State of Karnataka and Others vs Narayan Ganesh Kamat and Others

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 18.08.2012 passed on I.A. No. 11 in O.S. No. 155/1995.

The petitioner - State is the defendant in the said suit. The suit in question had been disposed of at the first instance, but has subsequently been remanded for reconsideration by the judgment dated 28.03.2012 in RSA No. 5175/2008. On remand, the plaintiff has filed an application under Order VI Rule 17 seeking to amend the plaint in I.A. Nos. 10 and 11 seeking to incorporate the amendment and indicate the quantum of claim made in the plaint. The Court below by the order dated 18.08.2012 has allowed the applications. The defendants claiming to be aggrieved by the same are before this Court.

By the amendment sought, the plaintiff is seeking to indicate the nature of the claim and the quantum of the claim that is sought to be incorporated in the prayer. It is to be noticed that when the suit was filed at the first instance, the plaintiff had quantified the amount of Rs. 51,000/- and has further indicated that the claim is also such sum that may be due from the defendant -Government, on calculation of the amounts with interest and damages. While decreeing the suit at the first instance, the Court below had directed the quantification of the amount in the final decree proceedings. In the final decree proceedings, the Commissioner had been appointed and the quantification was made. Against the said order passed therein, an appeal had been filed. Though, at the first instance, the judgment and decree had not been assailed, the petitioner-Government thereafter assailed the judgment and decree dated 25.11.2005 by filing RSA No. 5175/2008. In that view, when the appeal was taken up for consideration, a Division Bench of this Court was of the view that the procedure adopted at the first instance to allow the quantification of the amount in the final decree proceedings was not justified and therefore on setting aside the judgment had remitted the matter to the Court below for determination of the amount as claimed by the plaintiff and thereafter to pass an appropriate judgment and decree. It is in that view, the plaintiff has filed an application seeking amendment to incorporate the claim amount as has been quantified by the plaintiff.

The learned Government Advocate while assailing the order passed by the Court below allowing the amendment would contend that the amendment as sought if permitted would amount to entertaining the claim which is barred by limitation. In that view, it is contended that at this stage, the amount which is sought to be incorporated by way of amendment cannot be permitted, more particularly in a circumstance, where such claim is based on the quantification made by the Commissioner in the final decree proceedings, wherein the quantification itself is contrary to law in as much as certain amounts which are not admissible has been taken into consideration by the Commissioner and therefore such quantification cannot be considered to be authentic or final.

The learned counsel for the respondent would however seek to sustain the order passed by the Court below by referring to the sequence till the matter had been remitted in the second appeal and the need for amending having arisen in the circumstance.

Having noticed the contention and the sequence of events, the position that emerges is that the amendment has become necessary in view of the judgment passed in RSA No. 5175/2008, wherein it was indicated that the quantification is to be made in the suit itself, before a decree is passed. The fact that when a decree based on the accounts is sought, it would be open for the plaintiff to prove such amount to be done, which could be quantified at that stage and thereafter a decree be passed based on the accounts subject to the payment of the difference of the Court fee.

In the instant case, though by the amendment the amount has been quantified and even though the plaintiff contends that such quantification is based on the report submitted by the Commissioner, the said quantification cannot be considered as the amount to which the defendants have admitted or as having been established to be done. The result of the amendment is only to the effect that at the first instance the plaintiff had quantified such amount which was within their knowledge and had sought for a further decree based on the accounts that would be proved before the Court below. In a normal circumstance, at the first instance itself, the trial Court was required to analyze the evidence and thereafter quantify the amount based on the evidence tendered. Since the trial Court has not adopted the said procedure and had left to be done in the final decree proceedings, the Division Bench of this Court has not sustained the judgment of the Court below.

The resultant effect of the same is that irrespective of the quantum as prayed by the plaintiff, the same is required to be proved, further establish that the claim is within the period of limitation and only thereafter the trial Court would proceed to pass a judgment and decree in respect of his claim. Therefore, in a circumstance where the matter had been remitted to the Court below after holding that the earlier procedure adopted by the trial Court was not justified and in such circumstance, when the plaintiff has sought for amendment to quantify the amount and prove the same before the Court below before a decree in that regard is passed, certainly the Court below was justified in allowing the amendment, since in any event, the amount as claimed would have to be proved by the plaintiff and establish that the plaintiff is entitled to a decree in that regard. In the said process all contentions raised by the defendants will also be considered by the Court below and thereafter a judgment and decree would be passed. Therefore, the amendment being allowed would not prejudice the case of the petitioners herein. Hence, I see no reason to interfere with the orders passed by the Court below.

Accordingly, the petitions being devoid of merits stand disposed of.