Sri. P. Kishore Vs the Grain Merchants Co-Operative Bank Ltd.

THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 22.06.2023 PASSED IN O.S.NO.3734/2018 ON THE FILE OF LV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT FOR PERMANENT INJUNCTION AND ETC.

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THIS APPEAL, COMING ON FOR PART HEARD IN ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiffs

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assailing the dismissal decree dated 22.06.2023 passed in O.S.No.3734/2018 instituted by the plaintiffs seeking injunction simplicitor. The said judgment is assailed in the captioned appeal.

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NC: 2026:KHC:8059 RFA No. 1852 of 2023

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For the sake of brevity, the parties are referred to

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as per their rankings before the Trial Court.

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Brief facts leading to the case are as under;

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The plaintiffs, asserting absolute ownership over the

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suit schedule property by virtue of a Sale Certificate, instituted a suit for bare injunction alleging unlawful interference by the defendants with their peaceful possession and enjoyment of the property.

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Upon service of summons, the defendants entered appearance and filed a detailed written statement. While the suit was contested on certain aspects, the defendants unequivocally admitted that the plaintiffs are the owners of the Cellar Floor bearing Municipal Nos.5 and 5/1, having a super built-up area of 3,424 square feet out of 4,104.48

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square feet comprised in property Nos.1/8 and 8/1 situated at S.C. Road (Natarathna Gubbi Veeranna Road), Division No.22, Bangalore, together with an undivided right, title and interest of 500 square feet in land

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measuring East to West 81 feet 6 inches and North to South 50 feet 3 inches.

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In light of the rival pleadings, the Trial Court framed appropriate issues and the parties were relegated to trial.

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To substantiate their title as well as possession as on the date of institution of the suit, the plaintiffs relied upon the Sale Certificate marked at Ex.P.1. They further produced tax paid receipts, electricity bills and photographs to demonstrate continuous and lawful possession of the property.

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On the other hand, the defendants examined one witness as D.W.1 and produced two photographs marked at Exs.D.1 and D.2. The principal defence urged by the defendants was not a denial of the plaintiffs’ title to the cellar portion, but a contention that while the Sale Certificate relates to the cellar floor, the plaint schedule

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described the property as a ground floor portion. To that limited extent, the defendants raised a contest.

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The Trial Court, placing reliance on the discrepancy between the schedule described in the plaint and the property described in the Sale Certificate at Ex.P.1, held that the identity of the property was not established and, on that ground, proceeded to dismiss the suit.

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At the stage of final hearing of the appeal, in view of the submission made by the learned counsel for the defendants highlighting the discrepancy, the learned counsel for the plaintiffs sought leave to file an application for amendment of the plaint schedule so as to bring it in conformity with the description contained in the Sale Certificate.

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In response, the learned counsel for the defendants fairly submitted that if the plaintiffs confine their claim of title and possession strictly to the cellar

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portion as reflected in the Sale Certificate, the defendants would have no objection and would not contest such claim. It is in this backdrop that the plaintiffs have filed I.A.No.1/2026 seeking amendment of the schedule, which

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application is taken on record.

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Having heard the learned counsel appearing for the respective parties and having perused the material on record, the following points arise for consideration:

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(i) Whether the plaintiffs have made out sufficient grounds to allow the amendment of the plaint schedule as sought in I.A.No.1/2026?

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(ii) Whether, in view of the proposed amendment and the stand taken by the defendants, the judgment and decree passed by the Trial Court warrant interference and reversal?

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(iii) What order?

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Findings on point No.(i) :-

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Pending appeal, the plaintiffs have filed I.A.No.1/2026 under Order VI Rule 17 of the Code of Civil

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Procedure seeking amendment of the plaint schedule.

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The grievance projected in the application is that due to an inadvertent error, the plaint schedule does not expressly describe the property as “Cellar Floor”, though the plaintiffs’ title deed, namely the Sale Certificate marked at Ex.P.1, clearly pertains to the cellar portion. By way of the proposed amendment, the plaintiffs seek only to rectify the description of the suit schedule property so as to bring it in conformity with the schedule contained in the Sale Certificate and thereby remove the inconsistency which weighed with the Trial Court while dismissing the suit.

