Borappa vs S.M. Maheshwaraiah and Others

R.S. Chauhan, J.—The petitioner, Mr. Borappa, is aggrieved by the order dated 03.11.2015, passed by the Civil Judge and JMFC, Kudligi, whereby the learned Civil Judge has rejected the application filed by the petitioner under Order VI Rule 17 R/w. Section 151 CPC, for amending the written statement filed by the petitioner.

The brief facts of the case are that Mr. S.M. Maheshwaraiah, the respondent herein, had filed a suit for declaration and injunction in respect of a land bearing Survey No. 97-C, 97-D and, 97-E situated in Kudligi village, Koppal Taluk, Bellary Dist. But according to the respondent, these land holdings were part of his family property. The petitioner did not have any right over the said land. But nonetheless, petitioner began interfering with the peaceful possession of the respondent herein. Thus, the suit for declaration and injunction.

The petitioner filed his written statement, wherein he denied the averments made in the plaint. He claimed to be the owner and in actual possession of the land; he further claimed that the suit was not maintainable. The suit was eventually decreed in favour of the plaintiff. Since the petitioner was aggrieved by the judgment and decree in favour of the plaintiff, he filed an appeal before the First Appellate Court. The First Appellate Court set aside the judgment and decree, and remanded the case back to the learned trial Court for framing additional issue. It is during this proceedings, that the petitioner filed an application under Order VI Rule 17 CPC for wanting to amend his written statement. However, by order dated 03.11.2015, the learned Civil Judge has rejected the application. Hence this petition before this Court.

Smt. Rekha Patil, the learned counsel for the petitioner, has strenuously contended that since a typographical mistake has occurred with regard to the name of the testator, who had written the Will dated 10.02.1996, the typographical error was sought to be corrected by filing the application for amendment. According to her, the alleged Will was not written by Smt. Chanabasawwa, W/o. Muppinappa, but was, in fact, written by Smt. Kotramma, W/o. Kotraiah. Therefore, merely the names had to be changed. Thus, the correction would not have changed the nature of the case, and would not have led to any delay in the conclusion of the trial. Moreover, she has relied upon the case of Mahila Ramkali Devi and Others Vs. Nandram and Others and pleaded that the amendment should be permitted in the interest of justice. A technical view should not be taken by the Court for denying the amendment. According to her, the learned Civil Judge has taken a technical view while rejecting the application for amendment. Hence the impugned order deserves to be set side by this Court.

Heard the learned counsel for the petitioner and perused the impugned order.

Admittedly, a civil suit was allowed in favour of the respondent-plaintiff. Undoubtedly, the appeal was filed by the petitioner himself; the case was remanded back to the learned trial Court for framing of an issue for recording additional evidence on the said issue and to pass the necessary judgment thereafter. Thus, during the pendency of the entire civil suit, from the year 2008 till the decision of the civil suit, the petitioner was well aware of the facts and circumstances of the case.

A bare perusal of the impugned order clearly reveals that the learned Civil Judge has noticed the fact that, prior to filing the present application for amendment, the petitioner had already filed the interim application, namely I.A.XI along with an affidavit. In the affidavit, the petitioner had taken the stand that the Will, through which he claims to have the right and interest in the property in question, was signed by Smt. Chanabasawwa, W/o. Muppinappa. The said interim application was, in fact, allowed by the learned Civil Judge. It is only subsequently that the petitioner, through the proposed amendment, is trying to change his stand. According to the amendment application, the petitioner claims that, in fact, the Will had been signed by Smt. Kotramma, W/o. Kotraiah, instead of by Smt. Chanabasawwa, W/o. Muppinappa.

It is under these circumstances, that the learned Civil Judge has concluded that the petitioner is trying to change his stand before the learned trial Court. Moreover, if the amendment were allowed, it will change the defence that the petitioner had taken earlier.

Furthermore, he has not produced any alleged Will written by Smt. Kotramma, W/o. Kotraiah. Most importantly, the petitioner could not be oblivious of the fact as to who is the real testator of the Will. After all, the petitioner had fought the entire civil suit in the first inning, has filed the interim application, namely I.A. No. XI, where he had categorically stated that the testator was Smt. Chanabasawwa, W/o. Muppinappa. Thus, the learned Civil Judge was certainly justified in concluding that the amendment cannot be allowed under the peculiar facts and circumstances of the case.

In the case of Mahila Ramkali Devi and Others (supra), the Hon''ble Supreme Court has certainly opined that "the procedure of law is handmaid to administration of justice and cannot be permitted to interfere with the justice". Therefore, the Court should be liberal while permitting amendments. There can be no doubt about the principle laid down by the Hon''ble Supreme Court. However, this Court is of the opinion that the learned Civil Judge has not taken a hyper-technical view of the amended application. Since the petitioner had taken a categorical stand while filing I.A.XI, which was duly allowed in his favour, the petitioner cannot claim that there has been a "typographical error" or a mere negligence committed by him. To permit the petitioner at this stage of the suit, would be to permit him to introduce new facts and to raise a new defence. The said course would unnecessarily delay the conclusion of the trial. Moreover, a litigant who has been sleeping over his rights and interest cannot expect the Court to rush to his rescue. If the petitioner was fully aware of the fact that the alleged Will was written by Smt. Kotramma, W/o. Kotraiah and not by Smt. Chanabasawwa, W/o. Muppinappa, he was expected to bring the said fact to the notice of the learned trial Court at the very first stage of filing his written statement. After all, his entire claim to the property in dispute is on the basis of the alleged Will. The petitioner could not have been ignorant of the actual facts of the case.

Lastly, the learned Civil Judge has also noticed the fact that the petitioner has filed the present application for amendment only after the rejoinder has been submitted by the respondent-plaintiff, denying the fact that Smt. Chanabasawwa had written the Will. According to the respondent-plaintiff, since Smt. Chanabasawwa had already gifted the property on 01.03.1958, in favour of the parents of the respondent-plaintiff, she could not have bestowed the said property to the petitioner through a Will. It is only when this fact was brought to the notice of the Court, that the petitioner has cleverly tried to change his stand by filing the application for amendment. The subterfuge employed by the petitioner cannot be permitted to succeed.

For the reasons stated above, this Court does not find any merit in the present petition.

This petition is, hereby dismissed.