Dismissed

Mrs. Dawn D'Souza v. Bruhat Bangalore Mahanagara Palike

Karnataka HC2 Sept 2022WP/50795/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a writ petition challenging the trial court's order allowing the defendants to amend their written statement. The plaintiff argued the amendment changed the suit's nature, but the court held amendments to written statements are more liberally construed than plaints. The amendment regarding a neighboring property was allowed as it did not cause prejudice.

What did the court decide?

The writ petition was dismissed and the trial court's order allowing the amendment of the written statement was confirmed.

Mrs. Dawn D'Souza Vs Bruhat Bangalore… — Contract and Commercial Disputes | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE Mrs. JUSTICE K.S. HEMALEKHA

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WRIT PETITION No.50795/2018 (GM-CPC)

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BETWEEN:

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MRS. DAWN D’SOUZA SINCE DEAD BY LR’s.

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MRS. PRUDENCE CHITTIAPPA, W/O. M.N. CHITTIAPPA, AGED ABOUT 64 YEARS, NO.72, CUNNINGHAM ROAD, BENGALURU – 560 052.

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MR. RAOUL CHITTIAPPA S/O. M.N. CHITTIAPPA, AGED ABOUT 38 YEARS, NO.72, CUNNINGHAM ROAD, BENGALURU – 560 052.

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MR. NIKHIL CHITTIAPPA S/O. M.N. CHITTIAPPA, AGED ABOUT 34 YEARS, NO.72, CUNNINGHAM ROAD, BENGALURU – 560 052. ... PETITIONERS

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(BY MR. MANMOHAN P.N., ADVOCATE)

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AND:

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BRUHAT BANGALORE MAHANAGARA PALIKE, CORPORATION CIRCLE, BENGALURU – 560 001 REPRESENTED BY ITS COMMISSIONER.

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THE REVENUE OFFICER, B.B.M.P., K.R. PURAM WARD, K.R. PURAM, BENGALURU – 560 036. ... RESPONDENTS

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(BY MR. K.N. PUTTEGOWDA, ADVOCATE FOR R-1 AND R-2)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 07.09.2018 PASSED ON IA NO.5 IN O.S.NO.635 OF 2010 PASSED BY THE 3^RD ADDL. CIVIL JUDGE BENGALURU RURAL DISTRICT, BENGALURU VIDE ANNEXURE-E AND CONSEQUENTLY REJECT IA NO.5.

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18/08/2022 AND COMING FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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The question involved in this writ petition is,

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whether the amendment of written statement is

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permissible even if any alternative or an additional

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ground or to substitute for the original plea.

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The present writ petition is preferred by the plaintiff assailing the order dated 07/09/2018 passed on I.A.No.V in O.S.No.635/2010 on the file of the III

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Addl. Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as “the trial Court” for short),

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whereby the application filed by the defendants under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (“CPC”) seeking permission to amend the written statement was allowed by the trial Court.

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The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.

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Suit for permanent injunction in respect of the suit schedule property bearing Sy.No.123, measuring 11 acres 36 guntas (including 21 guntas of kharab land) along with the boundaries contending that defendants are trying to demolish the wall in Sy. No.123.

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The defendants filed a written statement on 28.11.2011 denying the averments made in the plaint

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and contended that the defendants have not passed

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any order for demolition of any structure or building and the allegations made against the defendants are false and also stated that the defendants may be permitted to amend the written statement, if any, in changed circumstances of the case and sought for dismissal of the suit.

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When the matter was set in for crossexamination of PW.1, the defendants filed an application under Order VI Rule 17 of the CPC on 15/02/2018 seeking to amend the written statement and to add the additional contention that recently they came to know that the present suit has been filed to knock away the portion of the valuable property belonging to the Bruhat Bengaluru Mahanagara Palike (“BBMP”) encroaching into the portion of Tank bed area in Sy.No.124 and as such, amendment sought in respect of written statement is just and necessary for effective adjudication of the case on hand.

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7. The plaintiffs filed their objections to I.A.