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Order VI Rule 17 CPC., embodies the salutary principle that procedural law is intended to advance the cause of justice and not to thwart it. The power to allow amendment is wide and can be exercised at any stage of the proceedings, including in appeal, provided the amendment is necessary for determining the real question in controversy between the parties. The dominant considerations governing such an application

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(i) whether the amendment is bona fide ; (ii) whether it introduces a new or inconsistent cause of action; (iii) whether it changes the fundamental nature of the suit; and (iv) whether it causes prejudice to the opposite party which cannot be compensated in terms of costs.

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In the present case, the proposed amendment does not introduce a new cause of action nor does it alter the nature and character of the suit. The suit continues to be one for bare injunction founded on title under the Sale Certificate. The plaintiffs are not seeking to enlarge their claim or lay a foundation for a different relief. On the contrary, the amendment merely seeks to correct the description of the property so as to align it with Ex.P.1, which has been the very basis of the plaintiffs’ claim from inception. The identity of the property is not being substituted; rather, the schedule is being clarified to reflect the true and admitted subject matter of the transaction.

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Significantly, the defendants have fairly conceded that if the plaintiffs restrict their claim to the cellar portion as described in the Sale Certificate, they have no objection. In such circumstances, no prejudice, much less irreparable prejudice, would be caused to the defendants by allowing the amendment. On the contrary, refusal to permit rectification of a clerical or descriptive error would result in perpetuating technical injustice and compelling multiplicity of proceedings.

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The object of adjudication is to decide the real controversy between the parties and to bring quietus to the dispute. Courts, while exercising appellate jurisdiction, are equally empowered to allow amendments if the same subserve the ends of justice and avoid further litigation. In the case on hand, permitting the amendment would effectively remove the very ground on which the Trial Court non-suited the plaintiffs and would facilitate complete and effective adjudication of the lis.

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In that view of the matter, this Court, in exercise

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of its appellate powers and guided by the broader principles underlying Order VI Rule 17 CPC., deems it just and appropriate to allow I.A.No.1/2026. Accordingly, Point No.(i) is answered in the " Affirmative" and the plaintiffs are permitted to amend the plaint schedule as prayed for in the application.

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Findings on Point No.(ii) :-

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The defendants have stoutly contested the suit. The fulcrum of their defence is that the plaintiffs, though admittedly purchasers of the cellar floor bearing Municipal Nos.5 and 5/1 under the Sale Certificate, have instituted the present suit describing the suit schedule property as a ground floor portion. Proceeding on this premise, the defendants have attempted to discredit the plaintiffs’ claim by contending that the property described in the plaint does not correspond with the property conveyed under Ex.P.1 and therefore, the plaintiffs cannot assert either

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title or lawful possession in respect of the property as described in the plaint schedule.

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It is in this backdrop that the defendants have sought to contend that, as on the date of filing of the suit, the plaintiffs neither had title to the property described in the plaint nor were in lawful possession thereof. The thrust of the defence is not a categorical denial of the Sale Certificate in favour of the plaintiffs, but rather a challenge founded upon the discrepancy in the description of the property. According to the defendants, such variance in the schedule goes to the root of the matter and renders the suit liable to dismissal.

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In order to appreciate the true nature of the controversy and the core issue revolving around the alleged defective description of the suit schedule property, this Court deems it appropriate to extract paragraph No.3(g) of the written statement, which encapsulates the

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essence of the defendants’ objection. Paragraph No.3(g) of

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the written statement reads as under:

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"3(g). That on 16.12.2011, the Second Defendant has sold the property i.e. portion of the cellar floor bearing Municipal No.5 & 5/1 with super built area of 3424 sq.ft from and out 4104.48 sq.ft. comprised in property bearing No.1-8 and 8/1, situated at Subedar Chatram Road (Natakarathna Gubbi Veeranna Road) Division No.22, Bangalore with undivided right title and interest of 500 sq.ft. in the land measuring East to West 81 ft 6 inches and North to South 50 ft. 3 inches and bounded on the East by Subedar Chatram Road, West by Aparna Theatre, North by Sangam Lodge, and South by Aparna Theatre to the Plaintiffs (1) Shri. Kishore P and (2) Prakash K for a sum of Rs.1,05,00,000/-. Copy of the Sale Certificate date 16.02.2011 is herewith produced and marked as Document No.9. The Plaintiffs have no manner of right, title or interest over the 680.48 sq.ft. and bore well in the cellar floor and ground floor of the property. The Plaint Schedule Property is the ground floor of the property. The plaint schedule property is not the cellar floor subject matter of Sale Certificate issued by the Defendant. The Plaintiffs are not in lawful possession of the plaint schedule property. The Plaintiffs are carrying on business in the cellar floor of the property purchased by them."

