Shri. Srinivasa Vs Dr. Gange Gowda

S/O PETE MUNIYAPPA AGED ABOUT 60 YEARS PREVIOUSLY RESIDING AT AGARA, BEGUR HOBLI BENGALURU NORTH - 560 102 NOW RESIDING AT NO.183 6TH CROSS, 30TH MAIN HSR SECTOR I BENGALURU - 560 102.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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3 . SHRI BALAKRISHNA

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S/O PETE MUNIYAPPA AGED ABOUT 52 YEARS PREVIOUSLY RESIDING AT AGARA BEGUR HOBLI, BENGALURU NORTH - 560 102 NOW RESIDING AT NO.571 11TH A CROSS, 31ST MAIN SECTOR- I, HSR LAYOUT BENGALURU - 560 102.

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…PETITIONERS

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(BY SMT. GEETHA DEVI M.P, ADV.)

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AND:

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1 . DR. GANGE GOWDA S/O K.G. GOWDA AGED ABOUT 70 YEARS.

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2 . SMT. NALINI W/O DR. GANGE GOWDA AGED ABOUT 63 YEARS.

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BOTH ARE RESIDING AT NO. 27 100 FEET RING ROAD BTM LAYOUT, BENGALURU - 560 076.

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…RESPONDENTS (BY SRI R.S. RAVI, SR. COUNSEL FOR SRI R. CHANDRA KUMAR, ADV.)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS IN OS NO. 445 OF 2020 ON THE FILE OF THE VIII ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AND QUASH THE IMPUGNED ORDER DATED 12/01/2024 ON INTERIM APPLICATION UNDER ORDER VI RULE 17 OF CPC IN OS NO. 445 OF 2020 ON THE FILE OF THE VIII ADDL. SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU AS PER ANNEXURE-A AND TO DISMISS THE APPLICATION FOR AMENDMENT.

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THIS PETITION, HAVING BEEN RESEREVED FOR ORDERS ON 06.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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CAV ORDER

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(PER: HON'BLE MR JUSTICE S VISHWAJITH SHETTY)

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Defendant Nos.1 to 3 are before this Court in this writ

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petition filed under Article 227 of the Constitution of India, with a prayer to set aside the order dated 12.01.2024 passed on an

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interlocutory application filed under Order VI Rule 17 CPC in O.S.No.445/2020 by the Court of VIII Addl. Senior Civil Judge, Bengaluru Rural District.

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Heard the learned Counsel for the parties.

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O.S.No.445/2020 (Old No.1137/2005) is filed by the respondents herein before the jurisdictional Civil Court seeking the relief of permanent injunction restraining the defendants, their agents or anybody claiming under them from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. In the said suit, defendants had filed written statement opposing the suit claim. When the suit was at the stage of recording the plaintiffs' evidence, application under Order VI Rule 17 read with Section 151 CPC was filed on behalf of plaintiffs to incorporate proposed paragraph nos.6(b) to 6(j) after paragraph 6(a) in the plaint, and also to amend the prayer column by incorporating a prayer to declare the plaintiffs as absolute owners in possession of the suit schedule property, and also to declare that the sale deed dated 09.10.1995 alleged to have been executed by Govindappa in favour of defendant nos.1 & 2, and another sale

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deed dated 09.10.1995 alleged to have been executed by Govindappa in favour of defendant nos.3 to 5 in the office of the Sub-Registrar, Bengaluru South Taluk, Bengaluru, as sham documents, null and void. A further amendment was sought to amend the schedule of the plaint by inserting the words "ReSy.No.68" after the words "Sy.No.41/1". This application was opposed by the contesting defendants by filing objections. The Trial Court vide the order impugned, allowed the application filed on behalf of the plaintiffs to amend the plaint, subject to payment of costs of Rs.5,000/- payable to the defendants. Being aggrieved by the same, defendant nos.1 to 3 are before this Court in this writ petition.

