Allowed

Mr Mohammed Siddique v. Smt P K Nafeesa

Karnataka HC9 Jun 2021WP/6212/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition under Article 226 quashing an order dismissing an amendment application under Order 6 Rule 17 CPC. The court held that despite the trial commencing, the petitioner exercised due diligence and the rejection based on inconsistent stands was untenable.

What did the court decide?

The impugned order dated 26.02.2021 dismissing I.A. No. 2 was set aside; I.A. No. 2 was allowed; trial to be expedited within six months.

Mr Mohammed Siddique Vs Smt P K Nafeesa — Partition | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 9^TH DAY OF JUNE, 2021

¶4

BEFORE

¶5

THE HON'BLE MR.JUSTICE P.S. DINESH KUMAR WRIT PETITION No.6212 OF 2021 (GM-CPC)

¶6

BETWEEN :

¶7

MR. MOHAMMED SIDDIQUE S/O MOHAMMED KUNHI AGED ABOUT 62 YEARS D.NO.8-14-1176 KARBALA ROAD KUDROLI, MANGALURU-575 003 …PETITIONER

¶8

(BY SHRI. B.S. SACHIN, ADVOCATE)

¶9

AND :

¶10

SMT. P.K. NAFEESA W/O LATE M.K.ABDULLA AGED ABOUT 75 YEARS MUNEERA MANZIL KUDROLI MANGALURU-575 003 REPRESENTD BY HER G.P.A HOLDER MR. IQWAN AHMED ABDULLA S/O LATE M.K. ABDULLA AGED ABOUT 42 YEARS R/O MUNEERA MANZIL MANGALURU-575 003 ... RESPONDENT

¶11

(BY SMT. HALEEMA AMMEN. ADVOCATE)

¶12

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DTD. 26.02.2021 PASSED IN O.S. NO.1089 OF 2017 ON THE FILE OF 1^ST ADDITIONAL CIVIL JUDGE, MANGALORE D.DK AS PER ANNX-A AND CONSEQUENTLY ALLOW I.A NO.2 AS PRAYED FOR.

¶13

¶14

THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:

¶15

ORDER

¶16

Respondent has filed the suit for possession of the suit property and mesne profits. The suit was initially decreed on 10.09.2018 ex parte. The respondent initiated execution proceedings. Petitioner filed a Misc. Petition to set aside ex parte decree and also filed writ petition No.52725/2019 before this Court to stay the proceedings on the execution side. Immediately, Misc. petition was allowed and suit was restored on the file of the trial Court on 08.01.2021. Petitioner filed his written statement. Thereafter P.W.1 was examined. On 25.01.2021, respondent got her sale deed marked as Ex.P5. On 18.02.2021, petitioner has filed an application under Order 6 Rule 17 CPC to amend the written statement inter alia to take a defence that he was in the adverse possession of the suit schedule property. Learned trial Judge has dismissed the said application. Hence, this petition.

¶17

¶18

At the outset, Smt.Haleema Ameen, learned advocate for respondent raised a preliminary objection that in view of proviso to Order 6 Rule 17 of CPC, an amendment could not have been allowed once a trial has begun.

¶19

In reply, Shri. Sachin, learned advocate for the petitioner submitted that proviso does not take away the power of the Court completely in allowing an application seeking amendment. According to him no amendment shall be allowed unless the court comes to a conclusion that the applicant was not to file the application despite due diligence.

¶20

In reply, Smt. Haleema for the respondent submitted that sale deed was annexed to the objections filed in the Misc. Petition in November 2020. Therefore, petitioner had knowledge of the sale deed.

¶21

¶22

I have carefully considered rival contentions and perused the records

¶23

Undisputed facts of the case are, the written statement has been filed on 08.01.2021 and Ex.P5-sale deed has been marked on 25.01.2021 and application for amendment has been filed on 18.02.2021. Learned trial Judge has dismissed the application by recording that the defendant has made contradictory statement in the instant application.

¶24

Proviso to Order VI Rule 17 of CPC reads as under: "1. the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

¶25

2. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

¶26

¶27

Shri. Sachin is right in his submission that there is no absolute embargo to consider an application for amendment after the trial has commenced. The argument advanced on behalf of the respondent is that the document in question was within the knowledge of the petitioner as back as in November 2020. But it is relevant to note that the sale deed is said to have been annexed to the objections to the Misc. petition. To a pointed question by the Court, learned advocate for respondent fairly submitted that the document has surfaced in the suit only on 25.01.2021 and it was produced as Ex.P5. Learned advocate for respondent also fairly conceded that there is no reference to the said document in the plaint as the suit is one for possession. Be that as it may, the fact remains that the document in question has come into existence on 25.01.2021 and application has been filed on 18.02.2021. It is settled that the

¶28

defendant can take inconsistent stands. Therefore, the reason recorded by the learned trial Judge that defendant has

¶29

¶30

taken an inconsistent stand to reject the application is untenable.

¶31

Shri. Sachin has also placed reliance on paragraph No.7 of the judgment of the Hon'ble Supreme Court in Surendra Kumar Sharma Vs. Makhan Singh (Civil Appeal No.6400/2009 arising out of SLP(C) 30468/2008) and contended that under Order 6 Rule 17 of CPC, the Court has wide powers and unfettered discretion to allow amendment of the pleadings.

¶32

Learned advocate for respondent submitted that the respondent-landlord is an old lady and petitioner is dragging the proceedings. She further submitted that petitioner is not entitled for consideration of application as she has not shown due diligence. Therefore, proviso to the Order 6 Rue 17 applies in full force.

¶33

In the facts and circumstances of this case, in the opinion of this Court, reasons recoded by the learned trial

¶34

¶35

Judge that defendant has made inconsistent statement is untenable. The dates recorded hereinabove show that petitioner has exercised due diligence. Hence the following:

¶36

ORDER

¶37

a) Petition is allowed ;

¶38

b) The order dated 26.02.2021 passed on I.A.No.2 in

¶39

O.S.No.1089/2017 on the file of I Additional Civil Judge, Mangalore, D.K., is set aside and I.A.No.2 is allowed;

¶40

c) Keeping in view the age of the plaintiff, the trial Court shall expedite the trial and shall dispose of the case within six months after the evidence is complete;

¶41

d) Petitioner shall deposit the arrears of rent if any,

forthwith.

No costs.

Sd/JUDGE

Mr Mohammed Siddique v. Smt P K Nafeesa

Case brief

What is this about?

What did the court decide?

Mr Mohammed Siddique v. Smt P K Nafeesa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Parvathamma Vs Sri Dr Mohamed Altaf Hussain

K. N. Shivakumar Vs Rajappa S/O Late Munithayappa

Sri Kondaiah Vs Smt Thippamma

Manjamma Vs Thippaiah

Sri B Nagesh Vs Sri Yogendra M S

Mr K E Mathew Vs Mr C T Joseph