Gulabi M.GadiyA. W/O Mothilal GadiyA. Vs. Smt. V.Puttammal. W/O Late N Veeraswamy, and ors. - Court Judgment

Excerpt:
[mr.justice b.s.patil, j. ] this writ petition is filed under articles 226 & 227 of the constitution of india, praying to quash the common order dated 26.11.2009 passed on 1a no.18 in o.s.no.4766/1986 by the xi addl. city civil judge, bangalore vide annexure-a.1. in this writ petition, petitioner is challenging the order dated 26.11.2009 passed by the xl addl. city civil jude, bangalore city, allowing ia no. 18 filed under order vi rule 17 cpc2. petitioner is the defendant before the trial court. the father of the respondents herein, n.veeraswamy instituted a suit in o.s.no.4766/1986 seeking the relief of permanent injunction restraining the defendant-petitioner herein from encroaching upon the suit schedule property or putting up fence, compound and construction or making any improvement over an)' portion of the suit, schedule property bearing site no.49 measuring 30 feet x 60 feet situated at chakravarthy layout, bangalore. the plaintiff - n.veeraswamy claimed that he was the absolute owner of the residential site bearing no.49 which was formed by m/s. chakravarthy house building co- operative society ltd., bangalore and was sold under a registered sale deed dated 11.06.1984 in his favor as lie was a member of the said society. alleging that on 18.11.1986, the defendant removed the fence put up by the plaintiff on the side of the defendant's site and had staited constructing a compound wall on the site belonging to the plaintiff by encroaching into the plaintiffs site to an extent of 10 feet, thereby reducing the plaintiffs site to 20 feet x 60 feet instead of 30 feet x 60 feet actually' owned and enjoyed by him, the suit was instituted.3. the original plaintiff n.veeraswamy died somewhere during the year 1993. his legal representatives - the present respondents herein filed applications to come on record. as can be seen from the facts stated in the affidavit filed in support of the application seeking amendment of the plaint, the application for bringing the legal representatives on record was filed in the office on 28.06.1993. later on, the case was posted for hearing on 16.08.1993 and was adjourned to 10.09.1993, on which date, the court below directed the office to put up the application filed on 28.06.1993 to bring the legal representatives of deceased plaintiff on record and posted the matter to 22.10.1993. after several adjournments, as the applications tiled by the legal representatives were misplaced, on 12.09.1994 the court directed the plaintiff to furnish the copies of the applications. it is further staged in the affidavit that on the docket, the counsel had made a noting that objections to interlocutory applications filed under order xxii rule 3. order xxii rule 4, section 5 of the limitation act and under order vi rule 17 cpc are to be filed by the other side. later, the matter was posted on 16.11.1996. on which day, the later, the matter was posted on 16.11.1996. on which day, the noting on the docket of the counsel disclosed that the applications had been allowed. consequently, the amendment was carried on 25.01.1997 to the cause title by bringing the legal representatives on record and to the plaint with regard to the prayer made in the application under order vi rule 17 cpc.4. thereafter, the defendant-petitioner herein has tiled additional written statement to the amendment incorporated by the plaintiff seeking the relief of declaration and possession. based on the same, additional issues regarding title to the property and the entitlement of the plaintiff for possession and for mandatory injunction have been framed. both the parties have let in evidence. when the main matter was being heard, the counsel for the defendant pointed out to the court that, there was no application field under order vi rule 17 seeking amendment of the plaint and for incorporating an additional prayer and therefore, the plaintiff and his counsel were guilty of tampering with the plaint and had committed serious illegality. at this stage, the plaintiff tiled two applications i.e.. ia-19 for striking out the amendment effected to the plaint on 25.01.1997 stating that the same was done due to a bonafide and inadvertent mistake under the impression that an application was actually filed and the same had been allowed. ia-18 was filed seeking amendment of the plaint to incorporate the very same amendment which the plaintiff had inserted in the plaint byamendingthesameon25.01.1997. the application seeking amendment of the plaint was resisted.5. the court below has repelled the objections and has allowed the application accepting the reasons assigned by the plaintiffs that the amendment was carried out under a bonafide mistake thinking that an application had been filed for amendment and that the same had been allowed. the court below has taken note of the fact that both the parties had acted upon the said amendment, in as much as, the defendant had filed additional written statement in reply to the amendment carried out and based on the same, additional issue nos. 1 to 3 were framed and the parties had led evidence on the same. the trial court has held that having regard to the peculiar circumstances of the case, in order to do complete justice and to decide the controversy on merits, the applications filed deserved to be allowed. the court below has also taken note of the fact that if the applications were to be rejected, the additional issues framed and the evidence recorded of both the parties on the said aspect which pertained to the declaration of title over the property had to be discarded and therefore, it was in the interest of justice that the mistake committed by the counsel, deserved to be condoned by saddling the counsel on record with some costs which would meet the ends of justice. thus, die counsel for the plaintiffs has been directed to pay cost of rs. 1,000/- to the defendant in view of the mistake committed by him, though bonafide one.6. learned counsel for the petitioners sri venkata reddy contends that the action on the part; of the plaintiff and his counsel tantamounts to tampering with the court, record and therefore the same cannot be condoned. he further submits that the amended plaint was filed on 0)7.11.1997, wherein it was urged in paragraph 4(a) introduced by way of amendment along with three additional prayers, that subsequent to the filing of the suit, the defendant taking advantage of the refusal of injunction, had illegally encroached 10 feet over the suit schedule property and had constructed a compound wall. it is his contention that after the refusal of temporary injunction on 23,02.1989, if the defendant had encroached upon 10 feet over the suit site, the same could be only prior to 25.01.1997 when the plaintiff illegally amended the plaint by incorporating para 4(a) and the additional prayers 1(a), 1(b) & 1(c), and therefore, the present application filed on 19.04.2009 in ia-18 seeking amendment of the plaint, was barred by limitation.7. respondents though served, have remained unrepresented8. having heard the learned counsel for the petitioners and on careful perusal of the entire materials on record, i find that the court below has accepted the explanation offered by the plaintiff regarding the inadvertent mistake committed in incorporating the amendment by amending the plaint on 25.01.1997. the affidavit filed in support of the application discloses that a bonafide mistake was committed in the proceeding on the assumption that an application had been prepared and presented seeking amendment of the plaint, a copy of which was available in the file and the court had allowed the said application while allowing the application to bring the legal representatives of the deceased plaintiff on record. the defendant-petitioner herein did not raise any objection for such amendment. on the other hand, he filed additional written statement to the amendment incorporated. additional issues are framed. evidence is led by both the parties. the defendant had the knowledge of the additional relief of declaration, mandatory injunction and possession sought by the plaintiff.9. the case of the plaintiff that is sought to be made out by the proposed amendment is. that during the pendency of the suit, the defendant had put up construction of the compound wall taking advantage of the refusal of temporary injunction. therefore, in the facts and circumstances of this ease, it cannot be said that the insertion of the amendment was fraudulently resorted to and was an attempt deliberately made to tamper with the court records. it cannot also be said that the relief of declaration of title sought for by the plaintiff by way. of amendment is barred by limitation, as the case of the legal representatives of the original plaintiff is- that after the refusal of the relief of temporary injunction, the defendant put up construction of the compound wall by encroaching 10 feet in the suit property. the court below has rightly taken note of the series of developments that have taken place culminating in the trial of the case on additional issue nos.1 to 3 framed after the amendment was incorporated and the additional written statement was filed. the court below has. kept in mind, the ends of justice and the need for final and complete adjudication of the matter on the question of title and as well as possession of the property. in these circumstances. i do not find any apparent illegality or error of jurisdiction on the part of the court below warranting interference in exercise of writ jurisdiction. hence, the writ petition is dismissed.

