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2016 DIGILAW 763 (KAR)

Padma v. S. M. Gopal

2016-10-18

B.VEERAPPA

body2016
ORDER : B. Veerappa, J. The first defendant has filed the present writ petition against the order dated 23.07.2016 passed in O.S. No.46/2010 on the file of the Addl. Civil Judge and JMFC, Tiptur, on I.A.No. 14 filed under Order 6, Rule 17 of Code of Civil Procedure, allowing the application filed by the plaintiff on payment of cost of Rs.600/-. 2. The first respondent herein who is the plaintiff before the Trial Court, filed suit in O.S.No.46/2010 for declaration of title in respect of 'A' schedule property (ABCD as per the rough sketch) and for delivery of vacant possession which is encroached measuring to an extent of East-West 15 feet, North - South 48 feet on the eastern side of the 'A' schedule property which is mentioned as B schedule (i.e., EBCF as per the plaint rough sketch) or in the alternative for mandatory injunction demolishing the entire structure put up by the 1st defendant in the encroached portion of the 'B' schedule property and give possession of vacant site as it was earlier before construction, contending that site bearing Sy.No.68, Southern Extension, Harijan Colony, Tiptur town, measuring East West 36 feet, North South 48 feet, originally belonged to Tiptur Town Municipal Council and the same was granted to one Chikkaiah Hesarahally under a grant certificate dated 27.04.1959 and the said Chikkaiah Hesarahally constructed a house after obtaining licence and plan approval from the then Town Municipal Council, Tiptur. After the death of said Chikkaiah Hesarahally, his wife sold the said property in favour of one G. Maribasavachar, Son of Gurulingachar, under a registered sale deed dated 09.03.1966 and the said Maribasavachar was in possession of the property. After the death of said Maribasavachar, his wife and children sold the said property in favour of one S.M. Gopal, the plaintiff, under a registered sale deed dated 05.11.1990. After the sale, katha was changed in the name of the plaintiff and the plaintiff is in possession and enjoyment of the property and has paid upto date tax to the City Municipal Council, Tiptur. 3. It is the further case of the plaintiff that there was a small space on the eastern side of 'A' schedule property which belongs to the Municipality. 3. It is the further case of the plaintiff that there was a small space on the eastern side of 'A' schedule property which belongs to the Municipality. The 1st defendant, by taking advantage of the fact that the plaintiff is working somewhere, colluded with the officials of the Municipality and constructed a building in the small space belonging to the Municipality by encroaching upon the property of the plaintiff which is mentioned as 'B' schedule property i.e., EBCF as per the plaint rough sketch and the said construction is done by the 1st defendant fraudulently about two years back. The 1st defendant has no manner of right, title, interest in respect of the encroached 'B' schedule property and is trying to put up first floor on the existing ground floor without valid building licence or valid permission from the 2nd defendant, etc. and therefore, filed suit for the reliefs sought for therein. 4. The 1st defendant/petitioner herein filed written statement denying the averments made in paragraph-2 of the plaint and denied that the site bearing Sy.No.68, Southern Extension, Harijan Colony, Tiptur Town, measuring East-West 36 ft. and North-South 48 ft. originally belonged to Tiptur Town Municipal Council and it was contended that the suit property is bearing site No.68 and measures East to West 48 feet and North to South 36 feet, and the same was granted to one Chikkaiah Hesarahally under a grant certificate dated 27.04.1959. It was denied that the said Chikkaiah Hesarahalli constructed a house after obtaining licence and approved plan from the Town Municipal Council. It was further denied that G. Maribasavachar and his wife and children were in possession of the property and after the death of Maribasavachar, his wife sold the property in favour of the plaintiff under a registered sale deed dated 05.11.1990. The averment made in the plaint that the plaintiff is paying tax to CMC after change of katha in his name was also denied. 5. It is the specific case of the petitioner/1st defendant that she owned house property bearing Municipal Katha No.306/226 measuring East to West 24 ft. and North to South 21 ft. on the eastern side of the suit property. The said house was originally belonging to one Kanthamani, Wife of Rudramurthy alias Raju. 5. It is the specific case of the petitioner/1st defendant that she owned house property bearing Municipal Katha No.306/226 measuring East to West 24 ft. and North to South 21 ft. on the eastern side of the suit property. The said house was originally belonging to one Kanthamani, Wife of Rudramurthy alias Raju. The said Kanthamani, under registered sale deed dated 07.09.2000 sold the said house property to one R. Narasimhachari, who is none other than the husband of the 1st defendant. The katha and other municipal documents were changed in the name of R. Narasimhachari and after his death, the katha and other municipal documents have been changed in the name of the 1st defendant and her son and they are in peaceful possession and enjoyment of the property by paying upto date tax to the City Municipal Council, Tiptur. It was contended that the original owner while constructing the house had left 3 feet space on the western side, for conservancy. 