Research › Search › Judgment

Karnataka High Court · body

2015 DIGILAW 545 (KAR)

DHANAPAL APPANNA PHAKIRE v. MALUTAI

2015-06-02

B.VEERAPPA

body2015
ORDER : The petitioner who is the plaintiff filed the above writ petition challenging the order dated 26.09.2014 dismissing I.A.3 filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure. 2. It is the case of the plaintiffs/petitioner that they are the agriculturists and they own and possess of agricultural land within the limits of the Giragaon village in Chikodi Taluk. The defendants have succeeded to the suit schedule property as owners after the death of Appasaheb Balu Ghorpade. During the lifetime of Appasaheb Balu Ghorpade he had expressed his willingness to sell the suit property for his family necessity. After the death of Appasaheb Balu Ghorpade, plaintiffs through the elders discussed regarding the transaction of sale of the suit property on 30.08.2010. In the presence of witnesses, plaintiffs and deceased Appasaheb Balu Ghorpade have agreed to enter into agreement of sale in respect of suit property. Accordingly, deceased Appasaheb Balu Ghorpade executed registered agreement of sale before the SubRegistrar, Chikkodi on 30.08.2010 for a total sale consideration of Rs.30,000/and on the very day of agreement plaintiffs paid an amount of Rs.27,000/as earnest money to Appasaheb Balu Ghorpade. The receipt of said amount was acknowledged by deceased Appasaheb Balu Ghorpade by execution of registered agreement of sale. 3. The petitioners further contended that after the death of Appasaheb Balu Ghorpade, plaintiffs approached defendants 1 and 2 with elders and requested them for execution of registered sale deed in terms of the agreement as executed by deceased Appasaheb Balu Ghorpade. The defendants expressed their willingness to execute the sale deed, but sought some time to execute the sale deed. Again in the year 2011, plaintiffs approached the defendants and sought for execution of sale deed after receiving the balance sale consideration. The defendants expressed their willingness to execute the sale deed, but for the reasons best known to defendants, postponed the performance of their part of contract. Therefore, the plaintiffs got issued a legal notice to defendants in the month of October 2011 calling upon them to execute the sale deed and the defendants replied the notice only on 28.11.2011. Therefore, plaintiffs were constrained to file suit for specific performance of contract directing the defendants to execute the sale deed in terms of the registered agreement of sale executed by deceased Appasaheb Balu Ghorpade on 30.08.2010. 4. Therefore, plaintiffs were constrained to file suit for specific performance of contract directing the defendants to execute the sale deed in terms of the registered agreement of sale executed by deceased Appasaheb Balu Ghorpade on 30.08.2010. 4. The defendants filed their written statement on 5.10.2012 and denied the entire plaint averments and contended that the plaintiffs taking advantage of the fact that Appasaheb Balu Ghorpade was addicted to drinks and when he was in an intoxicated state of mind plaintiffs got executed the alleged agreement of sale by him and same is challenged and to safeguard the other property from the clutches of the plaintiffs, filed a suit for partition and wherein Appasaheb Balu Ghorpade has been allotted 0.29 guntas and in respect of that portion again the plaintiffs got the present alleged agreement of sale created with an imagination, which is not binding on the deceased Appasaheb Balu Ghorpade and also on the present plaintiffs, etc. 5. When the matter was posted for further crossexamination of plaintiff, plaintiff filed an application under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure, to amend the plaint by deleting the figure ‘3’ in the word ‘Acr3’ in Para1, line 3 of the plaint, and in the suit Schedule‘A’ the words “to North: Agriculture land of Defendants” be deleted and in its place “to North: Agriculture land of Mahadev Pharale” is to be inserted. It is contended that the plaintiffs have filed suit for specific performance of contract in respect of suit schedule property. At the time of filing suit due to clerical mistake in the plaint, the total extent of land was wrongly stated as “14 Acr3 15 gunta” instead of “14 Acre 15 guntas” in line3 of para1 of the plaint and in the ScheduleA to the plaint it is wrongly stated as “to North:Agriculture land of Defendants” instead of “to North: Agriculture land of Mahadev Pharale”. Therefore, he sought for amendment of pleadings by filing an application. The said application was resisted by defendants by filing objections. 6. After considering the application and objections filed by the parties to the proceedings, the Trial Court passed the impugned order dated 26.9.2014 dismissing the said application with costs of Rs.200/. As against the said order the present writ petition is filed. 7. I have heard the learned counsel for the parties to the lis. 8. 