Hanamantagouda (Deceased) by L.Rs Vs. Parasanagouda - Court Judgment

Excerpt:
- indian penal code, 1890.sections 306, 34 & 107: [r.b. naik,j] abetment of suicide accused wife not desirous of making a living with her husband living in a joint family - left the house of her husband and started living in house of parents she insisted that her husband should provide a luxurious bungalow to lead a luxurious life and if he is incapable of organizing big house, he should hang himself legal notice from husband was not replied -deceased husband went to house of accused and made a request that accused should join him deceased was harassed and insulted by wife and parents-in-law he felt that he should end his life - consumed poison - police after investigation filed charge-sheet against his wife i.e., accused under section 306 read with section 34 of the ipc - accused sought discharge - trial court rejected request for discharge and framed charges revision against - held, if refusal of wife to make a living with him is taken seriously by deceased and taken drastic step of committing suicide the accused-wife cannot be held responsible for the same. averments and statements are not sufficient to hold charge against accused for offences under section 306 for abatement of suicide as defined in section 107. order of trial court was set aside and accused was discharged of offence. -- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 227: discharge of accused - wife refusing to live with her husband, for reasons best known to her husband taking a drastic step of committing suicide complaint against wife, her mother and her brothers police filing charge sheet against the accused persons for an offence punishable under section 306 read with section 34 i.p.c., accused persons sought for discharge order of the trial judge directing framing of charges against the accused/petitioners for an offence punishable under section 306 read with section 34 india penal code revision against held, material on record reveals that there was no compatibility between husband and wife. the first petitioner was refusing to live with her husband, her husband, for reasons best known to her or for the reasons as stated in the complaint. if such refusal is taken serious by the husband and he takes a drastic step of committing suicide, the petitioners cannot be held responsible for the same. further, though a meticulous analysis of the material of the prosecution is not permissible at the stage of framing of charge, even a cursory reading of the statements and averments in the complaint would to establish that the grounds made out by the prosecution are not sufficient to hold that a charge should be framed against the accused for the offences punishable under section 306 i.p.c., for abatement of suicide as defined under section 107 i.p.c., the trial court has failed to appreciate this aspect of the matter. the entire material of the prosecution even if un-rebutted, there is no possibility of the petitioners being reasonably to be held guilty of the offence for which they are charged. - it is well settled that all amendments that are necessary for the final determination of the issues between the parties are to be allowed subject to one condition that the amendment is not of a nature that may amount to be a new case and especially when it has become barred by limitation. it has also to be taken note that it has been laid by this court as well as the supreme court that rules of procedure are made to subserve the cause of justice and not to obstruct the flow of justice to the parties on sheer technical grounds. defendant himself has asserted the plaintiff has not clearly disclosed the source of title and denied title of plaintiff. 7. thus considered in my opinion, the trial court erred in law in rejecting the application for amendment on misconception of law and thus failed to exercise the jurisdiction vested under order 6, rule 17 of the cpc. 9. the trial court is directed to give sufficient opportunity to the defendant for filing additional written statement as well as for filing documentary or other evidence to both the parties.order1. this revision petition under section 115 of the cpc arises from the order dated 12th august, 1994 passed by the prl. munsiff, hubli, in o.s. no. 448 of 1987 rejecting the i.a. no. 11 filed by the plaintiff under order 6, rule 17 read with section 151 of the code of civil procedure.2. the plaintiff-revision petitioner had filed a suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. he has also prayed for a declaration that he is the exclusive owner of the properties in question, which was denied by the defendant. the defendant alleged that the plaintiff has not disclosed his source of title and as to how he acquired the suit properties. the plaintiff thereafter moved an application for amendment clarifying the sources of his title by the amendment application. he also sought for a decree of declaration, in addition to permanent injunction. the trial court held that the proposed amendment sought for by the plaintiff, if allowed, would introduce a new cause of action. the trial court also observed that after the lapse of more than three years the plaintiffs seeking the relief of declaration by way of amendment to the plaint is barred by limitation and accordingly rejected i.a. no. 11.3. feeling aggrieved by the said order, the plaintiff has come up in revision.4. i have heard sri umesh r. malimath, learned counsel appearing for the revision petitioner and also ms. shantha w. joshi, learned counsel appearing for the respondent.5. no doubt, the amendment application had been moved sometime in the year 1994, almost 7 years after the filing of the suit. it is well settled that all amendments that are necessary for the final determination of the issues between the parties are to be allowed subject to one condition that the amendment is not of a nature that may amount to be a new case and especially when it has become barred by limitation. the question as to what is the new case or cause of action has been considered by the supreme court in the case of a.k. gupta and sons limited v damodar valley corporation, wherein it has been laid down that in the matter of allowing amendment of pleading, the general rule is that a party is not to be allowed by amendment, to set up a new cause or a new