M/S Teknopoint Trading Company Pvt. Ltd. Vs Smt P Anitha

M/S. S.S.S. PROJECTS LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1 OF 1959 HAVING REGISTERED OFFICE AT NO. SOUTH PARK ROAD NEHRU NAGAR BANGALORE-560020 REP. BY ITS MANAGING DIRECTOR SRI. K. SATHISH KUMAR.

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M/S. WONDER PROJECTS DEVELOPMENT PVT LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT OFFICE AT NO.80, 2ND CROSS HULKUL ASCENT, LAVELLE ROAD BANGALORE-560001 REP. BY ITS MANAGING DIRECTOR. …RESPONDENTS (BY MR. AKASH V.T. ADV., FOR R1 [ABSENT] MR. PRADEEP NAYAK MR. SANKEERTH VITTAL MS. NANDINI S. PATIL AND MS. SURABHI K.C. ADVS., FOR M/S. KEYSTONE PARTNERS FOR R4)

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THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH AND SET ASIDE THE IMPUGNED ORDER DATED 3.4.2018 IN I.A.NO.III PASSED IN O.S.NO.459/2016 BY THE HON'BLE XX ADDITIONAL CITY CIVIL AND SESSION JUDGE (CCH 32) AT ANNEXURE-B & ETC.

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HC-KAR

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 11.03.2026, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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This writ petition is filed challenging the order dated 03.04.2018 passed on I.A.No.III filed by the respondent No.1 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short 'CPC') in O.S.No.459/2016 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru (for short 'the Trial Court')

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Sri.K.G.Raghavan, learned Senior counsel for Sri.Maneesha Kongovi, the learned counsel appearing for the petitioners submits that the Trial Court has proceeded to pass the impugned order without considering the material on record in its proper perspective. It is submitted that the Trial Court has proceeded to allow the application filed under Order VI Rule 17 of the CPC by the respondent No.1, in a casual and routine manner without assigning any cogent reasons for allowing the same. It is

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further submitted that the said amendment sought is to include a prayer for declaration that the sale deeds dated 24.01.2007 and 23.06.2016 are null and void, however, the said prayer is beyond the period of limitation for the relief of declaration, which is impermissible. It is also submitted that the effect of the amendment is a prayer for declaration of the sale deeds, wherein the petitioners are the interested parties and as on the date of passing of the order for amendment of plaint, the petitioners were not arrayed as parties and only later in point they were impleaded, which is impermissible. Hence, he seeks to allow the petition.

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Sri.Akash.V.T, learned counsel appearing for the respondent No.1 has filed vakalath for the respondent No.1, however, he has not entered appearance today or even on the previous hearings.

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Sri.Pradeep Nayak, learned counsel appearing for respondent No.4 supports the contentions advanced by

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the learned Senior counsel for the petitioners and seeks to allow the petition.

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I have heard the arguments of the learned Senior counsel for the petitioners, the learned counsel for the respondent No.4 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

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The material on record indicates that the respondent No.1-plaintiff filed a suit in O.S.No.459/2016 seeking the relief of declaration, possession, permanent injunction and other reliefs. In the said suit, the respondent No.1-plaintiff filed an application under Order VI Rule 17 of the CPC seeking amendment of the plaint and to add a prayer for declaration that the sale deeds dated 24.01.2007 and 23.03.2016 are null and void. The Trial Court proceeded to allow the application.

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The learned Senior counsel for the petitioners

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rightly submits that the Trial Court has proceeded to allow

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HC-KAR

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the application in a routine and casual manner without

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giving any cogent reasons. The order of the Trial Court

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dated 03.04.2018 is extracted as under:

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"Heard on I.A.No.III. Perused the I.A. III and also the proposed amendment and also relief sought in the suit. I.A III is allowed."

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A perusal of the aforesaid order makes it clear that

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there are absolutely no reasons assigned by the Trial Court while allowing the application for amendment of the plaint.

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The other contention of the learned Senior counsel for the petitioners is that the respondent No.1plaintiff by way of the amendment seeks to make an addition to the prayer by seeking declaration of the sale deeds dated 24.01.2007 and 23.03.2016 as null and void.

