Smt. Preethi Satish Vs Sri. M. Nagaraj

SRI. M. NAGARAJ S/O. LATE MUNIYAPPA, AGED ABOUT 58 YEARS, R/O. “SUKIRTI NILAYA”, NO. 1386, 9^TH A ROAD, JAYANAGAR 9^TH BLOCK, NORTH EAST END CIRCLE, BANGALORE – 560 069.

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…RESPONDENT (BY SRI. H. S. SACHIDANAND, ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER DTD 27.06.2024 PASSED ON IA NO. 1/2022 FILED BY THE PETITIONER / PLAINTIFF UNDER ORDER VI RULE 17 R/W SECTION 151 OF THE CPC IN OS NO. 5295/2020 ON THE FILE DO THE XL ADDL CITY CIVIL AND SESSION JUDGE BANGALORE CITY (CCH-41) PRODUCED AT ANNX-A AND CONSEQUENTLY ALLOW THE SAID APPLICATION AS PRAYED FOR.

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NC: 2026:KHC:5828 WP No. 25648 of 2024

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

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ORAL ORDER

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This petition by the plaintiff in O.S.No.5295/2020 on the file of the XL Additional City Civil and Sessions Judge, Bengaluru, is directed against the impugned order passed on I.A.No.1/2022, whereby the said application filed by the petitioner-plaintiff under Order VI Rule 17 CPC seeking amendment of the plaint by incorporating additional pleadings, additional prayers and to insert schedules was dismissed by the Trial Court.

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Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

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A perusal of the material on record will indicate that the petitioner-plaintiff instituted the aforesaid suit against the respondent-defendant for permanent injunction and for other reliefs in relation to the suit schedule immovable property. Subsequent to the said suit having been contested by the respondentsdefendants, during the course of plaintiff’s evidence, the petitioner

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HC-KAR

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– plaintiff filed the instant application seeking amendment of the plaint as hereunder:

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“APPLICATION UNDER ORDER VI RULE 17 OF THE

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CODE OF CIVIL PROCEDURE

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That for the reasons sworn to in the accompanying affidavit the Plaintiff most humbly prays that this Hon'ble Court may be pleased to permit the Plaintiff to amend the Plaint and incorporate the additional Pleadings/Prayer and Schedules as sought for below, it would be in the interest of justice and equity.

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AMMENDMENT SOUGHT FOR:

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At Page No.9, after Paragraph No.18, to add additional pleadings at Paragraph No.19, 20 & 21 as follows:-

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19. The Plaintiff submits that in terms of the joint development agreement dated 31.10.2014 entered with the Defendant he was liable to commence and complete construction of the Apartment Building in 2 years from the date of sanction plan or handing over of the vacant possession whichever is earlier and the Plaintiffs have handed over possession in January 2015 and the Defendant has obtained sanction plan on 30.01.2015 and the Defendant has failed to complete the construction of the apartment building and hand over possession of the Plaintiff’s Ground Floor Apartment within two years i.e. on or before 31.01.2017 and hence the Plaintiff is entitled for monthly

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rents/damages from the said period i.e from 01.02.2017 till date at the rate of Rs.35,000/- per month.

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20. The Plaintiff submits that during the pendency of the suit it has come to the notice of the Plaintiffs that the Defendant has completed the construction and the interiors and he is in occupation of the First, Second Floors i.e Suit Schedule 'C' Property in June 2022 and till date he has not even bothered to pay balance sum of Rs.85,00,000/payable to the Plaintiff in terms of the supplementary agreement dated 03.11.2014 and hand over the possession of the Ground Floor Apartment to the Plaintiff to the Plaintiff by 01.02.2017 and hence the Defendant is liable to pay interest on the said amount at 12% from the said date and as the date it works out to Rs.58,65,000/- as on 31.10.2022 from 01.02.2017.

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21. The Plaintiff submits that under the said circumstances the Defendant is liable to pay to the Plaintiff the sum of Rs.85,00,000/- + interest of Rs.58,65,000/- from 01.02.2017 till 31.10.2022 i.e totally Rs.1,43,65,000/- which the Defendant has failed to do so and hence the Plaintiff has a charge on the First and Second Floors of the buildings that has been allotted and fallen to the share of the Defendant i.e Suit Schedule 'C' Property under the joint Development Agreement dated 31.10.2014 and if the Defendant fails to pay the said amount with interest for the delayed period the Plaintiff is entitled to bring the First and Second Floors i.e Suit Schedule 'C' Property for sale to recover the said amounts payable by the Defendant.