case, particularly when a suit on the new cause of action is barred. where, however, the amendment does not constitute the addition of a new cause of action nor does it raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation. the expression 'cause of action' in this context does not mean every fact which is material on record to be proved to entitle the plaintiff to succeed. the expression 'only' means a new claim made on a new basis constituted by new facts. the words 'new case' means new set of ideas. no amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time. the general rule is that a party is not to be allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. it has also to be taken note that it has been laid by this court as well as the supreme court that rules of procedure are made to subserve the cause of justice and not to obstruct the flow of justice to the parties on sheer technical grounds. order 6, rule 17 of the cpc provides that at any stage of the proceedings the court may allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. the idea behind this is of a final determination of the case according to law, the amendment may be permitted keeping these basic principles in view and consideration.6. here in this case the plaintiff has asserted his title to the property as owner. in the written statement the defendant has stated that the plaintiff had no right, title or interest in the property and apart from that the plaintiff has not shown his source of title to the suit property. the defendant was justified in taking the plea that the plaintiff did not disclose the source of his title and so the necessity to move application for amendment did arise to disclose his source or basis for claim of title. the plaintiff ought to have moved the application for amendment at the earliest point of time, disclosing his title with necessary facts in relation to the title claimed by him over the property in dispute in the body of the plaint. the suit was filed only for injunction. through the amendment application, the plaintiff sought for the declaration that he is the absolute owner of the suit properties, that it is beyond doubt that plaintiff did assert his title to the land in suit, which the defendant has denied and as such the court below had to determine the plaintiff's title andquestion of plaintiff's title and possession. so, declaration is always involved whether decree for declaration of title is sought for or not, in a suit based on title for possession and injunction and if that is so, i.e., when the title has been asserted, in original plaint, in my opinion, it cannot be said that when the amendment application has been made disclosing the source of title, it would be making out a new case. the amendment amounts to clarification of the fact which had been asserted by plaintiff in the plaint that he is the exclusive owner of the suit properties. so the amendment which has been sought for adding a para disclosing his title or source of title cannot be said to be amounting to making out a new case, but it is only an amplification of the facts already pleaded. the defendant has not admitted the title of the plaintiff. defendant himself has asserted the plaintiff has not clearly disclosed the source of title and denied title of plaintiff. therefore, in my opinion, the amendment sought for by the plaintiff cannot be said to be an amendment making out a new case. in this view of the matter, the amendment sought for by the plaintiff has to be allowed though it is belated. the trial court was not right in observing that if the amendment is allowed, it will change the character of the suit. when the plaintiff has amply disclosed the source of title, by amendment, the defendant would not be taken by surprise and such an amendment disclosing particulars and source of title, already asserted in plaint can be said to be needful and necessary for final determination of title. so, in my opinion the application for amendment seeking to bringing necessary facts on record, amplifying and disclosing the source of title cannot be said to be amounting out a new case or new cause. so far as the prayer for declaration is concerned, the declaratory relief sought for by the plaintiff is not necessary. had the plaintiff not claimed any ownership, his original claim would have been based on possession simpliciter and then it could not have been said to be a new cause of action. but, here that is not so. the plaintiff has asserted in the plaint itself his claim of title to the property as an owner exclusively, which the defendant has denied. therefore, it is really something flowing from the assertion of plaintiffs title made in the plaint and denied by defendant in a suit for injunction and court will have to determine the issue relating thereto irrespective of the fact that no decree for declaration of title of plaintiff has been claimed, so if by amendment application decree for declaration of title is also sought to be claimed, it is wrong to say the plaintiffs amendment application has the effect of making out a new cause of action or new case.7. thus considered in my opinion, the trial court erred in law in rejecting the application for amendment on misconception of law and thus failed to exercise the jurisdiction vested under order 6, rule 17 of the cpc. the amendment as sought for, in my opinion, is necessary for the proper determination of the issue of title. in this view of the matter, in my considered view, the revision petition has to be allowed and consequently the application for amendment also should be allowed. while allowing the amendment application, interest of justice would requirethat the plaintiff should be saddled with costs for belated moving the amendment application.8. in the result, this petition is allowed and the order passed by the trial court on la. no. 11 in o.s. no. 448 of 1987, dated 12-8-1994, is set aside and the amendment application of the plaintiff is allowed, subject to the condition that the plaintiff shall pay a sum of rs. 550/- (rupees five hundred fifty only) to the defendant. so far as the cost in this petition is concerned, the parties shall bear their own costs.9. the trial court is directed to give sufficient opportunity to the defendant for filing additional written statement as well as for filing documentary or other evidence to both the parties.

