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2018 DIGILAW 648 (KAR)

Gopi Krishna Damani v. T. N. Narendra Reddy

2018-06-01

S.G.PANDIT

body2018
JUDGMENT : S.G. Pandit, J. Petitioners are the plaintiffs in O.S.No.7823/2007. They are before this Court under Article 227 of the Constitution of India challenging the order dated 05-04-2018 passed by the 11th Additional City Civil and Sessions Judge, Bengaluru on I.A. No.11 filed by the plaintiffs under Order 6 Rule 17 of CPC which was rejected by the trial Court. 2. Though the matter is listed for preliminary hearing, with the consent of learned counsel for both the parties, the matter is taken up for final disposal. 3. The brief facts of the case are that:- The plaintiffs filed suit in O.S.No.7823/2007 seeking for specific performance of the contract dated 31-10-1981. It is the case of the plaintiffs that during March 1982, the entire sale consideration was paid and the plaintiffs were put in possession of the suit schedule property. It is the contention of the plaintiffs that the defendant in his written statement had admitted the agreement and possession of the plaintiffs. But, later on it was the case of the defendant that the plaintiffs ceased to be in possession as they did not get the sale deed executed and hence, they became the tenants under him. 4. On issuance of summons in the said suit, the defendant appeared before the Court and filed written statement. 5. On completion of pleadings, the trial Court framed issues and at present the suit is at the stage of evidence of plaintiffs. At that stage, the plaintiffs has filed an application I.A. No. 11 under Order 6 Rule 17 of CPC for amendment of plaint by adding two paragraphs to the plaint averments. The said application was opposed by the defendant by filing objections contending that it would dilute the contention of limitation and also it would change the complexion of the suit entirely. The trial Court by its order dated 05-04-2018 rejected I.A.No.11 and the said order is impugned in the instant writ petitions. 6. Heard the learned counsel appearing for the parties and perused the writ papers. 7. The trial Court by its order dated 05-04-2018 rejected I.A.No.11 and the said order is impugned in the instant writ petitions. 6. Heard the learned counsel appearing for the parties and perused the writ papers. 7. Learned counsel for the petitioners submit that filing of I.A.No11 under Order 6 Rule 17 of CPC became necessary since the defendant filed an application I.A.No.10 under Order 14 Rule 5 of CPC for framing additional issue which was allowed by the trial Court by its order dated 8-11-2017 and the trial Court framed the additional issues with regard to limitation and also non-joinder of necessary parties. It is the submission of the learned counsel for the petitioners that when the said I.A.No.10 was filed, no opportunity was given to file his objections and the said order has become final. Learned counsel further submits that I.A. filed under Order 6 Rule 17 of CPC is in clarificatory in nature and time was not the essence of the contract. 8. In support of his contention, learned counsel for the petitioners relied upon two decision of the Hon'ble Supreme Court reported in the case of Sampath Kumar vs. Sayyakannu & Anr., (2002) 7 SCC 559 . 9. Per contra, learned counsel appearing for the respondent submits that the contract is dated 31-10-1981 and time was the essence of the contract. If the amendment is allowed, the entire complexion of the suit would change. Further, he submits that the right accrued to the defendant would be diluted if the application for amendment is allowed. In support of his contention, learned counsel for the respondent relied upon an unreported decision of the Hon'ble Supreme Court in Civil Appeal No.5567/2008 in the case of South Konka Distilleries & Anr. Vs. Prabhakar Gajanan Naik & Ors. disposed of on 09-09-2008. 10. The suit is for specific performance of the agreement dated 31-10-1981. It is the case of the petitioners that they were put in possession of the suit schedule property in the year 1982 on payment of entire sale consideration. Since the sale deed was not executed, they filed the suit in the year 2007 seeking for judgment and decree for specific performance of the agreement. The defendants had filed their written statement interalia contending that the court has already framed issues and at the instance of the defendants framed additional issues regarding question of limitation. Since the sale deed was not executed, they filed the suit in the year 2007 seeking for judgment and decree for specific performance of the agreement. The defendants had filed their written statement interalia contending that the court has already framed issues and at the instance of the defendants framed additional issues regarding question of limitation. The matter is at the stage of evidence of the plaintiffs. At that point of time, the plaintiffs filed an I.A. for amendment under Order 6 Rule 17 to insert two paragraphs as Para 11(A) and 49(A), which read as under: 11(A). The plaintiff submits that period of 5 months was stipulated in the agreement i.e., 31st March, 1982 to complete the sale transaction. The time for sale transaction was not meant to be strictly adhered to in as much as the Defendant has delivered the possession of the Suit Schedule Property after 31st March, 1982 and the Plaintiff was allowed to be in peaceful possession and enjoyment of the Suit Schedule Property till 2007 when Defendant tried to interfere with the possession of the Plaintiff by the conduct of the parties. It is implied that the time was not the essence of the contract. Hence, the parties to the contract have never treated the time was essence of the contract. 49(A). The Defendant has for the first time denied the execution of the sale deed in favour of the Plaintiff only when the Defendant tried to interfere with the peaceful possession and enjoyment of the Suit Schedule Property of Plaintiff and threatened to disconnect the electricity connection and asked for huge sum of money to register the sale deed and if his demand are not met, the defendant threatened the plaintiff and his Power of Attorney holder to disconnect the electricity connection and the BESCOM authority have acted upon complaint of the Defendant for obvious reasons and disconnected the power connection on 01.09.2007. Hence, Suit is in time. 11. On going through the above it is seen that the plaintiffs are desirous to add certain factual position and also to state that time was not the essence of the contract. The question of limitation is mixed question of fact and law which is to be proved in the trial by leading evidence. At this stage, it is not appropriate for this Court to say anything on the issue of limitation. The question of limitation is mixed question of fact and law which is to be proved in the trial by leading evidence. At this stage, it is not appropriate for this Court to say anything on the issue of limitation. The trial Court while passing the order has observed that if the application is allowed it would amount to taking back the right accrued to the defendant. The matter is at the stage of evidence. At this stage the Court cannot decide and say in whose favour any right has been accrued. Only after trial, the court would be in a position to say regarding accrual of right in favour of any of the parties. It is further observed by the trial Court that the plaintiffs have already made a specific plea in different words. If that is so, in my opinion, the amendment by adding certain paragraphs would not in any way prejudice the case of the defendant. Further it is needless to say that the defendant would get an opportunity to file additional written statement. 