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At Page No.10, to add additional privers after the existing prayer as follows:-

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(b) To Direct the Defendant to pay to the Plaintiff the sum of Rs.85,00,000/- with interest at the rate of 12% p.a for the delayed period i.e from 01.02.2017 till 31.10.2022 which works out to Rs.58,65,000/-i.e totally Rs.1,43,65,000/- with future interest till the date of payment of the same.

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(c) To direct the Defendant to pay damages at the rate of Rs.35,000/-per month as the damages for delay in handing over the possession of the Plaintiff's share i.e the Ground Floor Apartment from 01.02.2017 up to date i.e for 5 years 9 months totally amounting to Rs.24,15,000/-and continue to pay future monthly damages/rents at the rate of Rs.35,000/until handing over possession of the Ground Floor Apartment i.e Schedule 'B' Property to the Plaintiff.

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(d) In the event of the Defendant failing to pay the said amount there shall be a charge created on the First and Second Floors of the building i.e Suit Schedule 'C' Property allotted and fallen to the share of the Defendant under the joint development agreement dated 31.10.2014 and to bring the First and Second Floors i.e Suit Schedule 'C' Property of the building for sale for realization of the decretal amount.

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(f) For the relief of Permanent Injunction restraining the Defendant, his family members, henchmen, agents, followers or any person from interfering with the Plaintiff peaceful possession and enjoyment of the Suit Schedule 'B' Property.

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At page No.11 to amend the existing 'Suit Schedule Property' as "Suit 'Schedule 'A' Property" in the entire plaint and in the Schedule (Description of the Entire Property)and to add additional schedules as follows:-

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SUIT SCHEDULE 'B' PROPERTY

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(Property fallen to the share of the Plaintiff)

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ALL THAT PIECE AND PARCEL of the Immovable Property being the Entire Ground Floor building measuring approximately 1800 Square Feet of Super Built up Area with one covered car parking space in the stilt floor together with 25% or 600 Sq.ft of undivided share, right, title and interest in the Schedule 'A' Property i.e Property bearing Municipal No.252, VI Main Road, 4th Block, in Jayanagar Extension, Bangalore, together with proportionate share in common areas, such as passages, lobbies, lifts, staircases and other areas of common use together with civil amenities.

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SUIT SCHEDULE 'C' PROPERTY

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(Property fallen to the share of the Defendant)

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ALL THAT PIECE AND PARCEL of the Immovable Property being the Entire First Floor Apartment and Second Floor Apartment each measuring approximately 1800 Square Feet of Super Built up Area, with 4 Covered Car Parking spaces in the stilt floor together with 75% or 1800 Sq.ft of undivided share, right, title and interest in the Schedule 'A' Property i.e Property bearing Municipal No.252, VI Main Road, 4th Block, in Jayanagar Extension, Bangalore, together with proportionate share in common areas, such as passages, lobbies, lifts, staircases and other

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areas of common use and other areas of common use together with civil amenities.”

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The said application having been opposed by the respondents-defendants, the trial Court proceeded to pass the impugned order dismissing the application filed by the petitionerplaintiff by holding as under:

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ORDERS ON Ι.Α. ΝΟ. 1/22

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This I.A. No. 1/22 is filed by the plaintiff under Order VI Rule 17 of Code of Civil Procedure, 1908 seeking permission to amend the plaint by incorporating additional pleadings, additional prayers and to insert schedules as narrated in the proposed amendment.

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2. It is stated in the affidavit annexed with the application that, she had filed the present suit for the relief of Permanent Injunction and the defendant had entered into a registered joint development agreement dated 31.10.2014 in respect of suit schedule property and this defendant had agreed to pay sum of Rs.2,40,00,000/- to the plaintiff and also to complete the construction of the building and hand over the ground floor apartment and one Car parking space in favour of the plaintiff. The defendant has violated the terms and conditions of the joint development agreement and has not completed construction and after lapse of 6 years he has paid Rs.1,35,00,000/- in the year 2015 and paid Rs. 10,00,000/- in the year 2018 and is still due for

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Rs.85,00,000/-. The defendant has not completed the building and has not performed his part of contract and he went on violating the terms of agreement and the supplementary agreement dated 03.11.2014 and hence, under the said changed circumstances of the case, it is necessary to incorporate the additional pleadings, prayers and schedules for just adjudication of all the disputes arising out of the contract and if the application is allowed no hardship or injury will be caused to the defendant and on the other hand, the plaintiff would be put to great hardship and injury if the application is not allowed and thus sought to allow the application.