Judgment:
ORDER

1. This revision petition under Section 115 of the CPC arises from the order dated 12th August, 1994 passed by the Prl. Munsiff, Hubli, in O.S. No. 448 of 1987 rejecting the I.A. No. 11 filed by the plaintiff under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure.

2. The plaintiff-revision petitioner had filed a suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. He has also prayed for a declaration that he is the exclusive owner of the properties in question, which was denied by the defendant. The defendant alleged that the plaintiff has not disclosed his source of title and as to how he acquired the suit properties. The plaintiff thereafter moved an application for amendment clarifying the sources of his title by the amendment application. He also sought for a decree of declaration, in addition to permanent injunction. The Trial Court held that the proposed amendment sought for by the plaintiff, if allowed, would introduce a new cause of action. The Trial Court also observed that after the lapse of more than three years the plaintiffs seeking the relief of declaration by way of amendment to the plaint is barred by limitation and accordingly rejected I.A. No. 11.

3. Feeling aggrieved by the said order, the plaintiff has come up in revision.

4. I have heard Sri Umesh R. Malimath, learned Counsel appearing for the revision petitioner and also Ms. Shantha W. Joshi, learned Counsel appearing for the respondent.

5. No doubt, the amendment application had been moved sometime in the year 1994, almost 7 years after the filing of the suit. It is well settled that all amendments that are necessary for the final determination of the issues between the parties are to be allowed subject to one condition that the amendment is not of a nature that may amount to be a new case and especially when it has become barred by limitation. The question as to what is the new case or cause of action has been considered by the Supreme Court in the case of A.K. Gupta and Sons Limited v Damodar Valley Corporation, wherein it has been laid down that in the matter of allowing amendment of pleading, the general rule is that a party is not to be allowed by amendment, to set up a new cause or a new case, particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action nor does it raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after expiry of the statutory period of limitation. The expression 'cause of action' in this context does not mean every fact which is material on record to be proved to entitle the plaintiff to succeed. The expression 'only' means a new claim made on a new basis constituted by new facts. The words 'new case' means new set of ideas. No amendment will be allowed to introduce new set of ideas to the prejudice of any right acquired by any party by lapse of time. The general rule is that a party is not to be allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. It has also to be taken note that it has been laid by this Court as well as the Supreme Court that rules of procedure are made to subserve the cause of justice and not to obstruct the flow of justice to the parties on sheer technical grounds. Order 6, Rule 17 of the CPC provides that at any stage of the proceedings the Court may allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The idea behind this is of a final determination of the case according to law, the amendment may be permitted keeping these basic principles in view and consideration.