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No.5 stating that the defendants have falsely contended that the plaintiffs have encroached upon the portion of the tank bed area in Sy.No.124, situated at Pattandur Village, K.R.Puram Hobli, Bengaluru, and there is no justification for the defendants to seek an amendment of the written statement as the suit is in respect of the land bearing Sy.No.123 of the said village more precisely after commencement of trial and the amendment sought is in respect of Sy.No.124 has no bearing in the present suit and sought to dismiss the application.

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On hearing the parties, the trial Court by its order dated 07/09/2018 allowed I.A.No.5 holding that the proposed amendment does not change the nature of the suit and prejudice the plaintiff or take away the admissions in the written statement and the

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proposed amendment is necessary for the purpose of determining the real question in controversy between the parties.

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Being aggrieved by the allowing of I.A.No.5 filed by the defendants under Order VI Rule 17 of the CPC, the plaintiffs have preferred the present writ petition.

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Heard learned counsel for the parties to the lis.

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Learned counsel for the petitioners, Sri Manmohan P.N., would contend that the amendment

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sought by adding paragraph No.5(a) is in respect of Sy.No.124 which is not the subject matter and the amendment sought by the defendants would change the very nature of the suit. Learned counsel would contend that the defendant has not stated in spite of due diligence, the defendant could not have raised the

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amendment before the commencement of trial as per proviso under Order VI Rule 17 of CPC and thus, the allowing of the application by the trial Court is without considering the settled proposition of law as envisaged under Order VI Rule 17 of the CPC. It is also contended by the learned counsel for the petitioners/plaintiffs that in guise of the amendment, the defendants wants to bring the suit under the Land Grabbing Court and that by way of amendment the petitioners would be put to untold hardship. On these grounds, sought to allow the writ petition and reject

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I.A. No.V.

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Per contra, learned counsel for the

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respondents/defendants, Sri K.N.PutteGowda, would justify the order of the trial Court and would contend that the nature of the amendment sought in the written statement cannot have the same footing as that of the amendment of the plaint. It is specifically

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contended by the learned counsel that the

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amendment sought by the defendant does not change the nature of the suit and the defendants in their written statement can take an inconsistent plea and there is no strict formula for the defendants to file their written statement. In light of this, it is contended that the amendment sought by the defendants is just and proper and the allowing of the application by the trial Court is justifiable.

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petitioners/plaintiffs, in support of their contention, has relied upon the judgment of the Apex Court in the case of Vidyabai & others vs. Padmalatha & another [(2009)2 SCC 409] (Vidyabai) and the judgment of this Court in Writ Petition

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No.2151/2022 dated 02/02/2022 in the case of Sri. Jayakumar @ Puttaswamy vs. Smt.

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Jayalakshmi and others (Jayakumar). While learned

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counsel for the respondents has relied upon the judgment of the Apex Court in the case of Sushil Kumar Jain vs. Manoj Kumar & another [Civil Appeal No.3236/2009] and in the case of Raj Kumar Bhatia vs. Subhash Chander Bhatia [Civil

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Appeal No.19400/2017].

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This Court has carefully considered the rival contentions and perused the material on record as well as the impugned order passed by the trial Court. In order to answer the rival contentions of the parties, Order VI Rule 17 of the CPC needs to be considered which reads as under:

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“17. Amendment of Pleadings.— 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:

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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.”

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The bare perusal of this provision, it is translucently clear that order VI Rule 17 of CPC consists of two parts.

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(1) That the Court may at any stage of proceeding allow either party to amend his pleadings.

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(2) That such amendment shall be made for the purpose of determining the real controversies between the parties.

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Therefore, in view of the provisions under Order

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VI Rule 17 of CPC, it cannot be doubted that wide power and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a

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party in such manner and on such terms as it appears

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to the Court just and proper. By way of amendment to CPC, Act 2002 to Order VI Rule 17, which restricts the Court from permitting an amendment to be allowed in pleading either to the parties, if at the time of filing application for amendment, the trial has already commenced. However, Court can allow amendment if it is satisfied that in spite of due diligence, the party could have raised the matter before the

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commencement of trial.

