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2016 DIGILAW 140 (KAR)

Rangaswamaiah v. H. A. Shaikh Hussain

2016-02-09

R.B.BUDIHAL

body2016
ORDER : Budihal R.B., J. 1. Though the matter is listed in orders list, with the consent both sides it is taken up for final disposal. This petition is filed requesting the Court to set aside the order of the Trial Court dated 31-7-2015 passed on the amendment application in OS. No. 1046 of 2008. 2. Petitioner herein who is the plaintiff before the Trial Court filed the amendment application to amend the pleadings in the plaint and also the relief column, which was opposed by the respondent/defendant by filing objection statement. After considering the merits of the application, the Trial Court has rejected the amendment application. Being aggrieved by the said order, petitioner is before this Court. 3. Heard the arguments of learned Counsel for the petitioner/plaintiff and also the learned Counsel for the respondent/defendant. 4. Learned Counsel for the petitioner/plaintiff during the course of his arguments submitted that the suit was filed in the year 2008 seeking specific performance of the agreement of sale executed by the respondent/defendant in favour of the plaintiff. During the course of cross-examination of D.W. 1, when D.W. 1 produced the notice copy then only plaintiff came to know that certain material facts were not pleaded in the plaint and relief was also not claimed in the said suit. Hence, thereafter plaintiff made an application under Order 6, Rule 17 read with Section 151 of Civil Procedure Code, 1908 seeking amendment of the pleadings and also the prayer column, which has been wrongly rejected by the Trial Court only on the ground of delay and also holding that plaintiff is not diligent in pursuing the matter. In this connection, learned Counsel drew the attention of this Court to Section 22 of the Specific Relief Act, 1963, which reads as under: "22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for.-- (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21." Accordingly, he has submitted that as per Section 22(2) of the said Act, plaintiff can seek amendment at any stage of the proceedings. He has also submitted that the rejection of the said application is illegal and not sustainable in law and that the said amendment will not change the nature of the suit and will not cause any sort of prejudice to the other side. Learned Counsel has also relied upon the decision in the case of Abdul Rehman and Another v. Mohd. Ruldu and Others, (2012) 11 SCC 341 , wherein the Hon'ble Apex Court laid down the preposition regarding amendment of pleadings as under: "A. Civil Procedure Code, 1908, Order 6, Rule 17, proviso (as amended by CPC Amendment Act 22 of 2002) and Order 7, Rules 1and 7 - Object and purpose of Order 6, Rule 17, proviso-Amendment of plaint after commencement of trial - When permissible-Matters to be considered - Relief claimed by way of amendment if time-barred. Held, if such amendment application is made after commencement of trial, Court has to arrive at a conclusion that in-spite of due diligence, plaintiff could not have raised matter before commencement of trial - Order 6, Rule 17, proviso to some extent curtails absolute discretion to allow amendment at any stage-Object of Order 6, Rule 17 that Courts should try merits of case that comes before them and should, consequently, allow all amendments that may be necessary for determining real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side - Main purpose of allowing amendment is to minimise litigation and plea that relief sought by way of amendment was barred by time is to be considered in light of facts and circumstances of each case." Hence, it is submitted to set aside the order of the Trial Court and to allow the amendment application. 5. Per contra, learned Counsel for the respondent/defendant during the course of his arguments submitted that the main suit itself is barred by law of limitation. Hence, there is no question of allowing the amendment application in this case. Learned Counsel submitted that the Trial Court has properly appreciated the amendment application and rightly rejected the claim of the plaintiff made in the said application. Hence, there are no grounds to interfere into the order of the Trial Court. Accordingly, he has submitted to reject the said application. 6. I have perused the grounds urged in the writ petition, copy of the plaint, written statement, the application filed seeking amendment of the pleadings and the objection statement filed to the said application and also the impugned order dated 31-7-2015 of the Trial Court on the amendment application. 7. Admittedly, plaintiff filed the suit against the respondent herein seeking specific performance of the agreement of sale dated 4-1-2003 entered into between them for sale of suit schedule property in favour of the plaintiff for Rs. 2,50,000/-. The plaintiff has filed the said suit in the year 2008. The present amendment application was filed in the year 2015 i.e., after lapse of 7 years. 2,50,000/-. The plaintiff has filed the said suit in the year 2008. The present amendment application was filed in the year 2015 i.e., after lapse of 7 years. It is the contention of the respondent that after the evidence of the plaintiff, defendant's side evidence has commenced wherein D.W. 1 was examined and partly cross-examined and when the matter was posted for further cross-examination of D.W. 1, at that stage, plaintiff has filed the present application. 8. Looking to the affidavit supporting the application it is stated by the plaintiff that defendant has produced the legal notice dated 4-6-2007 got issued through the previous Advocate of the plaintiff which was marked as Ex. D. 6. After verifying the said notice, he recollected the previous happenings between himself and his previous Advocate, as such, he could not plead the same as he was kept in dark with regard to those aspects. The content of the affidavit shows that the plaintiff was kept in dark by the Counsel for the plaintiff himself about the facts. Therefore, he has sought to allow the amendment application. The legal notice was issued by the Counsel for the plaintiff to the defendant as per the instructions of the plaintiff. Therefore, the contents of the said legal notice are binding on the plaintiff. I have also perused the decision relied upon by the learned Counsel for the petitioner/plaintiff, so also, Section 22 of the Specific Relief Act. Looking to the facts pleaded in the case on hand, plaintiff was not able to make out a case that his case comes under the proviso to section Order 6, Rule 17 of CPC. Therefore, the Trial Court appreciating these material facts has ultimately come to the conclusion that there is no satisfactory explanation about the reasons pleaded in the application and has rejected the said application. I do not find any illegality in the order of the Trial Court in rejecting the amendment application nor there is any illegality in coming to such conclusion. Further, the facts and circumstances of the present case and of the reported decision relied upon by the learned Counsel for the petitioner are not one and the same and cannot be made applicable to the case on hand. Hence, there is no merit in the writ petition. Accordingly, writ petition is hereby rejected. Further, the facts and circumstances of the present case and of the reported decision relied upon by the learned Counsel for the petitioner are not one and the same and cannot be made applicable to the case on hand. Hence, there is no merit in the writ petition. Accordingly, writ petition is hereby rejected. In view of the disposal of the writ petition, I.A. No. 1 of 2015 filed for vacating stay does not survive for consideration. Hence, the same is hereby disposed of.