Ashok B. Hinchigeri, J.
1. W.P. Nos. 18982 and 20179 of 2016 are clubbed, heard together and are being disposed of by this common order, as the questions of facts and law involved are similar in both the petitions.
2. The petitioner has called into question the order dated 23-4-2015 (Annexure-A) passed on I.A. No. 2 in O.S. No. 122 of 2004 renumbered as O.S. No. 868 of 2011. By the said order, the Trial Court dismissed the petitioner's I.A. for amending the plaint in O.S. No. 868 of 2011.
3. Smt. S.R. Anuradha, the learned Counsel for the petitioner submits that the I.A. for amendment is made even before the commencement of the trial. She submits that the Trial Court has erred in attributing eight years delay to the petitioner. She submits that in the instant case, the cause of action for seeking the amendment of the plaint has accrued to the petitioner only on 7-3-2012 on which date O.S. No. 122 of 2004 renumbered as O.S. No. 868 of 2011 was clubbed with the respondent's O.S. No. 1455 of 2006. She submits that if the amendment application is not allowed, it would only lead to the multiplicity of proceedings. She submits that if the impugned order dismissing the petitioner's application for amendment is upheld, then the petitioner has the liberty of filing a fresh suit.
4. She sought to draw support from the Apex Court's judgment in the case ofPankaja and Another v. Yellappa (deceased) by L.Rs and Others, 2004 (6) Kar. L.J. 169 (SC) : AIR 2004 SC 4102 : (2004) 21 AIC 16 (SC) : 2014 AIR SCW 452
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: V (2004) SLT 30 : 2004 (6) ACE/SCJ 518 : (2004)6 SCC 415, wherein it is held that an amendment sub-serving the ultimate cause of justice and avoiding the further litigation should be allowed. It is further held therein that if the necessary factual basis in regard to the title is already laid down in the plaint, although controverted by the defendant in his written statement, the grant of permission to amend the plaint does not amount to the introduction of a relief different from the one sought in the plaint.5. Nextly she relies on the Hon'ble Supreme Court's judgment in the case ofSampath Kumar v. Ayyakannu and Another AIR 2002 SC 3369 : 2002 (4) SCJ 321 : (2003) 1 AIC 65 (SC) : V (2002) SLT 360 : (2002)7 SCC 559, wherein it was held that while considering the question of delay in filing the amendment application what has to weigh with the Court is not only the period from the date of the institution of the suit but also the stage at which it is filed. The pretrial amendment application has to be liberally allowed.6. She also draws my attention to the Apex Court's judgment in the case ofAnathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs and Others AIR 2008 SC 2033 : 2008 AIR SCW 2692 : IV (2008) SLT 724 : 2008 (5) SCJ 359 : (2008)4 SCC 594. Paragraphs 13.3 and 14 read out by her from the said decision are extracted herein below:"13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the Court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."7. Sri M.B. Chandrachooda, the learned Counsel for the respondent submits that the written statement in O.S. No. 122 of 2004 (subsequently renumbered as 868 of 2011) is filed on 31-5-2004. He read out the relevant averments in support of his submissions that the respondent claims to be the title-holder. He submits that the respondent filed O.S. No. 1455 of 2006 on 9-6-2006 seeking the relief of declaration that he is the absolute owner of the schedule property. He submits that in the said suit proceedings, the petitioner filed the written statement on 8-9-2006. He submits that the two suits - O.S. Nos. 1455 of 2006 and 868 of 2011 are clubbed and that the common trial has begun on 11 -4-2012. Although the respondent (P.W. 1) completed the examination-in-chief on 11-4-2012, the petitioner took nearly 3 years to cross-examine P.W. 1.8. He brings to my notice this Court's order dated 6-4-2015 passed in W.P. No. 10657 of 2015 which is disposed of by directing the Trial Court to dispose of both the suits within one year.9. Smt. Anuradha quickly joins issue with Sri Chandrachood and points out that the said order is passed without notice to the petitioner.10. Sri Chandrachooda submits that the petitioner (D.W. 1) has filed the affidavit by way of examination-in-chief on 14-7-2016. He submits that the documents in Exs. D. 1 to D. 49 are marked. Thereafter