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Keeping this principle in mind, the facts of the present case needs to be considered. The undisputed fact is that the plaintiffs filed suit for permanent injunction in respect of Sy.No.123 measuring 11 acres 36 guntas (including 21 guntas of kharab land) along with the boundaries, the schedule of the property reads as under:

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“All that piece and parcel of land in Sy.No.123 situated at Jodi Pattandur Village, K.R.Puram

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Hobli, Bangalore, measuring 11 acres 36 guntas (including 21 guntas of Karab Land), bounded on the:

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East by : land in Sy.No.128 West by : land in Sy.No.122 and 124 North by : land in Sy.No.13

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South by : land in Sy.No.125 and 126”

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As per the schedule, to the west is the land Sy.Nos.122 and 124.

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In the written statement, the defendants

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had taken a contention that the averments made in the plaint that the defendants are trying to encroach the suit land and in high handedness demolished the compound wall is denied by the defendants and the defendants stated that they have not passed any order of demolition of any structure or building and that the suit of the plaintiff is not maintainable against

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the defendants. It is also contended in the written statement that the defendants may be permitted to

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amend the written statement, if any, in the changed circumstances of the case. Under such circumstances, the defendant filed application I.A.No.5 under Order VI Rule 17 of the CPC seeking to amend the written statement in the following manner:

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“To add the following paragraph as para-5(a) after the existing para-5:

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“Para5(a) The defendants submit subsequent to the filling of the above suit, the plaintiff has been making hectic efforts to encroach into a portion of the tank bed area situated in Sy.No.124. The defendants submit that the filing of the above suit itself has been attempt made by the plaintiff to knock away a portion of the valuable land belonging to the defendants herein in Sy.No.124, situated at Pattandur Agrahara Village, K.R.Pura Hobli, Bangalore South Taluk, which came within the limits of the Bruhat Bangalore Mahanagara Palike, after the entire village/area came within the limits/purview of the Bruhat Bangalore Mahanagara Palike. The entire land in the said Sy.No.124, is being maintained by the Bruhat

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Bangalore Mahanagara Palike and the village map clearly establishes that land Bearing Sy.No.124, absolutely belongs to the Bruhat Bangalore Mahanagara Palike and except the Bruhat Bangalore Mahanagara Palike no other person has / have any manner of claim, right, title or interest in or over the same.”

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In the affidavit filed in support of the

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application filed by the defendants in paragraph No.3 it is stated as under:

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“3. Subsequent thereto, we filed our detailed written statement denying and disputing the false and baseless claim made by the plaintiff. Recently I came to know that by filing the above suit and by obtaining a judgment and decree in his favour, with a view to knock away a portion of the valuable property belonging to the Bruhat Bangalore Mahanagara Palike in Sy.No.124. I submit that in view of the above willful and deliberate act on the part of the plaintiffs to knock away a portion of the land bearing Sy.No.123, it has become just and expedient for me to file the above application praying this Hon’ble Court to

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permit me to carry out amendment to the written statement as prayed in the annexed application. I submit that the amendment sought in the annexed application is very much necessary, just and proper for effective adjudication of the case on hand. The amendment sought for does change the nature of the plea taken in the written statement or create any fresh causes of action. Hence, this application.”

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Perusal of the affidavit would depict that

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recently they came to know about the encroachment in tank bed area in the property belonging to the BBMP in Sy.No.124 and would contend that the amendment sought for by the defendant does not change the nature of the plea taken in the written statement or create any fresh cause of action. It is also contended that the amendment sought is necessary for the effective adjudication of the case on hand. Though the learned counsel for the petitioners would contend that the suit is for permanent

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injunction in respect of Sy.No.123 and not in respect of Sy.No.124 and contend that the amendment sought in the written statement is not necessary for the adjudication of the case. It is relevant to note that the amendment to the written statement cannot be considered on the same principle as the amendment to the plaint. The pleas in the written statement may be an alternative or additional ground or substitute for the original plea. It is equally settled law that the amendment of pleadings could be made at any stage of the proceedings. There are instances where an amendment is even permitted in the second appeal. The essential requisites are the delay in making the application, the reason should be given and considered and there should be no prejudice caused to the other side. The Apex Court, in the case of

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Arundhati Mishra (Smt.) vs. Sri Ram Charita

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Pandey [(1994)2 SCC 29] (Arundhati), has held as under:

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“3. It is settled law as laid down by this Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be founded on the alternative plea it could be granted. If the facts are admitted in the written statement, the relief could be granted to the plaintiff on the basis of the evidence though inconsistent pleas were raised. Amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts. The essential requisites are that the delay in

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making the application; the reason therefor should be given and considered; and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted.”