6. After considering the application and objections filed by the parties to the proceedings, the Trial Court passed the impugned order dated 26.9.2014 dismissing the said application with costs of Rs.200/. As against the said order the present writ petition is filed. 7. I have heard the learned counsel for the parties to the lis. 8. Sri.M.G.Naganuri, learned counsel for the petitioner, contended that the impugned order passed at Annexure ‘F’ is contrary to the law, facts, procedure and materials on record and the amendment sought is only for correction of typographical mistakes i.e., removing the figure ‘3’ in line No.3 of para 1 of the plaint and northern boundary of suit property should be shown as land of ‘Mahadev Pharale’ instead of the land of defendants. The said proposed amendment is in accordance with the registered agreement of sale dated 30.08.2010 as per Ex.P1 and the proposed amendment neither changes the nature of the suit nor the reliefs claimed in it. Therefore, the Court below ought to have allowed the application. The trial court has committed an error in dismissing the application, ignoring the law of the land. The Courts should be more liberal in allowing the amendment. The plaintiffs did not seek to displace the original pleadings or to withdraw any admission. The amendment sought is only to correct typographical errors occurred while drafting the plaint and the suit is still at the preliminary stage, inasmuch as the plaintiffs have submitted their examinationinchief and the case is posted for further chief examination. Thus, the amendment application is filed at an earliest point of time for correction of typographical errors in the plaint. Therefore, the Court below ought to have allowed the amendment application. 9. Learned counsel for the petitioner has further contended that the Court below has committed a serious error in not referring to the series of judgments rendered by the Hon’ble Apex Court, wherein it has been held that while deciding the amendment application, the Court should not adopt a hypertechnical approach; liberal approach should be the general rule, particularly, in case where the other side can be compensated with costs. The amendements are allowed normally in the pleadings to avoid multiplicity of litigation. 10. The amendements are allowed normally in the pleadings to avoid multiplicity of litigation. 10. In the instant case, the amendment sought for by the petitioner is necessary to correct the typographical errors with regard to the figure ‘3’ and northern boundary in the suit schedule and the amendment sought in any way does not change the nature of the suit and in no way prejudice the defendants. Therefore, he sought to set aside the impugned order passed by the trial court. 11. Sri. G.I. Gachchinamath, learned counsel for respondent No.1, sought to justify the impugned order and contended that the application filed by the plaintiffs for amendment after commencement of trial is not permissible, in view of the amended provision of Order VI Rule 17 of CPC. Therefore, he sought to dismiss the writ petition. 12. I have given my thoughtful consideration to the arguments advanced by learned counsel for the parties and perused the entire material on record. 13. It is the specific case of the plaintiffs that the suit is filed for specific performance to enforce the registered agreement of sale dated 30.08.2010 and it is also the case of the plaintiffs that while drafting the plaint, at paragraph 1 in line No.3 instead of ‘14 acre 15 gunta’ it was wrongly typed as ‘14 acr3 15 gunta’. By way of amendment, the plaintiffs want to remove the figure ‘3’. The same is in consonance with the registered agreement of sale dated 30.08.2010. The agreement clearly depicts that the total measurement of land in Sy.No.5/1 is ‘14 acres 15 guntas’ and the schedule clearly depicts, the northern boundary is the land of one ‘Mahadevappa Pharale’. The amendment sought by the petitioner is in accordance with the registered document produced at Ex.P1 and in no way prejudice to the case of the defendants and ultimately, the Court has to pass the judgment and decree independently based on the oral and documentary evidence to be adduced by both parties. 14. The amendment sought by the petitioner is in accordance with the registered document produced at Ex.P1 and in no way prejudice to the case of the defendants and ultimately, the Court has to pass the judgment and decree independently based on the oral and documentary evidence to be adduced by both parties. 14. Coming to the impugned order, the learned Judge while passing the impugned order, has not assigned any reasons as to why the amendment is belated, except stating that in view of the amended provisions of Order VI Rule 17 of CPC, amendment of the plaint is not permissible and no other reasons are assigned and the impugned order passed by the trial court is not a speaking order and no valid reasons are assigned to reject the amendment application. 