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2016 DIGILAW 13 (KAR)

Ramaswamy Reddy v. Yellamma

2016-01-05

R.B.BUDIHAL

body2016
ORDER : Budihal R.B., J. 1. Heard learned counsel appearing for the petitioner-plaintiff and the learned counsel for respondents-defendants. 2. Learned counsel for the petitioner-plaintiff submitted that the plaintiff has filed the bare suit for injunction against the respondents-defendants. When suit summons were issued, none of the defendants appeared in the matter and subsequently, they appeared and filed written statement denying execution of the agreement of sale. The learned counsel submitted that, that was the first time it came to the notice of the plaintiff about execution of the agreement of sale. Immediately, the plaintiff moved an application for amendment of plaint and sought for specific performance of agreement of sale. The trial Court rejected the application holding that if the proposed amendment is allowed, it will change the nature of the suit. In this connection, the observation made by the trial Court is not correct. With regard to delay in filing the said application is concerned, the learned Counsel drew the attention of this Court, para no. 8(c) of the application for amendment and submitted that the application was wrongly rejected. Hence, the learned counsel submitted that the writ petition be allowed by setting aside the order of the trial Court and allowing the application to add the relief column. In support of his contentions, the learned counsel relied upon the decision of the Hon'ble Supreme Court in case of Sampath Kumar v. Ayyakannu and another, reported in AIR 2002 SC 3369 . 3. Per contra, learned counsel for respondents-defendants during the course of the arguments made submission that the application was rejected not only on the ground that the proposed amendment is going to change the nature of the suit but also on the delay in filing the said application. The learned counsel submitted that the date of alleged agreement of sale was dated 17.11.1993 and the application was filed after lapse of nearly 20 years. The said fact was taken note of by the trial Court and even on that ground also, the trial Court has rejected the said application. The reasons adopted by the trial Court in rejecting the application are sound and no illegality has been committed. Hence, requested that the writ petition may be rejected. 4. The said fact was taken note of by the trial Court and even on that ground also, the trial Court has rejected the said application. The reasons adopted by the trial Court in rejecting the application are sound and no illegality has been committed. Hence, requested that the writ petition may be rejected. 4. I have perused the grounds urged in the writ petition and also the order dated 16.12.2015 passed by the trial Court on I.A. 14 which is filed by plaintiff under Order 6, Rule 17 of CPC seeking to amend the relief column as well as the pleadings in the suit. The trial Court after considering the merits involved in the application ultimately came to the conclusion that the suit was initially filed seeking bare injunction against the respondents and subsequently, the plaintiff by filing such application sought to amend reliefs for specific performance. Therefore, it changed the nature of original suit and such type of amendment cannot be allowed. According to the trial Court, there is delay in filing the said application. On these two grounds, the trial Court has rejected the said application. 5. I have also perused the decision relied upon by the learned counsel for the petitioner, wherein at para no. 7 of the said judgment, the Hon'ble Apex Court has held as under: "In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reason which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings." 6. Looking to the principles enunciated in the said decision, it has been observed that such type of amendment can be allowed by the Court to avoid multiplicity of proceedings. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings." 6. Looking to the principles enunciated in the said decision, it has been observed that such type of amendment can be allowed by the Court to avoid multiplicity of proceedings. In the present case, so far as amendment of relief column is concerned, pleadings are already stated by the plaintiff. Only the relief column, he has sought for amendment. While deciding the matter, the Court has to go through the entire pleadings and not the only relief column that has been claimed in the suit. 7. Regarding limitation aspect is concerned, learned counsel for the petitioner has rightly submitted that refusal in this case is only when defendants subsequently appeared in the matter and filed written statement on 11.4.2012. Till then, there was no refusal as such. If this date is taken, with regard to refusal for agreement of sale, amendment application was immediately filed by the plaintiff in the said suit. Limitation issue will have to be considered in the suit while trying the said suit. The respondents can take such contention and file additional written statement raising such contention. Therefore, considering all these aspects, rejection of application by the trial Court is not in accordance with law. 8. Hence, I pass the following order: Writ petition is allowed. The order dated 16.12.2015 passed by the trial Court on application I.A. No. 14 filed under Order 6, Rule 17 is set aside and the said application is allowed and the plaintiff is permitted to carry out the amendment of the plaint before the trial Court. Petition allowed.