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(Emphasis supplied)

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The Apex Court, in the cases of Baldev

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Singh & others vs. Manohar Singh & another

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[AIR 2006 SC 2832] ( Baldev Singh ) held as under:

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“13. In view of this decision, it can be said that the plea of limitation can be allowed to be raised as an additional defence by the appellants. Accordingly, we do not find any reason as to why amendment of the written statement introducing an additional plea of limitation could not be allowed. The next question is that if such amendment is allowed, certain admissions made would be allowed to be taken away which are not permissible in

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law. We have already examined the statements made in the written statement as well as the amendment sought for in the application for amendment of the written statement. After going through the written statement and the application for amendment of the written statement in depth, we do not find any such admission of the appellants which was sought to be withdrawn by way of amending the written statement.

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As noted herein earlier, the case set up by the plaintiff/respondent No.1 was that his parents had no money to purchase the suit property and it was the plaintiff/respondent No.1 who paid the consideration money. In the written statement, this fact was denied and further it was asserted in the written statement that the suit property was in fact purchased by their parents and they had sufficient income of their own. In the application for amendment of written statement it was stated that the plaintiff/respondent No.1 did not have any income to pay the consideration money of the suit property and in fact the parents of the plaintiff/respondent No.1 had sufficient income to pay the sale price. It was only pointed out in

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the application for amendment that after the death of their parents, the suit property was mutated in the joint names of the plaintiff/respondent No.1 and the defendants in equal shares. Therefore, the question whether certain admissions made in the written statement were sought to be withdrawn is concerned, we find, as noted herein earlier, there was no admission in the written statement from which it could be said that by filing an application for amendment of the written statement, the appellants had sought to withdraw such admission. It is true in the original written statement, a statement has been made that it is the defendant No.1/appellant No.1 is the owner and in continuous possession of the suit property but in our view, the powers of the Court are wide enough to permit amendment of the written statement by incorporating an alternative plea of ownership in the application for amendment of the written statement. That apart, in our view, the facts stated in the application for amendment were in fact an elaboration of the defence case. Accordingly, we are of the view that the High Court as well as the Trial Court

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had erred in rejecting the application for amendment of the written statement on the ground that in the event such amendment was allowed, it would take away some admissions made by the defendants/appellants in their written statement. That apart, in the case of Estralla Rubber vs. Dass Estate (P) Ltd. [(2001) 8 SCC 97], this Court held that even there was some admissions in the evidence as well as in the written statement, it was still open to the parties to explain the same by way of filing an application for amendment of the written statement. That apart, mere delay of three years in filing the application for amendment of the written statement could not be a ground for rejection of the same when no serious prejudice is shown to have been caused to the plaintiff/respondent No.1 so as to take away any accrued right.

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Let us now take up the last ground on which the application for amendment of the written statement was rejected by the High Court as well as the Trial Court. The rejection was made on the ground that inconsistent plea cannot be allowed to be taken. We are unable to appreciate the ground of rejection made by

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the High Court as well as the Trial Court. After going through the pleadings and also the statements made in the application for amendment of the written statement, we fail to understand how inconsistent plea could be said to have been taken by the appellants in their application for amendment of the written statement, excepting the plea taken by the appellants in the application for amendment of written statement regarding the joint ownership of the suit property. Accordingly, on facts, we are not satisfied that the application for amendment of the written statement could be rejected also on this ground. That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not

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raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.

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This being the position, we are therefore of the view that inconsistent pleas can be raised by defendants in the written statement although the same may not be permissible in the case of plaint. In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co. [(1976) 4 SCC 320], this principle has been enunciated by this Court in which it has been clearly laid down that inconsistent or alternative pleas can be made in the written statement. Accordingly, the High Court and the Trial Court had gone wrong in holding that defendants/appellants are not allowed to take inconsistent pleas in their defence.