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Learned Counsel for the petitioners having reiterated the grounds urged in the petition submits that the relief sought in the proposed prayer is barred by limitation. The application has been filed at a belated stage when the suit was at the stage of plaintiffs' evidence and therefore, in view of the proviso to Order VI Rule 17 of CPC, unless due diligence is proved, the Trial Court could not have entertained the application. Plaintiffs had earlier filed IA No.4 with a prayer to amend the plaint by

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changing survey number of the property as 'Sy No.68' instead of 'Sy No.41/1' by raising similar contentions which is now sought to be incorporated in the proposed paragraphs. Plaintiffs had earlier filed an application before the revenue authorities for change of revenue entries in respect of the land in dispute. Only after having failed in their attempt, they have filed this application seeking amendment of the plaint. In support of her arguments, learned Counsel for the petitioners has placed reliance on the judgments of the Hon'ble Supreme Court in the following cases :-

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(i) Pandit Malhari Mahale vs. Monika Pandit Mahale and Others - (2020) 11 SCC 549

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(ii) Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and Others - (2010) 14 SCC 596 and

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(iii) Vishwambhar and Others vs. Laxminarayan (Dead) through LRs and Another - (2001) 6 SCC 163.

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Per contra, learned Senior counsel for the contesting respondents has opposed the prayer made in the writ petition. He submits that in the original written statement filed by defendants, no where they have contended that the property

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bearing Sy.No.41/1 and Sy.No.68 are one and the same. Even

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in their amended written statement, which was filed after the plaint was amended pursuant to the orders passed on IA No.4, no specific contention has been raised stating that the property bearing Sy.No.41/1 and property bearing Sy.No.68 are one and the same. On the other hand, a claim is made that defendants have purchased 4 acres 39 guntas of land in Sy.No.68 from Thigalara Govindappa. He submits that according to the defendants, they have purchased the aforesaid property from Thigalara Govindappa under registered Sale Deeds dated 09.10.1995. Thigalara Govindappa has died on 01.07.1975. Death Certificate of Thigalara Govindappa is available on record. On the basis of the application submitted by the plaintiffs, the competent revenue officer has issued a report on 12.12.2019 which clearly states that after podi and durasti, land bearing Sy.No.41/1 has been renumbered as Sy.No.68. It is under these circumstances, an application was filed under Order VI Rule 17 of CPC with a prayer to incorporate additional paragraphs narrating all these events which are subsequent to filing of the suit and a prayer is also made to declare the plaintiffs as the absolute owners in possession of the suit

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property and also to declare that the Sale Deed dated 09.10.1995 executed by Thigalara Govindappa in favour of defendant Nos.1 to 3 are null, void and sham documents. He submits that proposed amendment is necessary for the purpose of proper and effective adjudication of the dispute involved, failing which it may lead to multiplicity of litigations. He submits that question of limitation can be always left open while considering application seeking amendment.

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In support of his arguments, he has placed reliance on the judgments of the Hon'ble Supreme Court in the following cases -

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(i) Nitaben Dinesh Patel vs. Dinesh Dahyabhai Patel - 2022 (1) Kar. L.R 191 (SC)

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(ii) Estralla Rubber vs. Dass Estate (P) Ltd. - (2001) 8 SCC 97

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Suit in OS No.445/2020 (Old No.1137/2005) was initially

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filed seeking for a decree of permanent injunction against petitioners herein from interfering with the peaceful possession and enjoyment of the suit schedule property bearing Sy.No.41/1 measuring 2 acres situated at Chikkanayakanahalli,

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Bengaluru East Taluk. It is the case of plaintiffs who are respondents in this petition that the suit schedule property is purchased by them under registered Sale Deed dated 24.11.2004 and thereafter, entries in the revenue records of the said land were also transferred in their name and they have been in peaceful possession and enjoyment of the suit schedule property. Alleging interference by defendants, they had failed suit in OS No.1137/2005 which was subsequently renumbered as OS No.445/2020. Written statement was filed by defendants denying interference with the suit schedule property and it was claimed that defendants were absolute owners in possession of property bearing Sy.No.68 of Chikkanayakanahalli Village, Bengaluru East Taluk.

