trial Court order that rejected a belated amendment application. The amendment sought to change a suit for injunction into one for declaration of title. The Court held the amendment altered the suit's nature and was filed impermissibly late.

What did the court decide?

Writ petition dismissed; order dated 05.10.2015 dismissing amendment application upheld.

Sannamma W/O Late Ramegowda Vs Smt Gowramma — Property and Title | Karnataka HC (2021)

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WP No.51421/2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ

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WRIT PETITION NO.51421 OF 2015 (GM-CPC)

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BETWEEN:

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SANNAMMA W/O LATE RAMEGOWDA AGED ABOUT 45 YEARS

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R RAMYA D/O LATE RAMEGOWDA AGED ABOUT 24 YEARS

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R RAGHU S/O LATE RAMEGOWDA AGED ABOUT 22 YEARS

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ALL ARE RESIDING AT HUNASAGAHALLI BANNUR HOBLI T NARASIPURA TALUK MSYORE DISTRICT.

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... PETITIONERS

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(BY SRI. G.B. MANJUNATHA, ADVOCATE)

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AND:

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SMT GOWRAMMA W/O LATE HUCHEGOWDA AGED ABOUT 70 YEARS

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SRI MALLEGOWDA S/O LATE HUCHEGOWDA AGED ABOUT 50 YEARS

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SRI DEVARAJA S/O LATE HUCHEGOWDA AGED ABOUT 47 YEARS

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SRI DODDAMALLEGOWDA S/O LATE NATHEGOWDA AGED ABOUT 55 YEARS

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SRI S J BHASKAR S/O S C JAYARAME GOWDA AGED ABOUT 37 YEARS

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ALL ARE RESIDING AT SEEHALLI VILLAGE BANNUR HOBLI T NARASIPURA TALUK MYSORE DISTRICT-571 124.

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... RESPONDENTS

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(BY SRI. LOKESH D.K, ADVOCATE FOR SRI P NATARAJU, ADV. FOR R5 R1, 3 & 4 –SERVED- UNREPRESENTED V/O DTD.11.07.16, NOTICE TO R2 H/S)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSITITUTION OF INDIA PRAYING QUASH THE ORDER DATD. 05.10.2015 PASSED ON I.A.NO.XVI IN O.S.NO.113/2007 ON THE FILE OF THE CIVIL JUDGE (JN.DN) AND JMFC, T.NARASIPURA VIDE ANNEXURE-E BY SETTING ASIDE THE SAME AND ALLOW THE IA NO.XVI FILED BY THE PETITIONERS IN THE ABOVE SUIT AS THE SAME IS ILLEGAL AND WRONG AND ETC.

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THIS WRIT PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court seeking for writ of certiorari to quash the order dated 05.10.2015 passed on I.A.No.XVI by Civil Judge & JMFC, T Narasipura in O.S.no.113/2007.

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O.S.No.113/2007 had been filed seeking for injunction restraining the defendants initially against defendant Nos.1 to 4 therein, from interfering with the peaceful possession of the plaintiffs. I.A.No.XVI had been filed on 29.08.2015 seeking for amendment of the plaint by insertion of several paragraphs by substitution of prayer of injunction for prayer of declaration of plaintiffs as absolute owners of the property and certain other reliefs, the same came to be opposed by defendant No.5 who had been impleaded as defendant vide order dated 28.02.2008 since defendant No.5 is stated to be the purchaser of suit schedule property.

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Upon hearing the parties, the Trial Court dismissed the application under Order VI Rule 17 of CPC holding that it was a post trial amendment filed when the matter was posted for reply arguments. The plaintiffs had not made out any grounds for

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allowing the application nor established any due diligence etc.,. It is aggrieved by the same, the plaintiffs are before this Court.

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Sri G.B. Manjunatha, learned counsel for petitioners would submit that:

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4.1. The amendment which has been sought

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for does not change nature or character

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of the suit, the amendment only amplifies, which has already been stated in the plaint.

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4.2 There is no delay as such in filing the amendment application, even if there is a delay since the proceeding arises out of material already on record, the Court ought to have allowed the amendment application, even when the matter is posted for reply arguments.

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In this regard, he relied upon the decision of Hon’ble Apex Court in the case of Surender Kumar

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Sharma v. Makhan Singh reported in (2009) 10 SCC 626 more particularly paragraph Nos.6 and 7 thereof which are reproduced hereunder for easy reference:

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“6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise, ( See B.K. Narayana Pilla v. Parameswaran Pillai ) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.

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So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed”.

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He also relied upon the decision of Hon’ble Apex

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Court in the case of State of Bihar and others vs.