6. Here in this case the plaintiff has asserted his title to the property as owner. In the written statement the defendant has stated that the plaintiff had no right, title or interest in the property and apart from that the plaintiff has not shown his source of title to the suit property. The defendant was justified in taking the plea that the plaintiff did not disclose the source of his title and so the necessity to move application for amendment did arise to disclose his source or basis for claim of title. The plaintiff ought to have moved the application for amendment at the earliest point of time, disclosing his title with necessary facts in relation to the title claimed by him over the property in dispute in the body of the plaint. The suit was filed only for injunction. Through the amendment application, the plaintiff sought for the declaration that he is the absolute owner of the suit properties, that it is beyond doubt that plaintiff did assert his title to the land in suit, which the defendant has denied and as such the Court below had to determine the plaintiff's title andquestion of plaintiff's title and possession. So, declaration is always involved whether decree for declaration of title is sought for or not, in a suit based on title for possession and injunction and if that is so, i.e., when the title has been asserted, in original plaint, in my opinion, it cannot be said that when the amendment application has been made disclosing the source of title, it would be making out a new case. The amendment amounts to clarification of the fact which had been asserted by plaintiff in the plaint that he is the exclusive owner of the suit properties. So the amendment which has been sought for adding a para disclosing his title or source of title cannot be said to be amounting to making out a new case, but it is only an amplification of the facts already pleaded. The defendant has not admitted the title of the plaintiff. Defendant himself has asserted the plaintiff has not clearly disclosed the source of title and denied title of plaintiff. Therefore, in my opinion, the amendment sought for by the plaintiff cannot be said to be an amendment making out a new case. In this view of the matter, the amendment sought for by the plaintiff has to be allowed though it is belated. The Trial Court was not right in observing that if the amendment is allowed, it will change the character of the suit. When the plaintiff has amply disclosed the source of title, by amendment, the defendant would not be taken by surprise and such an amendment disclosing particulars and source of title, already asserted in plaint can be said to be needful and necessary for final determination of title. So, in my opinion the application for amendment seeking to bringing necessary facts on record, amplifying and disclosing the source of title cannot be said to be amounting out a new case or new cause. So far as the prayer for declaration is concerned, the declaratory relief sought for by the plaintiff is not necessary. Had the plaintiff not claimed any ownership, his original claim would have been based on possession simpliciter and then it could not have been said to be a new cause of action. But, here that is not so. The plaintiff has asserted in the plaint itself his claim of title to the property as an owner exclusively, which the defendant has denied. Therefore, it is really something flowing from the assertion of plaintiffs title made in the plaint and denied by defendant in a suit for injunction and Court will have to determine the issue relating thereto irrespective of the fact that no decree for declaration of title of plaintiff has been claimed, so if by amendment application decree for declaration of title is also sought to be claimed, it is wrong to say the plaintiffs amendment application has the effect of making out a new cause of action or new case.

7. Thus considered in my opinion, the Trial Court erred in law in rejecting the application for amendment on misconception of law and thus failed to exercise the jurisdiction vested under Order 6, Rule 17 of the CPC. The amendment as sought for, in my opinion, is necessary for the proper determination of the issue of title. In this view of the matter, in my considered view, the revision petition has to be allowed and consequently the application for amendment also should be allowed. While allowing the amendment application, interest of justice would requirethat the plaintiff should be saddled with costs for belated moving the amendment application.

8. In the result, this petition is allowed and the order passed by the Trial Court on LA. No. 11 in O.S. No. 448 of 1987, dated 12-8-1994, is set aside and the amendment application of the plaintiff is allowed, subject to the condition that the plaintiff shall pay a sum of Rs. 550/- (Rupees Five Hundred Fifty only) to the defendant. So far as the cost in this petition is concerned, the parties shall bear their own costs.

9. The Trial Court is directed to give sufficient opportunity to the defendant for filing additional written statement as well as for filing documentary or other evidence to both the parties.