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2018 DIGILAW 841 (KAR)

Nanjamma v. Puttathayamma

2018-08-02

SHANKAR GANAPATHI PANDIT

body2018
ORDER : SHANKAR GANAPATHI PANDIT, J. 1. The petitioners are before this Court under Article 227 of Constitution of India, challenging the order dated 18.11.2017 passed on I.A. No. 3 in O.S. No. 355/2015 on the file of the Senior Civil Judge and JMFC at Magadi. 2. The petitioners are plaintiffs and respondents are defendants in O.S. No. 355/2015 filed for declaring that the plaintiffs and defendant Nos. 4 and 5 are co-owners of suit schedule property and for injunction in respect of Sy. No. 5/1 measuring 6 acres 20 guntas situated at Ajjanahalli Village, Thavarekere Hobli, Bangalore South Taluk. The plaintiffs filed an application under Order 6 Rule 17 of CPC to amend the plaint stating that they are in possession and enjoyment of Sy. No. 5/1 measuring 6 acres 20 guntas. The husband of defendant No. 1 and father of defendant No. 2 Lingappa had purchased the property under sale deed dated 3.10.1954 for a sale consideration of Rs. 1,500/-. As there was no amount, a mortgage was created in respect of the property in Sy. No. 5/1 to an extent of 6 acres 20 guntas. It is the case of the petitioners that mortgage is redeemed. As the defendants had taken a contention that the mortgage is redeemed, it has become necessary for plaintiffs to file amendment application to incorporate certain facts and additional prayer seeking to declare that the mortgage deed dated 05.10.1954 and agreement of sale dated 03.10.1954 are not binding on the plaintiffs and also to include suit item No. 2 to the suit schedule. The respondents filed objection resisting the amendment application. The trial Court by order dated 18.11.2017 rejected the application filed under Order 6 Rule 17 of CPC filed by the plaintiffs. The said order is impugned in the present writ petition. 3. Heard the learned counsel for the petitioners and learned counsel for the respondents and perused the writ papers. 4. The learned counsel for the petitioners submits that the suit is originally filed seeking declaration that the plaintiffs and defendant Nos. 4 and 5 are co-owners of suit schedule property i.e., Sy. No. 5/1 to an extent of 6 acres 20 guntas. The defendant Nos. 4. The learned counsel for the petitioners submits that the suit is originally filed seeking declaration that the plaintiffs and defendant Nos. 4 and 5 are co-owners of suit schedule property i.e., Sy. No. 5/1 to an extent of 6 acres 20 guntas. The defendant Nos. 1 to 3 filed their written statement contending that there is mortgage in favour of them, which is not redeemed and Duggalaiah in his lifetime, has never redeemed or persons, who claim through him, have also not redeemed the said mortgage. As the defendants have taken the contention that mortgage is not redeemed, it has become necessary for the plaintiffs to incorporate facts with regard to redemption of mortgage. It is the further submission of counsel for the petitioners that on the reverse side of mortgage deed, there is an endorsement to the effect of redemption of mortgage. Further it is submitted that defendant Nos. 1 to 3 have executed the registered agreement of sale on 03.10.2015 and the said fact the plaintiffs intend to incorporate by way of amendment. 5. Per contra, learned counsel for the respondents submits that the amendment sought now, is in the nature of replacing the entire claim itself. Further he submits that the nature and cause of action of the amendment is different and if the amendment application is allowed, it would change the entire suit itself. It is his further contention that the mortgage is not redeemed, therefore, the prayer sought by the plaintiffs in the amendment application is also not maintainable, as the same is barred by limitation. 6. The suit originally filed is one for declaration that the plaintiffs and defendant Nos. 4 and 5 are co-owners of suit schedule property i.e., Sy. No. 5/1 measuring 6 acres 20 guntas. It is an admitted fact that defendant Nos. 1 to 3 have taken a contention that there is mortgage by one Duggalaiah, through him, the plaintiffs claim that the said mortgage has not been redeemed. In the affidavit accompanying the application for amendment, the plaintiffs have stated that even against the revenue entries they have preferred revenue appeal on the revenue side and on filing of the written statement, it has become necessary for filing amendment application. The suit is at pre-trial stage. Evidence of the parties have not yet been commenced. In the affidavit accompanying the application for amendment, the plaintiffs have stated that even against the revenue entries they have preferred revenue appeal on the revenue side and on filing of the written statement, it has become necessary for filing amendment application. The suit is at pre-trial stage. Evidence of the parties have not yet been commenced. The purpose of allowing the amendment is to reduce the litigation as well as to avoid multiplicity of proceedings and to arrive at a proper conclusion once for all, in the suit. The amendment sought now, is in respect of the suit schedule property i.e., Sy. No. 5/1 measuring 6 acres 20 guntas. The relief now sought for declaring that the documents of registered mortgage and sale agreements are not binding on them, is in respect of the original suit schedule property. If the amendment is allowed, no prejudice would caused to defendant Nos. 1 to 3 as they would get an opportunity to file additional written statement and it is open for them to take all contentions available under law. The limitation question raised by the defendants is a mixed question of fact and law, which requires trial. It is open for the defendants to take the contention of limitation also in the additional written statement, which they would get on allowing of the application for amendment. The Hon'ble Supreme Court in the case of Pankaja & another vs. Yellappa (dead) by Lrs and others reported in (2004) 6 SCC 415 at paragraph Nos. 12, 13, and 14, has held as follows: "12. So far as the court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinions that the same is wide enough to permit amendments even in cases where there has been substantial delay in filling such amendment applications. This Court in numerous cases had help that the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if he facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. 13. This Court in numerous cases had help that the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if he facts of the case so permit, it is always open to the court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments. 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straitjacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case." 7. Hence, I am of the view, that as the amendment is sought at a pre-trial stage, I.A. No. 3 is liable to be allowed and the plaintiffs are permitted to amend the plaint. The petitioners shall pay costs of Rs. 10,000/- to the defendants on the next date of hearing. Accordingly, the writ petition is disposed of in the above terms.