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3. Opposing the said application, the defendant has filed objections stating that the application is not maintainable, either in law or on facts, as the proposed amendment is nothing but introduction of an entirely new case for recovery of money. The plaintiff had filed the suit for the relief of Permanent Injunction to restrain the defendant from creating any 3rd party rights and now by way of amendment is taking a contention which is diametrically opposite to her stance in the suit, which cannot be permitted and the proposed amendment filed for recovery of money from the defendant is beyond the period of limitation and hence, the same cannot be introduced by way of amendment.

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4. It is further contended that though the proposed facts were well within the knowledge of the plaintiff, she has deliberately suppressed the same only with an intention to

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enrich herself at the cost of the defendant and the apartment unit is now ready, but the plaintiff is unwilling to take possession of the same for the reasons best known to her and is now attempting to mislead this Court under the pretext of there being delay on the part of the defendant and this defendant has completed the entire the project and the plaintiff's share would be handed over and hence now she cannot be permitted to contend that the defendant is liable to pay the amount. The plaintiff cannot be permitted to amend the plaint to suit her convenience and hence, the application is not maintainable and is liable to be rejected.

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5. Heard learned counsel for plaintiff and

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defendant on I.A. No. 1/22. Perused records.

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6. Now the points that would arise for

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consideration of this Court is as hereunder;

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1. Whether the proposed amendment changes the fundamental nature of the suit ?

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2. Whether the proposed amendment is necessary for just decision of the case

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3. What order ?

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7. My findings to the above points are as follows:

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POINT NO.1 :: In the Affirmative

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POINT No.2 :: In the Negative POINT No.3 :: As per final order for the following:-

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REASONS

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8. POINTS NO-1 & 2 :: Since both issues are

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inter-connected, to avoid repetition, they are taken up together for consideration.

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The present suit is filed by the plaintiff as against the defendant for the relief of Permanent Injunction to restrain the defendant from creating 3^rd party rights over the suit schedule property and also to restrain him from putting up further construction in the suit schedule property. According to the plaintiff, the defendant was a tenant under the plaintiff in the suit schedule property and he entered into an agreement with the parents of the plaintiff under registered joint development agreement to put up construction of apartment within 24 months from the date of agreement with an assurance of providing the ground floor and car parking in the newly constructed apartment to the parents of the plaintiff and he had also entered into an unregistered supplementary agreement with the father of the plaintiff on 31.10.2014 agreeing to pay sum of Rs.2,40,00,000/- to the father of the plaintiff to vacate their house. As per the agreed terms, the house was vacated and possession of the property was handed over to the defendant and he got demolished the old building and started work. But even after lapse of considerable long period the defendant did not show any progress as per the agreed terms in the joint development agreement and after the death of the parents of the plaintiff, this plaintiff acquired the suit schedule property under registered Release Deed dated 26.12.2019. Though the

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defendant was required to complete the construction and hand over the built up area with car parking in the ground floor to the plaintiff as per the agreement even after lapse of 6 years, he has not acted upon the agreed terms and has given untenable reply and threatened the plaintiff with dire consequences whenever the plaintiff questioned him and since, the defendant tried to create 3rd party interest over the property of the plaintiff, the present suit is filed.

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9. It is seen from the records that, the defendant caused appearance and filed the written statement and when the matter is set down for plaintiff evidence, she has come up with the present application seeking amendment of the plaint. On going through, the proposed amendment it shows the plaintiff by way of amendment is seeking to incorporate additional pleadings and seek additional reliefs to direct the defendant to pay sum of Rs.85,00,000/- with interest at the rate of 12% p.a. and for damages at the rate of Rs.35,000/- p.m. for delaying handing over the possession of the plaintiff's share and to create charge on the first and second floor of the building receipt of the fallen to the share of defendant under the agreement and for the relief of Permanent Injunction and also to insert the schedule 'B' & 'C' property.

