Research › Search › Judgment

Karnataka High Court · body

2008 DIGILAW 591 (KAR)

Vasanth Madhava v. E. Seshadri

2008-10-15

A.S.BOPANNA

body2008
ORDER A.S. Bopanna, J.— The petitioner is assailing the order dated 6.9.2007 passed on I.A. No. 14 in O.S. No. 1083/2000. The said application is filed under Order 6 Rule 17 CPC seeking amendment of the plaint by introducing para-8A after deleting certain portions in para-8 of the plaint. 2. I have heard Sri. Chandrashekar, learned Counsel appearing for the petitioner and Sri. Krishnakumar, learned Counsel appearing for the respondent, and perused the writ papers including the order dated 6.9.2007 which is impugned in the petition. 3. The petitioner herein is the plaintiff in O.S. No. 1083/2000. The said suit is filed by the plaintiff against the defendant for a judgment and decree of specific performance. The basis of the contention in the suit is, apart from the right for specific performance in respect of the property it is also stated with regard to the manner in which the construction was put up on the site. Initially it is pleaded by the plaintiff that the construction was put up by the plaintiff after obtaining necessary sanctions from the authorities and engaging a contractor in this regard. Along with the suit documents, a book which contains the details of the amount expanded towards site and construction is also produced and the said document is subsequently marked as Ext.P-18 at the time of evidence. The said book contains certain accounts maintained and the relevant details are indicated in the handwriting. At the first instance, the plaintiff has pleaded that the handwriting in the said book is that of the plaintiff. The said statement is made at para-8. By way of amendment by introduction of para-8A, the said portion is sought to be deleted and it is sought to state that the handwriting found in the said book is that of the defendant. The respondent herein who is the defendant opposed the said application filed in I.A. No. 14. The trial Court after considering the rival contentions has rejected the said application. 4. In this background a perusal of the order passed by the trial court would no doubt indicate that the trial court has relied on the decisions cited by the learned Counsel for the plaintiff with regard to the principles relating to amendment of the plaint. The trial Court after considering the rival contentions has rejected the said application. 4. In this background a perusal of the order passed by the trial court would no doubt indicate that the trial court has relied on the decisions cited by the learned Counsel for the plaintiff with regard to the principles relating to amendment of the plaint. According to the learned Counsel for the plaintiff, though almost all the decisions have been analyzed by the trial court, the most important decision relied in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, AIR 1983 SC 462 has not been taken note of except indicating in the list mentioned in the course of the order. According to the learned Counsel, the said judgment would be relevant for the purpose and the non-consideration has lead to erroneous conclusion. The law is well settled in this regard and therefore I need not refer to the reasons assigned by the court by referring to he said judgment. In that context, what requires to be noticed is the relevant contentions urged before me while supporting as well as opposing the order passed by the court below. 5. In this regard, learned Counsel appearing for the petitioner would contend that the trial court despite noticing the principle laid by the courts relating to the amendment being allowed to the plaint has ultimately rejected the application only on the ground that the admission made earlier in the plaint is now sought to be resiled and a different stand is taken which would affect the accrued right to the defendant. Learned Counsel would contend that this aspect of the matter has been in fact dealt in the decision in the case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, AIR 1983 SC 462 wherein the Hon'ble Supreme Court has stated that with-drawing of certain statements made earlier would not affect the right of the defendant if such amendment is permitted. It is also contended by the learned Counsel appearing for the petitioner by placing reliance on the decision in the case of Usha Devi Vs. Jyoti Sahay and Another, AIR 1983 SC 462 wherein the Hon'ble Supreme Court has stated that with-drawing of certain statements made earlier would not affect the right of the defendant if such amendment is permitted. It is also contended by the learned Counsel appearing for the petitioner by placing reliance on the decision in the case of Usha Devi Vs. Rijwan Ahamd and Others, AIR 2008 SC 1147 that the Hon'ble Supreme Court has hold that the merit of the amendment sought to be made need not be looked into by the courts at the stage for considering the application and the merit of the amendment is hardly relevant factor. 6. On the contrary, Sri. Krishnakumar, learned Counsel for the respondent would contend that the said decision would not be relevant to the present context in as much as a reading of the entire plaint would indicate that the plaintiff was before the Court below with a specific case with regard to the manner in which the construction has been put up by the plaintiff and the steps taken by the plaintiff in that regard and in that context he relied on the said book which was marked as Ext.P-18. According to the learned Counsel, in a suit for specific performance this is a relevant fact in as much as the earlier claim if any resiled by the defendant would affect the case of the defendant while contending before the court below that the exercise of discretion in favour of the plaintiff is not warranted in a case where there is variance between pleading and proof. Therefore it is contended by the learned Counsel that a statement which had been made in the plaint earlier has enured to the benefit of the defendant and by amendment if the same is resiled the contention available to the defendant with regard to variance between pleading and proof would be defeated and therefore the amendment should not be permitted. The trial court has rightly rejected the application according to the learned Counsel. 