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OS No.1112/2005 was filed by defendants in the present case, prior to filing of OS No.1137/2005, seeking a decree of permanent injunction in respect of property bearing Sy.No.68 and plaintiffs in OS No.1137/2005 are defendants in the said suit. Plaintiffs in OS No.1112/2005 claimed right, title and possession over the property bearing Sy.No.68 under registered Sale Deeds dated 09.10.1995 said to have been

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executed in their favour by one Thigalara Govindappa in

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respect of the land measuring 4 acres 39 guntas in Sy.No.68.

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IA No.4 was filed by plaintiffs with a prayer to amend the plaint by incorporating paragraph No.6(a) in the plaint which stated that land bearing Sy.No.41/1 was subsequently renumbered as Sy.No.68. The Trial Court had allowed IA No.4 and thereafter, additional written statement was filed contending Sy.No.41/1 and Sy.No.68 properties are totally different and they are not one and the same.

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It appears that subsequently plaintiffs in the present case had given a representation to the revenue authorities for rectification of Pahani, mutation etc. of land bearing Sy.No.68 contending that authorities had maintained parallel records in respect of property bearing Sy.No.68 and Sy.No.41/1 and therefore, there is confusion. The concerned revenue authorities after holding enquiry had issued a report on 12.12.2019 stating that land bearing Sy.No.41 totally measures 10 acres and after sub-division, it was numbered as Sy.No.41/1

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and 41/2. After phodi and durast, the said Survey Numbers were re-numbered as Sy.Nos.68/1 and 68/2. Subsequently,

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proceedings were initiated unsuccessfully by the plaintiffs in the present case before the revenue authorities for rectification of the survey number of their property and thereafter, present IA was filed in OS No.445/2020 seeking permission of Trial Court to amend the plaint.

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The proposed amendment is to bring on record the flow of title in respect of property bearing Sy.No.41 which was subsequently sub-divided and plaintiffs allegedly had purchased suit schedule property bearing Sy.No.41/1 measuring 2 acres under registered Sale deed dated 24.11.2004 executed in their favour by their vendor, who claims title under Thigalara Govindappa, the original owner of land bearing Sy.No.41 which was a gomal land and Thigalara Govindappa had acquired title over 5 acres of land out of 10 acres in Sy.No.41 from the Government after paying upset price on 07.11.1932. In the proposed amendment, it is also pleaded that after phodi and durast, land bearing Sy.No.41/1 was renumbered as Sy.No.68, in respect of which the defendants claim right and have instituted a separate suit in OS No.1112/2005 (new OS No.286/2017) Defendants claim right over the said property bearing Sy.No.68 under the registered Sale Deeds dated

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09.10.1995 said to have been executed in their favour by Thigalara Govindappa. According to the plaintiffs, Thigalara Govindappa has died on 01.07.1975 and they have produced his Death Certificate.

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In addition to aforesaid factual aspects, prayer is also made by plaintiffs to permit them to amend the prayer column of the plaint in OS No.445/2020 by raising additional prayers to declare their title in respect of the suit schedule property and also to declare the Sale Deeds dated 09.10.1995 said to have been executed by Thigalara Govindappa in favour of defendants in respect of property bearing Sy No.68 as null and void.

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It is relevant to note here that OS No.1112/2005 was initially filed by defendants in the present case seeking the decree of permanent injunction against plaintiffs in the present case in respect to property bearing Sy.No.68. Subsequently, plaint was amended in OS No.1112/2005 and additional prayer seeking declaration of title was incorporated and thereafter, suit was transferred and re-numbered as OS No.286/2017.

