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2015 DIGILAW 168 (KAR)

Lashwini v. H. Laxmi Narayan

2015-02-11

S.SUJATHA

body2015
Order S. Sujatha, J. 1. The order passed on I.A. No. 7 dated 10.10.2012 in O.S. No. 8/2009 on the file of the Addl. Civil Judge, Jr.Dvn., at Chintamani is challenged by the plaintiff in this petition. 2. For the sake of convenience, the parties herein are referred to as per their rank in the trial Court. 3. The plaintiffs filed O.S. No. 8/2009 before the Addl. Civil Judge, Jr.Dvn., at Chintamani for the partition and possession of suit schedule property and for consequential relief of declaration to the effect that sale deeds effected by the 1st defendant in favour of defendants 2 and 3 are not binding on them and for permanent injunction. The defendants contested the suit and filed the written statement. In the said suit proceedings, the plaintiffs filed IA 7 under Order VII Rule 17 CPC seeking amendment. The defendant objected the same and has filed statement of objections to the said I.A. After hearing the parties, the learned Civil Judge dismissed the I.A. filed by the plaintiffs against which plaintiffs have filed this writ petition. 4. Heard the learned counsel for the parties. 5. This is a suit for partition over the joint family properties of plaintiffs and defendant No. 1. The defendant No. 1 has executed a sale deed dated 09.06.2006 in favour of 2nd defendant clearly mentioning on the southern side of schedule that the plaintiffs ancestral burial ground with samadhis are located. The 2nd defendant executed a sale deed dated 23.07.2007 in favour of the 3rd defendant modifying the boundaries. On this ground it was contended by the learned counsel appearing for the plaintiffs that incorporating different boundaries in the sale deed dated 23.7.2007 executed by the 2nd defendant in favour of the 3rd defendant, defendants 2 and 3 are trying to demolish the samadis and tombs in the suit schedule property causing interference with the peaceful possession of plaintiffs. Now the amendment sought by the plaintiffs is for insertion of paragraph 3(a) after paragraph 3 and the prayer (aa) after prayer (a) and prayer (cc) after prayer (c) is for a declaration that the plaintiffs are having right, title and interest over 25 guntas of land as shown in item No. 5 of the suit schedule property which is their ancestral burial ground consisting of samadis and tombs of ancestors of the plaintiffs and the defendant Nos. 2 and 3 may be restrained from interference of peaceful possession and enjoyment of the pathway leading to samdis and tombs belonging to the plaintiffs. Admittedly, this application for amendment is filed before the commencement of trial. 6. Order VI Rule 17 of CPC reads as under: "17: Amendment of pleadings:--The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall 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 before the commencement of trial." 7. In the case of ABDUL REHMAN AND ANOTHER v. MOH. RULDU AND OTHERS reported in, (2012) 11 SCC 341 , the Apex Court has held as under: "10: Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order 6 Rule 17 which is as under: "17. Amendment of pleadings:--The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial". It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the court has to arrive at a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 11. If such application is made after the commencement of the trial, in that event, the court has to arrive at a conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. 11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that inspite of due diligence, it could not have been sought earlier. 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel v. Gattu Mahesh ( (2012) 2 SCC 300 ) and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. ( (2012)5 SCC 337 ). Keeping the above principles in mind, let us consider whether the appellants have made out a cause for amendment." 8. If the said parameters of law are applied to the present case, the points to be considered by this Court are whether the application filed by the plaintiff seeking for amendment of the plaint under Order VI Rule 17 of CPC is maintainable and has to be allowed? 9. If the said parameters of law are applied to the present case, the points to be considered by this Court are whether the application filed by the plaintiff seeking for amendment of the plaint under Order VI Rule 17 of CPC is maintainable and has to be allowed? 9. Order VI Rule 17 of CPC contemplates that this provision can be exercised at any stage of the proceedings by either party to alter or amend the pleadings. The factors that have to be borne in mind while adjudicating an application for amendment are: "(a) Whether the application filed by the party is bonafide? (b) If the application is allowed, whether it causes any injustice to the other side? (c) Is the amendment necessary for the purpose of determining real question in controversy between the parties?" 10. Keeping these factors in mind, if the application filed by the plaintiff is examined, the facts that the original sale deed dated 9.6.2006 executed by the 1st defendant in favour of the 2nd defendant and the subsequent sale deed dated 23.7.2007 executed by the 2nd defendant in favour of the 3rd defendant describing different boundaries of item No. 5 in the suit schedule property establishes that, there appears to be an obstruction caused to the plaintiffs to have an access to the property with the samadhis and tombs of their ancestors and it is also an allegation of the plaintiffs that defendants 2 and 3 are trying to demolish the samadhis and tombs of their ancestors situated in item No. 5 of the suit schedule properties and they are causing interference of the possession of the plaintiffs over the suit schedule property. In such circumstances, it is necessary that the amendment sought for by the plaintiffs is required to be allowed as the same shall not change the nature of the suit. The purport of allowing amendment at this stage is to ascertain the real question in controversy between the parties. It is settled law that the rule of amendment is a rule of justice, equity and good conscience. It is to avoid multiplicity of proceedings, the amendment application has to be construed liberally and cannot be rejected on hyper technicalities nor procedural aspects. The said application is also within time as provided under order VI Rule 17 CPC. 11. It is settled law that the rule of amendment is a rule of justice, equity and good conscience. It is to avoid multiplicity of proceedings, the amendment application has to be construed liberally and cannot be rejected on hyper technicalities nor procedural aspects. The said application is also within time as provided under order VI Rule 17 CPC. 11. The learned Civil Judge is carried away by the relationship between the plaintiffs and the 1st respondent ignoring the fact that the partition suit is filed between the members of the joint family. It is the misconception of the learned Civil Judge that the plaintiffs are claiming easmentary right to the western side of item No. 5 of the suit schedule properties and allowing an amendment application of this nature would amount to granting of writ and civil Court has no jurisdiction to grant such a relief. No such writ has been sought by the plaintiffs by seeking for an amendment of the suit schedule properties. It is only an inter se dispute between the parties to the suit. As such, the order passed by the trial Court is not sustainable. 12. I.A. is allowed with costs of Rs. 3000/- payable by the plaintiffs to the defendants. Accordingly, writ petition is allowed setting aside the impugned order dated 10.10.2012 in O.S. No. 8/2009 on the file of the Addl. Civil Judge, Jr.Dvn., at Chintamani. Application Allowed.