15. While considering the amended provisions of Order VI Rule 17 CPC, as amended by CPC amendment Act 22 of 2002, the Hon’ble Supreme Court has dealt with the object and purpose of Order VI Rule 17, in the case of ABDUL REHMAN AND ANOTHER Vs. MOHD. RULDU AND OTHERS, reported in (2012) 11 SCC 341 , wherein it has been held that 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 trial, in that event, the court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 16. In the present case, admittedly, the trial court has not recorded any finding, regarding due diligence of the plaintiffs in filing the application. The application for amendment is filed only for the correction of typographical errors creptin in the plaint as well as the schedule and the amendment sought is in terms of the registered agreement of sale, Ex.P1, executed by one Appasaba Balu Ghorpade. The defendants are the legal representatives of the deceased executant. The application for amendment is filed only for the correction of typographical errors creptin in the plaint as well as the schedule and the amendment sought is in terms of the registered agreement of sale, Ex.P1, executed by one Appasaba Balu Ghorpade. The defendants are the legal representatives of the deceased executant. The original provision of Order VI Rule 17 of CPC was deleted by amendment Act 46 of 1999, however, it was again resubstituted by Amendment Act 22 of 2002, but with an added proviso to the effect 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’. 17. The above amended proviso, to some extent, curtails the absolute discretion to allow the amendment at any stage. At present, if the application is filed after the 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 the Courts should try the merits of the case that come before them and should, consequently, allow all the 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. The Hon’ble Supreme Court, time and again, has held in a series of decisions that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The main purpose of allowing the amendment is to minimise 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 facts and circumstances of each case. In the present case, no such limitation arises. The amendment sought is only factually clerical mistake. As already stated above, the amendment sought is only in accordance with the registered agreement of sale, Ex.P.1. 18. It is also well settled that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial court cannot be sustained. 19. 18. It is also well settled that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial court cannot be sustained. 19. Admittedly, in the present case, the plaintiffs sought the relief based on the pleadings already pleaded. Except to correct the typographical errors, the amendment would not change the nature of the suit and in no way prejudice to the defendants. 20. The Hon’ble Supreme Court in the case of PANKAJA Vs. YELLAPPA reported in (2004) 6 SCC 415 : AIR 2004 SC 4102 , has held that if the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title. 21. In the present case, it is the definite case of the plaintiffs that he want to enforce the registered agreement of sale dated 30.08.2010 and the pleadings are in accordance with the contents of the said agreement; therefore, the proposed amendment to correct the typographical error are necessary for the purpose of determining real questions in controversy between the parties. Hence, it should be allowed. On that ground alone, the impugned order passed by the trial court cannot be sustained. 22. The Hon’ble Supreme Court in the case of SURENDER KUMAR SHARMA Vs. MAKHAN SINGH reported in (2009) 10 SCC 626 , i.e., after amendment to the provisions of the Order VI Rule 17 of CPC, has held that 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. 23. 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. 23. In the present case, the learned Civil Judge erred in not considering the fact that the application for amendment sought is only for correction of typographical errors crept in and the amendment sought is purely in consonance with the registered agreement of sale alleged to have been executed by the father of defendant No.2 and husband of defendant No.1. In view of the aforesaid reasons, the impugned order is liable to be quashed and IA No.III filed by the plaintiffs under Order VI Rule 17 read with Section 151 of CPC has to be allowed. 24. In the result, the writ petition is allowed. The impugned order passed by the trial court dated 26.09.2014 on I.A. No.III is set aside. I.A. No.III filed by the plaintiffs for amendment of the plaint, under Order VI Rule 17 read with Section 151 of CPC, is allowed. It is always open for the defendants to file additional written statement, if any. However, it is made it clear that the trial court shall proceed with the suit independently, without being influenced by any of the observations made during the course of this order.