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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the Plaintiff in O.S. No. 3879/2003 pending on the file of City Civil Court, Bangalore. The Respondents are the Defendants in the suit.W.P. No. 31566/2010 has been filed to quash the order dated 12.08.2010 passed on I.A. No. 5 filed under Order 6 Rule 17 CPC by the Plaintiff to amend the plaint.W.P. No. 35162/2010 has been filed questioning the order dated 10.11.2009 passed on I.A No. 13 filed under Order 6 Rule 17 CPC to amend the plaint. Both the said applications having been dismissed, the Plaintiff has filed these writ petitions.
Heard the learned Counsel on both sides and perused the writ petition papers.
The point for consideration is:
Whether there is any procedural impropriety and irrationality on the part of the trial court in dismissing I.A Nos. 5 & 13?
The Petitioner filed the suit on 05.06.2003 against the 1st Respondent for the relief of permanent and mandatory injunctions in respect of the property shown in the schedule of the plaint. The suit and the applications were contested by filing the written statement and statement of objections by the Defendant. Trial court having declined to grant an order of temporary injunction, the Plaintiff filed MFA 6994/2004. Upon disposal of the said appeal, the Plaintiff filed I.A No. 5 on 14.12.2004 seeking permission of the court to amend the plaint by incorporating the proposed pleading i.e., para 11(b) and the additional prayer (a). Plaintiff filed I.A No. 6 under Order 1 Rule 10 CPC on 1.9.09.2005 to implead the 2nd Defendant. The said application was allowed on 20.10.2005. The Plaintiff filed I.A No. 7 under Order 6 Rule 17 CPC seeking amendment of the plaint and the same was allowed on 27.10.2006. The 2nd Defendant has filed written statement on 17.03.2007. Issues having been framed, the trial has commenced on 29.08.2007. The Plaintiff filed I.A No. 13 under Order 6 Rule 17 CPC on 05.06.2009 seeking amendment of the plaint i.e., the very amendment, which he had proposed in I.A. No. 5. The said application was dismissed on 10.11.2009.
Thereafter, the Plaintiff has filed memo dated 30.11.2009 to consider I.A No. 5. The trial court has passed the order dated 12.08.2010 in I.A. No. 5.
I.A No. 5 and I.A No. 13 were filed by the Plaintiff seeking amendment of the plaint to incorporate in the plaint, an additional plea and the prayer for declaration.
Both the applications have been opposed by the Defendants. Without considering and disposing off I.A No. 5, the trial court has considered and disposed off I.A No. 13 on 10.11.2009. There is procedural impropriety committed in considering and disposing off I.A No. 13 when I.A No. 5 for the very same prayer was pending. The main reason for rejecting I.A. No. 5 is the order passed on 10.11.2009 rejecting I.A No. 13.
The court while considering an application for amendment has to keep in mind that it has discretion to allow a party to amend a pleading. The principles which guide the court in exercise of the discretionary jurisdiction is that, multiplicity of proceedings should be avoided, the amendment which do not totally alter the character of an action should be granted, while also taking care to see that injustice and prejudice of an irremediable character is not inflicted upon the opposite party under pretence of amendment. The court also has to keep in view the proviso to Rule 17 of Order 6 Code of Civil Procedure, which lays down that, no application for amendment shall be allowed after the commencement of trial, unless the court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. Whether a party has acted with due diligence or not should also be examined with reference to the facts and circumstances of each case. The court also should examine whether on account of unforeseen situations it has become necessary for the party to seek amendment of the pleading. Though the proviso limits the power to allow the amendment after the commencement of trial, but still grants discretion to the court to allow the amendment if it feels that the party could not have raised the matter before commencement of trial inspite of due diligence.
In view of the procedural impropriety committed by the trial court, in keeping I.A No. 5 undisposed and in disposing off I.A No. 13 and subsequently rejecting I.A No. 5 on account of the order passed on I.A No. 13, there appears to be miscarriage of justice. The Petitioner has also been the cause for non bringing to the notice of the court about the pendency of I.A.5, seeking the very same relief. The Petitioner has contributed for the delay, in disposal of the suit and should compensate the Respondents by paying cost of ` 5,000/- in the trial court within one week from today.
In the result, the writ petitions stand allowed and the impugned orders stand quashed.
The trial court is directed to consider I. As No. 5 and 13 keeping in view the observations made supra and in accordance with law. No opinion is expressed with regard to the tenability or otherwise of I.A. Nos. 5 and 13.
Contentions of both parties are kept open for consideration.
The trial court to pass order on I.A. Nos. 5 and 13 within a period of two weeks from the date a copy of this order is placed on its record by either of the parties.