6. The 2nd defendant/Municipality filed written statement, denied the plaint averments. It was contended that there is no conservancy in between the property of the plaintiff and the 1st defendant and that the plaintiff is intending to encroach the property of the 1st defendant for wrongful gain, etc. 7. When the matter was posted for defendants' cross-examination, the plaintiff filed I.A.No.14/2014 under Order 6, Rule 17 r/w Section 151 of the Code of Civil Procedure to amend the plaint. It was prayed that : (a) 'Sy.No.68' mentioned in paragraph 2 of the plaint was to be deleted and 'Site No.68' was to be added; (b) In the 'A' schedule, after the words 'Site No.68', "measuring east-west 36 feet north-south 48 feet bounded on the east by : House of H.R. Lakshmana" is to be deleted and "measuring east-west 48 feet and north sought 36 feet and bounded on east by : Galli and Municipal road" is to be added; (c) In 'B' schedule, after words 'encroached portion' "measuring east-west 15 feet north-south 48 feet' is to be deleted and measuring east-west 15 feet and north-south 36 feet" is to be added. In the affidavit accompanying the application, it was stated that, by mistake in para No.2 of the plaint the Sy. No.68 is mentioned instead of site No.68 and that it is only a typographical error. In the affidavit accompanying the application, it was stated that, by mistake in para No.2 of the plaint the Sy. No.68 is mentioned instead of site No.68 and that it is only a typographical error. The measurements mentioned in 'A' and 'B' schedule has been mentioned by oversight and the measurement is required to be corrected as per the sale deed executed by the vendor. The schedule mentioned in B schedule eastern boundary is wrongly mentioned by oversight and same is required to be corrected, since the vendors of the plaintiff have executed rectification deed in respect of the same. 8. The said application I.A.No.14 was opposed by the present petitioner/1st defendant, by filing objections contending that the matter has already been posted for cross-examination of D.W. 1 and at that stage, application is not maintainable. There is absolutely no necessity to amend the plaint and the case can be proceeded without amendment, the plaintiff has not stated in his affidavit as to why the proposed amendment is required and what purpose will be served if the amendment is made and therefore, sought for dismissal of the application. The Municipality has not filed any objections to the application I.A.No.14. 9. Considering the averments made in the application and the objections filed by the 1st defendant, the Trial Court proceeded to allow the application with cost of Rs. 600/-, by the impugned order. Hence, the present writ petition is filed. 10. I have heard the learned counsel for the petitioner. 11. Sri. Vinaya Keerthy M. learned counsel for the petitioner vehemently contended that the impugned order passed by the Trial Court allowing the application LA. 14 is contrary to the admissions made by D.W. 1 in her cross-examination. She admitted that on the eastern side of the suit property, her house is existing. By way of amendment, plaintiff/1st respondent wants to take away the admission which is impermissible. He further contended that when the matter is posted for cross-examination of D.W. 1, application for amendment is filed which is not permissible in view of the proviso to Order 6, Rule 17 of CPC. Hence, he sought to set-aside the order passed by the Trial Court. 12. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record. 13. Hence, he sought to set-aside the order passed by the Trial Court. 12. I have given my anxious consideration to the arguments advanced by the learned counsel for the petitioner and perused the entire material on record. 