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Modern Tent House and Another reported in (2017) 8 SCC 567 more particularly paragraphs Nos.7 and 8 thereof which are reproduced

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hereunder for easy reference:

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“7. It is not in dispute that the suit filed by the respondents against the appellants out of which this appeal arises is still pending. It is also not in dispute that the evidence of the parties is not yet over. In other words, the trial in the suit is going on.

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We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defense already taken; thirdly, it does not introduce any new defense compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defense already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defense or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the Courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises”.

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By relying upon the aforesaid decisions, he submits that amendment application ought to have been allowed, allowing of the said application would not cause any prejudice to the defendants.

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Per contra , Sri Lokesh D.K., learned counsel for respondent No.5 would submit that amendment application is a belated application in as much as the same was filed on 29.08.2015, after arguments of the plaintiffs and defendants has been advanced and was posted for reply arguments of plaintiffs and submits that the application was filed only to overcome the lacuna pointed out during the course of arguments and as such, the Trial Court has rightly applied the proviso to Order VI Rule 17 of CPC and rejected the application. He further submits that even the amendment application is barred by law of limitation and changes the nature, character and scope of the suit in as much as the suit was filed for bare injunction, now it has been

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sought to be changed the one to for declaration of title of plaintiffs. Hence, there is no requirement of this Court to interfere with the matter.

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Heard Sri G.B. Manjunath, learned counsel for the petitioners and Sri Lokesh D.K, learned counsel for respondent No.5.

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A perusal of the plaint indicates that the suit was filed for bare injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs. The suit has been filed in the year 2007, while the suit was pending, the plaintiffs came to know that defendant Nos.1 to 4 have sold the suit schedule property to defendant No.5.

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The plaintiffs have filed application for impleading defendant No.5 on 04.12.2007 contending that defendant No.5 is proper and necessary party to the proceedings on account of sale made in favour of defendant No.5. Defendant No.5 had filed his

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written statement contending that he is a bonafide purchaser for value of suit schedule property.

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Thereafter, issues were framed, evidence was lead and the matter was posted for arguments. Both the plaintiffs and defendants addressed their arguments and the matter was posted for reply arguments of the plaintiffs.

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At this stage, on 29.08.2015, amendment application was filed.

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What is to be noted is that as per order dated 04.12.2007, the plaintiffs have filed impleading application to implead defendant No.5 on the ground that the sale made in favour of defendant No.5, thus there was a cloud on title of the plaintiffs which came to the knowledge of the plaintiffs as on the date on which the impleading application was filed, if not on the date of sale deed, the impleading application was filed on 29.08.2015, i.e., after 8

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years of filing of the impleading application which is clearly barred by law of limitation.

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The suit initially has instituted for bare injunction,

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now by way of amendment is sought to be converted to a suit for declaration that the plaintiffs are the owners of the property. When such a relief is sought for by deletion of earlier relief for injunction, it cannot be contended that nature, scope and character of the suit does not change. The nature and character of the suit from that of bare injunction is sought to be converted into the declaratory suit which is not permissible by way of amendment post trial.

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The decision relied upon by the learned counsel for the petitioners in Surendar Kumar Sharma’s case (supra) is one which is rendered in circumstances where the Apex Court came to a conclusion that there will not be a change in the nature and character of the suit. In the present case, I have

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already come to a conclusion that there would change in nature character of the suit. As such, the decision in Surendar Kumar Sharma ’s case (supra) would not apply.

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As regards the decision in Modern Tent House case (supra), the Apex Court came to a conclusion that the amendment would not change nature and character of the suit but only an amplification of the defence already taken by the defendants that being an application which had been filed by the defendants for amendment. Even the reasons given by the Apex Court in Modern Tent House

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case (supra) could not come to rescue of the plaintiffs, who are petitioners herein.

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The next issue is that the application for amendment was filed at the stage of reply arguments i.e., it is a post trial application for amendment, which would come within the mischief of proviso to Order VI Rule 17 of CPC. There is no

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averment made in the affidavit in support of application for amendment as to why the said amendment application has been filed belatedly and as to why the same could not have been filed earlier more so, even on 04.12.2007, an application for impleading defendant No.5 on account of purchase by defendant No.5, which had implication on title of the plaintiffs had been made. Thus there being no due diligence on part of the plaintiffs in filing amendment application, it does not fulfill the rigor of proviso to Order VI Rule 17 of CPC. In view thereof, I do not find any reason to interfere with the order passed by the Trial Court.

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The writ petition stands dismissed.

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Sd/JUDGE

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nms

Sannamma W/O Late Ramegowda v. Smt Gowramma

Case brief

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Sannamma W/O Late Ramegowda v. Smt Gowramma

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