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2020 DIGILAW 1148 (KAR)

Manjunath A. r. v. Radhamma A. R.

2020-06-19

E.S.INDIRESH

body2020
JUDGMENT E S Indiresh, J. - The petitioner herein is defendant No.2 in O.S.No.145/2016 on the file of the II Additional Senior Civil Judge and JMFC, Chikkaballapura. 2. The petitioners herein being aggrieved by the order dated 17.06.2019 on I.A.No.11 filed by the plaintiff under Order VI Rule 17 read with section 151 of CPC has preferred the instant writ petition. 3. I have heard the learned counsel for the petitioner. 4. The main contention of the learned counsel for the petitioner is that the trial Court has framed the issues in the said suit and the case is set down for evidence of the plaintiff and at that moment, the plaintiff has filed the application seeking amendment of the plaint, which ought not to have been allowed by the trial Court in view of Proviso to Order VI Rule 17 of CPC. The learned counsel further submits that the trial Court has not considered the relief sought for in the application as suit is filed by the plaintiff for relief of partition and separate possession in respect of the suit schedule property. However, the plaintiff came to know about the execution of alleged registered gift deed and Will said to have been executed by defendant No.1 in favour of defendant No.2 pursuant to filing of written statement by the defendant No.2 disclosing the said fact and as such allowing the amendment application filed by the plaintiff No.3 for seeking amendment of plaint by the trial Court is contrary to the established principle of law under Order VI Rule 17 of CPC and as such sought for setting aside the impugned order produced at Annexure-E. 5. I have perused the entire material on record and the reasons assigned by the trial Court while allowing the amendment application filed under Order VI Rule 17 of CPC. It is not in dispute that the trial Court has framed the issues and the application for amendment was filed, when the case was set down for plaintiff's evidence. The perusal of the affidavit filed by the plaintiff No.3 in I.A.No.11 was that the plaintiff came to know about execution of the registered gift deed and Will said to have been executed by defendant No.1 in favour of defendant No.2 pursuant to the filing of written statement by the defendant No.2 before the Court below. The perusal of the affidavit filed by the plaintiff No.3 in I.A.No.11 was that the plaintiff came to know about execution of the registered gift deed and Will said to have been executed by defendant No.1 in favour of defendant No.2 pursuant to the filing of written statement by the defendant No.2 before the Court below. Since, the proceedings before the trial Court is at the stage of the evidence to be adduced by the parties and as such the impugned order passed by the trial Court is within a purview of Order VI Rule 17 of CPC. 6. The Hon'ble Supreme Court in the case of ABDUL REHMAN AND ANOTHER VS. MOHD. RULDU AND OTHERS, (2012) 11 SCC 341 has held at paragraph 11 as follows: "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 order 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 v. Gattu Mahesh and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment." 7. The Hon'ble Supreme Court in the case of STATE OF MADHYA PRADESH V/S UNION OF INDIA, (2011) 12 SCC 268 , while considering the proviso to Order VI Rule 17 of CPC has held that the amendment of the application should not be allowed if the same would be introducing a totally different, new and inconsistent case or challenges fundamental character of the suit. The perusal of prayer made in the amendment application do not include any new plea or relief as such. 8. It is also settled principle of law that amendment cannot be claimed as a matter of right and under all circumstances, the Courts while deciding such prayers should not adopt a hyper technical approach and liberal approach should be the general duty particularly in cases where other side can be compensated with costs. 9. Normally, amendments are allowed in pleadings to avoid multiplicity of litigations and as such, if such application is filed after commencement of trial, it must be shown that despite of due diligence, such amendment could not have sought earlier. 10. In the instant case, the matter is set down for the evidence of the plaintiff and at that stage, the plaintiff felt that the defendants have taken a plea about the registration of the suit schedule property by way of gift and will, pursuant to the written statement filed by the defendants therein and as such, the plaintiffs have filed an application under Order VI Rule 17 of CPC and therefore, the averments regarding incorporation of documents like gift and Will as sought by the amendment does not change the nature of the suit as alleged. 11. 11. The perusal of the aforesaid law declared by the Hon'ble Supreme Court would clearly indicates the object of Order VI Rule 17 of CPC is that the trial Court is permitted to allow the amendment 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. It is also stated that the main purpose of allowing the amendment application by the trial Court is to minimize the litigation and the plea that 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. Taking into consideration the law declared by the Hon'ble Supreme Court in the aforesaid matter, the impugned judgment passed by the trial Court is just and proper which does not call for any interference by this Court under Article 227 of the Constitution of India. It is settled principles of law that the power of superintendent conferred by Article 227 of the Constitution of India is to be exercised very sparingly and only in appropriate cases in order to keep subordinate Courts within the bounds of their authority and not mere correcting errors. In a catena of decisions by the Hon'ble Supreme Court, it is held that the High Court, could not, in the guise of exercising its jurisdiction under Article 227 of Constitution of India, convert itself into Court of appeal while the legislature has not conferred the right of appeal. 12. The Hon'ble Supreme Court in the case of RADHEY SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS, (2009) 5 SCC 616 held as follows: "Under Article 227 of the Constitution, the High Court does not issue a writ of certiorari. Article 227 of the Constitution vests the High Courts with a power of superintendence which is to be very sparingly exercised to keep tribunals and courts within the bounds of their authority. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. 13. Under Article 227, orders of both civil and criminal courts can be examined only in very exceptional cases when manifest miscarriage of justice has been occasioned. Such power, however, is not to be exercised to correct a mistake of fact and of law. 13. The said aspect of the matter is also considered by the Hon'ble Supreme Court in the case of JAISINGH AND OTHERS v. MUNICIPAL CORPORATION OF DELHI AND ANOTHER, (2010) 9 SCC 385 and same is as follows: "The High Court under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law." It is further held that: "It can not be exercised like a "bull in a china shop", to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice." 14. Having considered the law declared by the Hon'ble Supreme Court stated above I do not find any ground urged by the learned counsel for petitioner to interfere with the impugned order passed by the trial Court in the present writ petition. 15. Accordingly, the writ petition is dismissed. However, the trial Court while allowing the application filed by the plaintiff No.3 has observed that the proposed amendment is re-joinder to the written statement of the defendant No.2. In view of the said observation made by the trial Court while allowing the application, in the ends of the justice, it is appropriate to reserve liberty to the petitioners herein to raise plea of limitation at appropriate stage of the proceedings. Ordered accordingly.