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It appears that after the plaint was amended in OS No.1112/2005 in the year 2017, plaintiffs in the present case

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had sought clarification from revenue authorities with regard to

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the confusion in the revenue records of the properties bearing Sy.No.41/1 and 68 and subsequently also filed application for amendment of the plaint in OS No.445/2020. The Trial Court having appreciated all these aspects of the matter and having found that it cannot be said that there was no due diligence on the part of the plaintiffs has rightly allowed the prayer made by the plaintiffs to amend the plaint by incorporating additional paragraphs to bring the factual aspects on record and also to permit them to raise additional prayers seeking declaration of their title and to declare the sale deeds of defendants dated 09.10.1995 executed by Thigalara Govindappa as null and void. In my considered opinion, the Trial Court was fully justified in allowing the proposed amendments which are material to effectively adjudicate the dispute between the parties and also to avoid multiplicity of proceedings. The proposed amendment will not change the nature of suit or the cause of action and the defendants who have amended their suit in OS No.1112/2005 cannot be heard to say so.

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According to plaintiffs, Thigalara Govindappa has died on 01.07.1975 and defendants claim right over the property

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bearing Sy No.68 under registered Sale Deed dated 09.10.1995 allegedly executed by Thigalara Govindappa. Plaintiffs have produced Death Certificate of Thigalara Govindappa. It is trite that fraud unravels everything and even the question of limitation shall be subject to fraud. When question of fraud arises, stage of the proceedings becomes immaterial. The judgments on which reliance has been placed by the petitioners' counsel therefore cannot be made applicable to the facts of the present case.

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In the case of Estralla Rubber (supra) , the Hon'ble Supreme Court in paragraph No.8 has observed as follows:-

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"8. It is fairly settled in law that the amendment of pleadings under Order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing the amendment should not result in injustice to the other side; normally a clear admission made conferring certain right on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant resulting in prejudice to such a right of the plaintiff, depending on the facts and circumstances of a given case. In certain situations, a time-barred claim cannot

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be allowed to be raised by proposing an amendment to take away the valuable accrued right of a party. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cause serious prejudice to the opposite side. This Court in a recent judgment in B.K. Narayana Pillai v. Parameswaran Pillai after referring to a number of decisions, in para 3 has stated, thus: (SCC p. 715)

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“3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in

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the pleadings to avoid uncalled-for multiplicity of litigation.”

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In para 4 of the same judgment this Court has quoted the following passage from the judgment in A.K. Gupta and Sons Ltd. v. Damodar Valley Corpn. (AIR pp. 9798, para 7)

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“The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neal. But it is also well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co."

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This Court in the same judgment further observed that the principles applicable to the amendment of the plaint are equally applicable to the amendment of the written statement and that the courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event. It is further stated that the

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defendant has a right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice and that any admission made in favour of the plaintiff conferring right on him is not withdrawn".

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In the case of Nitaben Dinesh Patel (supra) , the Hon'ble Supreme Court observed that, Court may, at any stage of the proceedings, allow either of the parties to alter or amend their 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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In the case of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another - 2022 SCC

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OnLine 1128 , the Hon'ble Supreme Court in paragraph Nos.71.5 to 71.10 has observed as follows:-

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"71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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71.6. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

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71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed."

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In the present case, the Trial Court has observed that question of limitation can be decided by raising an issue on the same. Parties are at liberty to lead evidence on the said issue and get the same adjudicated in accordance with law.

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In the case of LIC (supra) , it is observed that where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. Under the circumstances, the Trial Court was fully justified in passing the impugned order. Therefore, I do not find any merit in this writ petition. Accordingly, the writ petition is dismissed .

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In view of the disposal of the main petition, pending interlocutory application if any, does not survive for consideration. Accordingly, the same is disposed off.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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DN

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List No.: 1 Sl No.: 76

Shri. Srinivasa v. Dr. Gange Gowda

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Shri. Srinivasa v. Dr. Gange Gowda

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