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10. As stated earlier, the suit was one for bare injunction to restrain the defendants from creating any 3rd party right over the suit property. Now by way of amendment, the plaintiff is seeking recovery of money and damages and

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such other reliefs which is totally in contra distinction to the earlier pleadings and the prayer sought.

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11. It is well settled preposition of law that the grant or refusal of amendments is discretionary power of the Court and the said power must be exercised judiciously and with great care. Some basic tests which governs the grant or refusal of amendment is whether such amendment is necessary for determination of real controversy in question and the potentiality of prejudice or injustice which is likely to be caused to the other side and more importantly the Court to take into account whether the proposed amendment constitutionally or fundamentally changes the nature and character of the suit.

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12. As stated earlier the suit is one for permanent injunction to retrain the defendants from creating 3^rd party interest over suit property. Now by way of amendment the plaintiff intends to incorporate additional pleadings and is seeking additional reliefs of recovery of money and damages and for the relief of Permanent Injunction and also to insert the schedule 'B' & 'C' property.

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13. When the parameters for allowing or refusing amendments are kept in mind, the proposed amendments changes. the nature of the suit fundamentally, which is not permissible under the law. Hence, the application deserves to be rejected. In view of the reasons assigned this Court proceeds to answer point No.1 in the Affirmative and Point No.2 is answered in the Negative.

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14. POINT NO-3 :: In view of my answer to PointNo.1 and 2, this Court proceed to pass the following:

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ORDER

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I.A. No.1/22 filed by the plaintiff under Order VI Rule

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17 of CPC is dismissed.

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No order as to costs.”

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Aggrieved by the impugned order passed by the trial Court, the petitioner is before this Court by way of the present petition.

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A perusal of the impugned order will indicate that the trial Court has committed an error in dismissing the amendment as sought for by the petitioner-plaintiff by adverting to the merits of the proposed amendment, which is impermissible in law in the light of the judgment of the Hon’ble Apex Court in the case of Rajesh Kumar Agarwal v. K.K. Modi and others - AIR 2006 SC 1647 . It is also pertinent to note that the impugned order passed by the trial Court dismissing the request for amendment is contrary to the principles governing amendment as held by the Hon’ble Apex Court in the case of LIC v. Sanjeev Builders (P) Ltd. - (2022) 16

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SCC 1 and a co-ordinate Bench of this Court at Dharwad Bench in the case of Shri Mohammadrafi and Anr., Vs. Bandenawaz and Ors – W.P.108512/2025 dated 16.12.2025.

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However, in view of the judgment of the Hon’ble Apex Court in the case of Sampath Kumar Vs. Ayyakannu and Ors. – AIR 2002 SC 3369 and LC Hanumanthappa v. HB Shivakumar - AIR 2015 SC 3364, the proper course of action would be to allow the amendment by directing that the proposed amendment shall not relate back to the date of the suit but shall be reckoned/considered from the date of the application having been filed i.e., 15.11.2022 by leaving open the question of limitation to be decided by the trial Court along with other issues in the suit.

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Under these circumstances, I deem it just and appropriate to set aside the impugned order and allow I.A.No.1/2022 filed by the petitioner-plaintiff by issuing certain directions.

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In the result, I pass the following:

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ORDER

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i) The petition is hereby allowed.

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ii) The impugned order dated 27.06.2024 in

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O.S.No.5295/2020 on the file of the XL Additional City Civil and Sessions Judge, Bengaluru City, is hereby set aside.

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iii) I.A.No.1/2022 filed by the petitioner-plaintiff is hereby allowed subject to the condition that the proposed amendment shall

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not relate back to the date of the suit, but shall be reckoned/considered from the date of the amendment application being filed on 15.11.2022 and by leaving open the question/contention of limitation to be decided with other issues in the suit.

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iv) Liberty is reserved in favour of the respondent to file additional written statement to the amended plaint and take up all contentions including the defence of limitation.

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v) The Trial Court is directed to dispose of the suit as expeditiously as possible.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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MDS; List No.: 2 Sl No.: 1

Smt. Preethi Satish v. Sri. M. Nagaraj

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Smt. Preethi Satish v. Sri. M. Nagaraj

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