12. The decision relied on by the counsel for the petitioners reported in (2002) 7 SCC 559 , the Hon'ble Supreme Court has held that amendment of pleadings before commencement of trial should normally be allowed. In the instant case, the suit is at the stage of commencement of evidence. 13. The respondent in support of his contention that the claim is barred by limitation has relied upon an unreported decision in Civil Appeal No.5567/2008. Paragraphs 18 and 19 read as under: 18. The learned counsel appearing on behalf of the appellants again relied on a decision of this Court in Gajanan Jaikishan Joshi vs. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 and sought to argue that the courts below were in error in rejecting the application for amendment of the written statement and the counter claim. In our view, that decision of this Court is distinguishable on facts. In that decision, no fresh cause of action was sought to be introduced by the amendment applied for. All that the appellant sought to do in that case was to complete the cause of action for specific performance for which relief he had already prayed for. In our view, that decision of this Court is distinguishable on facts. In that decision, no fresh cause of action was sought to be introduced by the amendment applied for. All that the appellant sought to do in that case was to complete the cause of action for specific performance for which relief he had already prayed for. It was only that one averment required in law to be made in a plaint in a suit for specific performance was not made in that case as the provisions of sub-section (c) of Section 16 of the Specific Relief Act was mandatory in nature, probably on account of some oversight or mistake of the lawyer who drafted the plaint and that error was sought to be rectified by the amendment applied for. This is not the position in the present case. Admittedly the claim of 1986 was sought to be made by way of the amendment of the written statement and the counter claim in the year 2000, when that claim had already become barred by the law of limitation. Such being the position and in view of the principle laid down, as noted herein above, that if a suit was filed for the amended claim which could have become barred by the law of limitation, the application for amendment was rightly rejected. 19. Keeping the aforesaid findings made by us and also the findings arrived at by the courts below in the matter of exercise of discretion to reject the application for amendment of the written statement and the counter claim in mind, the delay and latches on the part of the appellants to apply for amendment of the written statement and the counter claim would be the relevant factor for rejecting the application for amendment of the pleadings. As noted herein earlier, there has been thirteen and a half years delay in filing the application for amendment of the pleadings. Further more, in the application for amendment, the appellants had not given any explanation whatsoever for such delay. Under these circumstances, we do not find any reason to interfere with the orders of the courts below. In our view, in the facts and circumstances of the case, the courts below were perfectly justified in rejecting the prayer for amendment of the written statement and the counter claim. Under these circumstances, we do not find any reason to interfere with the orders of the courts below. In our view, in the facts and circumstances of the case, the courts below were perfectly justified in rejecting the prayer for amendment of the written statement and the counter claim. This is a case where the amendment with regard to written statement was sought and the claim itself was barred by limitation as contended by the defendant. Further there was no explanation for delay in filing the amendment application. The plaintiff in the case on hand states that framing of additional issue at the instance of defendants in 2017 has made them to file application for amendment. 14. The Hon'ble Supreme Court in a decision in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors., (2012) AIR(SCW) 5419 at paragraph 8 has held as follows: 8. 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 in spite 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 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 and others v. Gattu Mahesh and others, (2012) 2 SCC 300 and Rameshkumar Agarwal v. Rajmala Exports Pvt. Ltd. & others, (2012) 5 SCC 337 . Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment. 15. In the above decision, the Hon'ble Supreme Court has observed that amendment is permissible at any stage of the proceedings for the purpose of determination of real question in controversy between the parties and further observed that 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 facts and circumstances of each case. 16. In the light of the above discussion, I am of the view that the trial Court fell into error in rejecting the amendment sought for by the plaintiffs and if the amendment is not allowed, the plaintiffs would suffer irreparable injury and injustice would be caused to them. On the other hand, no prejudice would be caused to the defendant and he would get an opportunity of filing additional written statement and also to take up all contentions available in law. Therefore the writ petitions are allowed. The order dated 05-04-2018 is set aside. The application I.A.No.11 filed under Order 6 Rule 17 is allowed and the plaintiffs are permitted to amend the plaint as sought in I.A.No.11. 17. Learned counsel for the defendant submits that the trial Court may be directed to dispose of the suit early. Since the suit is of the year 2007, subject to any other directions of this Court in any other matters, the trial Court is directed to dispose of the matter expeditiously and I am sure that the parties to the suit would co-operate for speedy disposal of the suit.