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The said relief specifically relating to 24.01.2007 is barred by limitation. To appreciate the said contention, it would be useful to refer to the decision of the Hon'ble Supreme Court in the case of LIFE INSURANCE CORPORATION

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OF INDIA Vs. SANJEEV BUILDERS PRIVATE LIMITED

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AND ANOTHER¹ . The relevant paragraphs are extracted as under:

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"71.3. The prayer for amendment is to be allowed:

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71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties.

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71.3.2. To avoid multiplicity of proceedings, provided

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(a) the amendment does not result in injustice to the other side,

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(b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and

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(c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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71.4. A prayer for amendment is generally required to be allowed unless:

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71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration.

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1 2022 SCC Online SC 2018

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71.4.2. The amendment changes the nature of the suit.

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71.4.3. The prayer for amendment is mala fide,

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or

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71.4.4. By the amendment, the other side loses a valid defence.

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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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71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897].)"

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(emphasis supplied)

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The aforesaid enunciation of law laid down by

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the Hon'ble Supreme Court makes it clear that the application for amendment of the plaint seeking to introduce a time-barred claim which could result in the divesting of the opposite party's accrued rights, cannot be allowed. In the instant case, the sale deed dated 24.01.2007 is more than 10 years prior to the filing of the application, whereas the limitation period as per the Limitation Act, 1963, to seek a relief of declaration is 3 years. Hence, I am of the considered view that the prayer sought to be added by the amendment is barred by limitation and is impermissible.

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Furthermore, a perusal of the affidavit accompanying the application indicates that the respondent No.1-plaintiff found out about the sale deeds only after the filing of the suit. However, such an assertion cannot be accepted purely because the sale deeds in question are registered documents. To appreciate the same, it would be useful to place reliance

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on the decision of the Hon'ble Supreme Court in the case

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of DILBOO Vs. DHANRAJ AND OTHERS² , wherein it was

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held as under:

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"20. ….Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge."

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It would also be useful to refer to the decision

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of the Hon'ble Supreme Court in the case of SURAJ LAMP

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AND INDUSTRIES (P) LTD. (2) Vs. STATE OF

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HARYANA³ , wherein it was held as under:

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15. In the earlier order dated 15-5-2009 [(2009) 7 SCC 363 : (2009) 3 SCC (Civ) 126] , the objects and benefits of registration were explained and we extract them for ready reference: (SCC p. 367, paras 15-18)

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“15… 16….

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17.………Registration of a document gives notice to the world that such a document has been executed.

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2 (2000) 7 SCC 702

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3 (2012) 1 SCC 656

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18. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”

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The aforesaid enunciation of law laid down by

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the Hon'ble Supreme Court makes it clear that the registration of a document serves as a deemed and constructive notice, which can be ascertained by undertaking due diligence. In the instant case, the assertion of the respondent No.1-plaintff in the affidavit that he was unaware of the sale deeds cannot be accepted

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purely because the said sale deeds in question are registered documents, which could have been ascertained by due diligence.

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It is also noticed that the unamended plaint mentions that the respondent No.1-plaintiff executed a registered agreement of sale dated 24.09.2003, which was subsequently cancelled and further also executed a sale deed dated 26.12.2006 in return for a sale consideration, which is lower than the Government value of the property. It is further stated that the defendant No.2 in the suit, with an intention to cheat, did not pay the sale consideration. However, in the application for amendment of plaint, a totally diagonal stand is taken that the plaint schedule property was given as security for receiving a loan amount and that the respondent No.1-plaintiff had used the property as a mortgage. Such a contention by way of an amendment intends to change the nature of the transaction from a sale to a mortgage, which inadvertently changes the nature of the suit. It is clearly held in the

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case of LIFE INDIA CORPORATION referred supra that an amendment that changes the nature of the suit cannot be allowed. Hence, even on this ground the impugned order is required to be interfered with.

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For the aforementioned reasons, I proceed to

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pass the following:

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ORDER

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(i) The writ petition is allowed

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(ii) The order dated 03.04.2018 passed on I.A.No.III in O.S.No.459/2018 by the XX Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

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Consequently, the I.A.No.III is rejected.

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No order as to costs.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV

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List No.: 2 Sl No.: 1

M/S Teknopoint Trading Company Pvt. Ltd. v. Smt P Anitha

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M/S Teknopoint Trading Company Pvt. Ltd. v. Smt P Anitha

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