13. It is not in dispute that the plaintiff filed suit for declaration based on the registered sale deed dated 05.11.1990 and is in possession and enjoyment of the same. It is the specific case of the plaintiff that small space on the eastern side of the 'A' schedule property belongs to the Municipality. The 1st defendant by taking advantage of the fact that the plaintiff is working somewhere, has constructed a building in the small space belonging to Municipality and also encroached upon the property of the plaintiff which is mentioned as 'B' schedule property, more fully described in the sketch as EBCF. It is the specific defence of the 1st defendant that she is the owner of the property bearing municipal katha No.306/226 measuring east to west 24 ft. and north to south 21 ft. on the eastern side of the suit property and it is her case that the suit property originally belonged to the municipality. It is not in dispute that the same was granted in favour of one Chikkaiah Hesarahalli on 27.04.1959. It is the specific case of the plaintiff that G. Maribasavachari purchased the said property from Chikkaiah Hesarahalli on 09.03.1966 and thereafter, the plaintiff purchased the said property under registered sale deed dated 05.11.1990. The municipality has filed written statement denying the plaint averments and has not disputed the fact that the property was granted to Chikkaiah Hesarahalli on 27.04.1959 and also not disputed that the plaintiff purchased the property under the registered sale deed dated 05.11.1990. 14. It is the specific case of the plaintiff that though in paragraph 2 of the plaint it is mentioned as Sy.No.68 by oversight and it is a typographical error, in the schedule it is mentioned as site number and measurement was wrongly given. By way of amendment, he wanted 'survey number' as 'site number' and the measurement in terms of Ex.P.4/sale deed and Ex.P.13/rectification deed. By way of amendment, he wanted 'survey number' as 'site number' and the measurement in terms of Ex.P.4/sale deed and Ex.P.13/rectification deed. Though a contention was raised by the learned counsel for the petitioner that the amendment will take away the admission made by D.W.1, cannot be accepted for the simple reason that the amendment sought is based on the registered sale deed, Ex.P.4 and the rectification deed, Ex.P.13. It is for the plaintiff to establish his case independently, based on oral and documentary evidence to be produced and adduced. When the defendant Nos. 1 and 2 have not disputed the title in respect of suit schedule property and when it is their case that the defendant's property is entirely different, no prejudice would be caused to the 1st defendant. Admittedly, municipality has not filed any objection to the application I.A.No.14. With regard to the contention of delay, no doubt, the application is filed by the plaintiff after the matter was posted for cross-examination of DW-1, but the fact remains that he sought amendment based on the factual aspects, in terms of the registered sale deed and rectification deed. That cannot be rejected mainly on the ground of delay, since the controversy has to be decided. 15. The Hon'ble Supreme Court while considering Order 6, Rule 17 of the Code of Civil Procedure in the case of Surender Kumar Sharma v. Makhan Singh reported in (2009) 10 SCC 626 has held as under : 5. As noted herein earlier, 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 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 cost or otherwise. [See B.K.N. Pillai v. P. Pillai and another [ AIR 2000 SC 614 at Page 616]. 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. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. 8. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed. 8. For the reasons aforesaid, the orders of the High Court as well as of the trial Court are set aside. The application for amendment of the plaint filed by the appellant stands allowed, subject to the payment of costs of Rs. 10,000/- to the opposite party, which shall be deposited/paid within a period of six weeks from the date of supply of a copy of this order. In default of deposit/payment of such costs, the application for amendment of the plaint shall stand rejected." 16. In view of the aforesaid reasons, both the contentions raised by the learned counsel for the petitioner is devoid of merit. The petitioner has not made out any case for interference. 17. The Trial Court, considering the entire material on record, has recorded a finding that, "on perusal of the pleadings and documents produced by the plaintiff it is clearly noted that the measurement and boundaries mentioned in the plaint only due to the typographical errors. As per the settled principle of law an amendment application may be allowed at any stage before pronouncement of judgment, provided the proposed amendment shall not change the nature of the suit. In the present case, on perusal of the proposed amendment it is clear that the amendment will not change the nature of the suit or not introduce new cause of action in the suit. But the plaintiff delayed in filing the application has to be condoned imposing cost." Accordingly, allowed the application imposing cost of Rs. 600/-. Same is in accordance with law. The petitioner has not made out any case for interference in exercise of writ jurisdiction under Article 227 of the Constitution of India. Accordingly, writ petition is dismissed. 18. It is made clear that, it is open for the 1st defendant to file additional written statement, if any, the Trial Court shall decide the suit independently without being influenced by any of the observations made by this court.