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Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of

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the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.”

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(Emphasis supplied)

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In the case of Usha Balashaheb Swami

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& others vs. Kiran Appaso Swami others [AIR

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2007 SC 1663] (Usha Balashaheb) held as under:

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“18. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.

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Such being the settled law, we must hold that in the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in

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the former than in the latter case [see B.K.Narayana Pillai v. Parameswaran Pillai (2000 (1) SCC 712) and Baldev Singh and Ors. v. Manohar Singh (2006 (6) SCC 498)]. Even the decision relied on by the plaintiff in Modi Spinning (supra) clearly recognises that inconsistent pleas can be taken in the pleadings. In this context, we may also refer to the decision of this Court in Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3) SCC 179]. In that case, the defendant had initially taken up the stand that he was a joint tenant along with others. Subsequently, he submitted that he was a licensee for monetary consideration who was deemed to be a tenant as per the provisions of Section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court held that the defendant could have validly taken such an inconsistent defence. While allowing the amendment of the written statement, this Court observed in Basavan Jaggu Dhobi’s case (supra) as follows:-

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“As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to

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the defendant to amend his statement under Order 6 Rule 17 CPC by taking a contrary stand than was stated originally in the written statement. This is opposed to the settled law open to a defendant to take even contrary stands or contradictory stands, the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action.”

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(Emphasis supplied)

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Though the learned counsel for the

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petitioners substantiated his contentions stating that the amendment sought by the defendants is without any reason assigned in the affidavit and the precondition, the Court should be satisfied that despite due diligence, the party could not introduce amendment before the commencement of trial and placed reliance on Vidyabai’s case and Jayakumar’s case stated supra. This Court has no quarrel with this proposition of law. It is well settled that the person

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seeking amendment has to show due diligence that the said amendment could not be sought earlier before the commencement of trial. In the present matter, it is specifically stated by the defendants in the affidavit accompanying the application that recently they came to know that the plaintiff is trying to encroach on the tank bed area in Sy. No.124, wherein Sy.No.124 is to the west side of the suit property. In the circumstances, the contention raised by learned counsel for the petitioner that the amendment sought by the defendants is at a belated stage and the defendants have not made out a case to show due diligence on the part of the defendants and the trial Court was not justified in allowing the application and the same is not acceptable and judgment relied upon by the learned counsel for the petitioners is not applicable in the peculiar facts and circumstances of the case. Mere allowing of

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amendment application itself would not amount to granting the relief sought in the proposed amendment. On careful perusal of the application for amendment of the written statement, this Court is of the considered view that the defendant is seeking to put additional facts by inserting paragraph No.5(a) which also may be a new ground for defence, however, in no way could prejudice the plaintiff.

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The Apex Court in the case of Arundhati, Baladev Singh and Usha Balashaheb Swami held that it is a settled proposition of law that an amendment of a written statement, the Courts should be more liberal than that of the plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering defence or taking an inconsistent plea in the written statement can also be allowed and keeping these principles in mind and in

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light of the principle settled by the Apex Court in

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Panchdeo Narain Srivastava vs. Km. Jyoti Sahay

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And Anr. [AIR 1983 SC 462], wherein it is held that

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the admission made by a party may be withdrawn or may be explained and the amendment is to be taken a liberal view, the order allowing I.A.No.VIII, does not call for any interference Under such circumstances, this Court is of the opinion that the allowing of amendment by the trial Court is justifiable.

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In the result, this Court pass the following:

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ORDER

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(i) Writ petition is dismissed.

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(ii) The order dated 07/09/2018 on I.A.No.5 in O.S.No.635/2010 on the file of the III Addl. Civil Judge (Jr. Division), Bengaluru Rural District, Bengaluru, is hereby confirmed.

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No order as to costs.

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SD/-

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JUDGE

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Mrs. Dawn D'Souza v. Bruhat Bangalore Mahanagara Palike

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Mrs. Dawn D'Souza v. Bruhat Bangalore Mahanagara Palike

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