Judgment:
1. In this writ petition, petitioner is challenging the order dated 26.11.2009 passed by the XL Addl. City Civil Jude, Bangalore City, allowing IA No. 18 filed under Order VI Rule 17 CPC

2. Petitioner is the defendant before the Trial Court. The father of the respondents herein, N.Veeraswamy instituted a suit in O.S.No.4766/1986 seeking the relief of permanent injunction restraining the defendant-petitioner herein from encroaching upon the suit schedule property or putting up fence, compound and construction or making any improvement over an)' portion of the suit, schedule property bearing site No.49 measuring 30 feet x 60 feet situated at Chakravarthy Layout, Bangalore. The plaintiff - N.Veeraswamy claimed that he was the absolute owner of the residential site bearing No.49 which was formed by M/s. Chakravarthy House Building Co- operative Society Ltd., Bangalore and was sold under a registered sale deed dated 11.06.1984 in his favor as lie was a member of the said Society. Alleging that on 18.11.1986, the defendant removed the fence put up by the plaintiff on the side of the defendant's site and had staited constructing a compound wall on the site belonging to the plaintiff by encroaching into the plaintiffs site to an extent of 10 feet, thereby reducing the plaintiffs site to 20 feet x 60 feet instead of 30 feet x 60 feet actually' owned and enjoyed by him, the suit was instituted.

3. The original plaintiff N.Veeraswamy died somewhere during the year 1993. His legal representatives - the present respondents herein filed applications to come on record. As can be seen from the facts stated in the affidavit filed in support of the application seeking amendment of the plaint, the application for bringing the legal representatives on record was filed in the office on 28.06.1993. Later on, the case was posted for hearing on 16.08.1993 and was adjourned to 10.09.1993, on which date, the court below directed the office to put up the application filed on 28.06.1993 to bring the legal representatives of deceased plaintiff on record and posted the matter to 22.10.1993. After several adjournments, as the applications tiled by the legal representatives were misplaced, on 12.09.1994 the court directed the plaintiff to furnish the copies of the applications. It is further staged in the affidavit that on the docket, the Counsel had made a noting that objections to interlocutory applications filed under Order XXII Rule 3. Order XXII Rule 4, Section 5 of the Limitation Act and under Order VI Rule 17 CPC are to be filed by the other side. Later, the matter was posted on 16.11.1996. On which day, the Later, the matter was posted on 16.11.1996. On which day, the noting on the docket of the counsel disclosed that the applications had been allowed. Consequently, the amendment was carried on 25.01.1997 to the cause title by bringing the legal representatives on record and to the plaint with regard to the prayer made in the application under Order VI Rule 17 CPC.