7. In the light of the rival contentions urged by the learned Counsel, I have noticed the plaint which has been produced along with the petition and I have been taken through the averments made by both the learned Counsel. The trial court has rightly rejected the application according to the learned Counsel. 7. In the light of the rival contentions urged by the learned Counsel, I have noticed the plaint which has been produced along with the petition and I have been taken through the averments made by both the learned Counsel. The proposed amendment and the averments made in the affidavit accompanying the application filed seeking amendment of the plaint was also referred to by the learned Counsel. It is no doubt true that as contended by the learned Counsel appearing for the respondent, the plaintiff has pleaded in the plaint that the construction was put up by the plaintiff after obtaining necessary approvals and contractor was also engaged by the plaintiff. After stating so, the plaintiff has stated that the accounts relating to such constructions has been maintained in a book and the entries in the said book is in the handwriting of the plaintiff. While seeking to amend that portion of the contention, in the affidavit accompanying the application it is stated that at the time of evidence while marking the said document it was noticed that it has been erroneously started in the plaint that the said handwriting is that of the plaintiff instead of stating that it is defendants handwriting. It is in that context amendment is sought to be made. 8. In the instant case, if the portion to be amended is to be seen, it is only relating to the handwriting which exists in the book which has been marked as Ext.P-18. Irrespective of the contention either in the plaint or in the written statement with regard to handwriting existing in the book, since there is dispute with regard to that aspect of the matter, the same would have to be proved before the trial court with regard to the nature of transaction and in that context the handwriting which is existing in the book. That apart, since the plaintiff has sought to content that amounts had been paid over to the defendant for the purpose of undertaking construction and the same has been indicated in the said book, this aspect of the matter also would have to be proved by the plaintiff, ultimately, if he has to succeed in the suit. That being the position. That being the position. I am of the view that merely because an amendment is prayed to the plaint stating that the handwriting found in Ext.P-18 is that of the defendant by resiling the statement which has been made in the plaint initially stating that handwriting is that of the plaintiff the same would not materially alter the case nor would it in any way affect the right which has accrued to the defendant, though no doubt as contended by the learned Counsel for the respondent, would have been an issue to be argued to state that there is variance between the pleading and proof. At the same time it also cannot be lost sight of that it would have been possible for the plaintiff to explain this aspect in the evidence and further prove that it is the handwriting of the defendant by securing expert opinion or in such ors manner. Therefore merely amending and then stating that the handwriting is that of the defendant cannot be construed as any right accrued to the defendant being taken away. The entire case put forth by the plaintiff in the background of the defence taken by the defendant would have to be ultimately considered by the trial court while coming to a conclusion as to whether a case has been made out by the plaintiff seeking for specific performance. Even thereafter, the way in which the trial court should exercise its discretion in the matter is an issue which would have to be considered by the trial court either in existence of the original plaint or amended plaint even if amendment is allowed. 9. Therefore, keeping all these aspects in view and since I have already noticed that the trial court has considered the decisions cited by the learned Counsel for the plaintiff and in addition noticing the decision of the Hon'ble Supreme Court cited before me, I am of the view that the trial court in the present fact and circumstances of the case was not justified in rejecting the application in I.A.14 seeking amendment of the plaint. Hence, the order dated 6.7.2007 cannot be sustained and the same is accordingly quashed. Consequently, I.A. No. 14 filed in O.S. No. 1083/2000 stands allowed. The trial court shall permit the plaintiff to amend the plaint as stated in I.A. No. 14. Hence, the order dated 6.7.2007 cannot be sustained and the same is accordingly quashed. Consequently, I.A. No. 14 filed in O.S. No. 1083/2000 stands allowed. The trial court shall permit the plaintiff to amend the plaint as stated in I.A. No. 14. Consequent on such amendment if the defendant chooses to file any additional written statement, it would be open for the defendant to file written statement in thesis regard. 10. Having said this, one other aspect of the matter which cannot be lost sight of is that the application for amendment was made with some delay and therefore to the said extent some inconvenience has been caused to the defendant which would have to be compensated in terms of money by payment of cost for allowing the application. Hence the petitioner herein shall pay a sum of Rs. 2000/- as costs to the respondent herein before the trial court. The payment of cost is a precondition for carrying out the amendment. 11. At this juncture both the learned Counsel state that since the suit is of the year 2000 there may be a direction to the trial Court to dispose of the suit itself as expeditiously as possible. In that view of the matter, the parties shall co-operate with the trial court and the trial Court shall dispose of the suit as expeditiously as possible. 12. With the above observations and directions, the petition stands disposed of. No costs in this petition.