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2015 DIGILAW 1154 (KAR)

Venkatalakshmi v. Padma

2015-10-01

A.N.VENUGOPALA GOWDA

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ORDER : A.N. Venugopal Gowda, J. 1. The respondent Nos. 1 to 3, as the plaintiffs, have filed O.S. No. 2422/2006, in the City Civil Court, Bengaluru, to pass a decree of partition and separate possession against the petitioners and respondent Nos. 4 and 5 herein/defendants. Written statement contesting the suit having been filed, after raising of issues, trial has commenced. At the stage of cross-examination of PW. 2, I.A. No. 5 was filed by defendant Nos. 1 to 9, under Order 6, Rule 17 r/w Section 151, CPC, to permit the amendment of the written statement in the manner proposed. Said application was opposed by the plaintiffs. The learned Trial Judge finding the application to have been filed after a long lapse of time of filing the written statement and after commencement of trial and being of the view that the proposed amendment introduces a new case, contradicting and nullifying the plea taken in the original written statement, and is likely to cause prejudice to the plaintiffs, has passed an order of dismissal on 21.02.2014 vide Annexure-F. This writ petition was filed to set aside the said order and permit the amendment of the written statement, as proposed in I.A. No. 5. Heard the learned advocates appearing for the parties and perused the petition. 2. Written statement was sought to be amended by incorporating an additional pleading to the following effect: "Sri. H. Honappa has executed the will dated 15-06-2000 by bequeathing the plaint schedule "A" and "B" properties in favour of the first, fourth, fifth, seventh and eighth defendants, as such they are succeeded to the plaint schedule "A" and "B" properties according to the will executed by Sri. H. Honappa. The said will got to the knowledge of these defendants only when Sri. P. Krishnappa, son of Sri. Papaiah told about the execution of the said will to these defendants somewhere in the month of May, 2013. As such the plaintiffs do not have any right, title and interest over the plaint schedule "A" and "B" properties." 3. Proposed amendment was sought to be incorporated with reference to an alleged Will dated 15.06.2000, said to have been executed by H. Honappa, S/o. Late Hanumantha Rao, bequeathing his estate. 4. As such the plaintiffs do not have any right, title and interest over the plaint schedule "A" and "B" properties." 3. Proposed amendment was sought to be incorporated with reference to an alleged Will dated 15.06.2000, said to have been executed by H. Honappa, S/o. Late Hanumantha Rao, bequeathing his estate. 4. It is trite that insofar as permitting the amendment of written statement is concerned, the rigid principles which are ordinarily applied in the case of amendment of the plaint and not applied. The defendant is entitled to take alternate plea, without resiling from any positive admission in the pleading filed earlier. 5. No doubt, I.A. No. 5 was filed after commencement of the trial and hence, the proviso under Rule 17 of Order 6 is attracted. Hence, the applicants/defendants should show diligence. However, if the proposed amendment is found to be necessary to decide the real question in controversy and minimize the litigation between the parties, the same can be allowed. In Rajesh Kumar Aggarwal and others v. K.K. Modi and others, (2006) 4 SCC 385 : ( AIR 2006 SC 1647 ), while emphasizing on the underlined principles of Order 6, Rule 17, CPC, it has been held as follows: "15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The provision enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI, Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. 17. Order VI, Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. *** *** *** 20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." 6. In Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626 : (AIR 2009 SC (Supp) 2671), the Trial Court had rejected the application for amendment of the plaint mainly on the ground that the prayer for amendment was a belated one. In revision, the order was affirmed inter alia holding that not only the prayer for amendment of the plaint was belated one, but also that the prayer, if allowed, shall change the nature and character of the suit. The said orders when assailed before the Apex Court, it was held as follows: "5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6, Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. It is well settled that under Order 6, Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. 6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712 ) : ( AIR 2000 SC 614 ). Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed." 7. Keeping in view the well settled principles of law which govern the amendment of the written statement, learned Trial Judge has committed material error and illegality in holding that the proposed amendment, introduces a new case and contradicts the plea taken in the original written statement. 8. The prejudice, likely to be caused to the plaintiffs on account of the delay and also the reopening of the case can be compensated appropriately. Said aspect has not been kept in view while passing the impugned order. 9. The merit of the proposed amendment cannot be a deciding factor at this stage. It is for the defendant Nos. 1 to 9 to establish the lawful execution of the alleged will. The burden of proof with regard to the due execution of the Will of H. Honappa is required to be placed on the defendants. In the circumstances, the petitioners can be permitted to amend the written statement, in the manner proposed by subjecting them to terms. 1 to 9 to establish the lawful execution of the alleged will. The burden of proof with regard to the due execution of the Will of H. Honappa is required to be placed on the defendants. In the circumstances, the petitioners can be permitted to amend the written statement, in the manner proposed by subjecting them to terms. The impugned order being not in consonance with the settled principles of law in catena of decisions of the Apex Court, cannot be sustained. In the result, writ petition is allowed and the impugned order is set aside. I.A. No. 5 filed in the Trial Court is allowed subject to the defendant Nos. 1 to 9 paying cost of Rs. 10,000/- to the plaintiffs on the next hearing date of the suit. The cost be paid/deposited and the proposed amendment incorporated in the written statement within a period of 15 days from the date a copy of this order becomes available. It is open to the plaintiffs to recall PWs. 1 and 2 and adduce further evidence. The suit having been instituted in the year 2006 and the first plaintiff being a widow and the 3rd plaintiff being a minor, trial of the suit be expedited. Additional issue casting the burden of proof with regard to the execution of the alleged Will be placed on the defendants and the case proceeded further. Plaintiffs shall close their side of evidence on or before 08.01.2016. The defendants shall adduce and complete their side of evidence within a period of three months from the date the plaintiffs close their case. Suit be decided with expedition and before 31.07.2016.