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(emphasis supplied)

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On a careful examination of the defence set up in

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the written statement, it becomes manifest that the defendants have not, in substance, disputed the plaintiffs’ title or possession in respect of the cellar floor bearing Municipal Nos.5 and 5/1. The gravamen of their objection was confined to the discrepancy in the description of the suit schedule property. Their contention throughout was that while the Sale Certificate pertains to the cellar portion, the plaint schedule projected the property as a ground floor, thereby creating ambiguity as to identity. To that limited extent, the defendants resisted the suit.

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Significantly, even while contesting the suit, the defendants have partially admitted the plaintiffs’ title— albeit specifically in relation to the cellar floor bearing Municipal Nos.5 and 5/1. In paragraph No.3(g) of the written statement, extracted supra, the tenor of the pleading clearly acknowledges that the plaintiffs have acquired right, title and interest over the cellar portion under the Sale Certificate. The dispute, therefore, was

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never with regard to the plaintiffs’ title per se, but only with respect to the description of the property in the plaint schedule.

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Now that the amendment application has been allowed and the plaint schedule stands rectified so as to bring it in conformity with the Sale Certificate at Ex.P.1, the very foundation of the contest no longer survives. The defendants have fairly conceded that they do not dispute the plaintiffs’ title and possession in respect of the cellar floor as described in the amended schedule. Consequently, the lis between the parties, insofar as it concerns title and possession over the cellar portion, stands substantially resolved.

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Order XII Rule 6 of the Code of Civil Procedure confers a salutary power upon the Court to pronounce judgment on admissions at any stage of the proceedings. The object of this provision is to enable the Court to render a speedy judgment where there is a clear,

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unequivocal and unambiguous admission of fact, either in the pleadings or otherwise, so as to avoid protracted litigation on issues which are no longer in controversy. The admission must be categorical and sufficient to entitle the plaintiff to the relief claimed, without necessitating further evidence.

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In the case on hand, the defendants’ written statement, particularly paragraph No.3(g), contains an express acknowledgment of the plaintiffs’ title to the cellar floor. There is no assertion of independent title or possessory right by the defendants over the cellar portion. On the contrary, a holistic reading of the pleadings indicates that the defendants’ resistance was solely premised on the alleged defective description in the plaint. With the amendment now curing that defect, the admissions assume determinative significance.

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When title and possession over the cellar portion stand admitted, and when no rival claim or interference is

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asserted by the defendants in respect of that portion, the plaintiffs are unquestionably entitled to protection of their possession. In such circumstances, insisting upon a fullfledged adjudication would be an empty formality and contrary to the very spirit of Order XII Rule 6 CPC.

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Accordingly, in view of the clear and unequivocal admissions made by the defendants and the rectification of the schedule by way of amendment, this Court holds that the plaintiffs are entitled to a decree protecting their possession in respect of the cellar floor bearing Municipal Nos.5 and 5/1 having a super built-up area of 3,424 square feet. The judgment and decree of the Trial Court, which proceeded on the discrepancy in description, cannot be sustained and therefore warrant reversal. Point No.(ii) is answered in the "Affirmative" and the appeal may be disposed of in terms of the above findings.

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Point No.(iii) :- For the foregoing reason, this Court passes the following:

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ORDER

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(i) The Regular First Appeal is hereby allowed.

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(ii) The judgment and decree dated 22.06.2023 passed in O.S.No.3734/2018 by the LV Additional City Civil and Sessions Judge, Bengaluru (CCH-56), are set-aside.

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(iii) The suit filed by the plaintiffs is decreed. The defendants No.1 and 2, their agents, servants or any person claiming through or under them, are hereby permanently restrained from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property, namely the cellar floor bearing Municipal Nos.5 and 5/1, as described in the amended plaint schedule.

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(iv) It is, however, made clear that the decree granted herein shall be confined strictly to protection of possession over the suit schedule property. The plaintiffs shall not, under the guise of this decree,

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enlarge their rights or encroach upon the common areas, including the staircase and open space abutting the property. Any limited easementary rights, if available to the plaintiffs in respect of such common areas, shall be exercised strictly in accordance with law and shall not amount to exclusive occupation.

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(v) Draw decree accordingly.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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NBM,HDK List No.: 1 Sl No.: 15

Sri. P. Kishore v. the Grain Merchants Co-Operative Bank Ltd.

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Sri. P. Kishore v. the Grain Merchants Co-Operative Bank Ltd.

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