4. Thereafter, the defendant-petitioner herein has tiled additional written statement to the amendment incorporated by the plaintiff seeking the relief of declaration and possession. Based on the same, additional issues regarding title to the property and the entitlement of the plaintiff for possession and for mandatory injunction have been framed. Both the parties have let in evidence. When the main matter was being heard, the Counsel for the defendant pointed out to the court that, there was no application field under Order VI Rule 17 seeking amendment of the plaint and for incorporating an additional prayer and therefore, the plaintiff and his counsel were guilty of tampering with the plaint and had committed serious illegality. At this stage, the plaintiff tiled two applications i.e.. IA-19 for striking out the amendment effected to the plaint on 25.01.1997 stating that the same was done due to a bonafide and inadvertent mistake under the impression that an application was actually filed and the same had been allowed. IA-18 was filed seeking amendment of the plaint to incorporate the very same amendment which the plaintiff had inserted in the plaint byamendingthesameon25.01.1997. The application seeking amendment of the plaint was resisted.

5. The court below has repelled the objections and has allowed the application accepting the reasons assigned by the plaintiffs that the amendment was carried out under a bonafide mistake thinking that an application had been filed for amendment and that the same had been allowed. The court below has taken note of the fact that both the parties had acted upon the said amendment, in as much as, the defendant had filed additional written statement in reply to the amendment carried out and based on the same, additional issue Nos. 1 to 3 were framed and the parties had led evidence on the same. The Trial Court has held that having regard to the peculiar circumstances of the case, in order to do complete justice and to decide the controversy on merits, the applications filed deserved to be allowed. the court below has also taken note of the fact that if the applications were to be rejected, the additional issues framed and the evidence recorded of both the parties on the said aspect which pertained to the declaration of title over the property had to be discarded and therefore, it was in the interest of justice that the mistake committed by the Counsel, deserved to be condoned by saddling the counsel on record with some costs which would meet the ends of justice. Thus, die counsel for the plaintiffs has been directed to pay cost of Rs. 1,000/- to the defendant in view of the mistake committed by him, though bonafide one.

6. Learned Counsel for the petitioners Sri Venkata Reddy contends that the action on the part; of the plaintiff and his counsel tantamounts to tampering with the court, record and therefore the same cannot be condoned. He further submits that the amended plaint was filed on 0)7.11.1997, wherein it was urged in paragraph 4(a) introduced by way of amendment along with three additional prayers, that subsequent to the filing of the suit, the defendant taking advantage of the refusal of injunction, had illegally encroached 10 feet over the suit schedule property and had constructed a compound wall. It is his contention that after the refusal of temporary injunction on 23,02.1989, if the defendant had encroached upon 10 feet over the suit site, the same could be only prior to 25.01.1997 when the plaintiff illegally amended the plaint by incorporating para 4(a) and the additional prayers 1(a), 1(b) & 1(c), and therefore, the present application filed on 19.04.2009 in IA-18 seeking amendment of the plaint, was barred by limitation.

7. Respondents though served, have remained unrepresented

8. Having heard the learned Counsel for the petitioners and on careful perusal of the entire materials on record, I find that the court below has accepted the explanation offered by the plaintiff regarding the inadvertent mistake committed in incorporating the amendment by amending the plaint on 25.01.1997. The affidavit filed in support of the application discloses that a bonafide mistake was committed in the proceeding on the assumption that an application had been prepared and presented seeking amendment of the plaint, a copy of which was available in the file and the court had allowed the said application while allowing the application to bring the legal representatives of the deceased plaintiff on record. The defendant-petitioner herein did not raise any objection for such amendment. On the other hand, he filed additional written statement to the amendment incorporated. Additional issues are framed. Evidence is led by both the parties. The defendant had the knowledge of the additional relief of declaration, mandatory injunction and possession sought by the plaintiff.

9. The case of the plaintiff that is sought to be made out by the proposed amendment is. That during the pendency of the suit, the defendant had put up construction of the compound wall taking advantage of the refusal of temporary injunction. Therefore, in the facts and circumstances of this ease, it cannot be said that the insertion of the amendment was fraudulently resorted to and was an attempt deliberately made to tamper with the court records. It cannot also be said that the relief of declaration of title sought for by the plaintiff by way. of amendment is barred by limitation, as the case of the legal representatives of the original plaintiff is- that after the refusal of the relief of temporary injunction, the defendant put up construction of the compound wall by encroaching 10 feet in the suit property. The court below has rightly taken note of the series of developments that have taken place culminating in the trial of the case on additional issue Nos.1 to 3 framed after the amendment was incorporated and the additional written statement was filed. The court below has. Kept in mind, the ends of justice and the need for final and complete adjudication of the matter on the question of title and as well as possession of the property. In these circumstances. I do not find any apparent illegality or error of jurisdiction on the part of the court below warranting interference in exercise of writ jurisdiction. Hence, the writ petition is dismissed.