the matter was posted for cross-examination of D.W. 1 on 18-7-2016. Without tendering herself for cross-examination, D.W. 1 filed three I.As. - one for recalling D.W. 1 for the purpose of adducing further examination-in-chief, second I.A. for the production of documents and the third I.A. for recalling the order dated 14-7-2016.11. He submits that the Trial Court is justified in holding that there is eight years' delay in filing the application for amendment of the plaint. He submits that the limitation cannot be reckoned from the date of clubbing of the two suits on 7-3-2012; it has to be reckoned from 8-9-2006, the date of filing the written statement in O.S. No. 122 of 2004 and from the date of service of notice on the petitioner in O.S. No. 1455 of 2006.12. In W.P. No. 20179 of 2016 the petitioner's grievance is over the order dated 4-3-2016 passed by the same Trial Court on I.A. No. 11 in O.S. No. 1455 of 2006, turning down the petitioner's request for permission to file the additional written statement.13. Smt. S.R. Anuradha, the learned Counsel for the petitioner submits that the legal representative of the deceased petitioner is entitled to file the additional written statement as certain developments have taken place subsequently and which are personal to the legal representative of the deceased petitioner, more particularly the information pertaining to the execution of the Will by the deceased petitioner in favour of the legal representative.14. Sri Chandrachooda, the learned Counsel for the respondent submits that the additional written statement is verbatim reproduction of the petitioner's I.A. for the amendment of the written statement which was rejected by the Trial Court and upheld by this Court in W.P. No. 10274 of 2014. He submits that the order rejecting the amendment application is sought to be overcome by filing the proposed rejected additional written statement. He submits that Order22, Rule4(2) of Code of Civil Procedure, 1908 makes it very clear that any defence that the legal representative may take has to be appropriate to his character as the legal representative.15. He relies on this Court's order dated 9-4-2010 passed in W.P. Nos. 15637 and 15638 of 2009. Paragraph 4 of the said decision read out by him is as follows:"It is not in dispute that an application was filed by the original defendant by filing the application to amend the written statement for raising the plea of counterclaim. The paragraph in the said application seeking counterclaim was numbered as 5(A). The said application came to be dismissed on 8-11-2006. The said order remained unquestioned. As aforementioned, in the meanwhile, the original defendant died and the legal representatives were brought on record. In the additional written statement, they have raised the very plea as was sought to be raised by the original defendant by filing additional written statement in para 6. The contents of para 5-A of earlier application and para 6 of additional written statement are word by word same. The Apex Court in the case ofBal Kishan v. Om Parkash and Another, AIR 1986 SC 1952, while interpreting sub-rule (2) of Rule4Order22of CPC has laid down as under:"Sub-rule (2) of Rule4Order22authorises any person who is brought on record as the legal representative of a defendant to make any defence appropriate to his character as legal representative of the deceased defendant. The said sub-rule authorises the legal representative of a deceased defendant or respondent to file an additional written statement or statement of objections raising all pleas which the deceased tenant (defendant) had or could have raised except those which were personal to the deceased defendant or respondent."16. He relies on this Court's decision in the case ofGlen Fredric Picardo v. Rodney Picardo and Others, ILR 2010 Kar. 4522 : 2010 (4) AIR Kar. R. 476 : AIR 2011 Kant. 13to advance the contention that the Order8, Rule9of CPC does not provide for the reply by the plaintiff subsequent to the written statement of a defendant. According to him, the additional written statement cannot be permitted to be filed by the legal representative of the deceased defendant.17. The submissions of the learned Counsel have received my thoughtful consideration. The question that falls for my consideration in W.P. No. 18982 of 2016 is whether the Trial Court is justified in dismissing the petitioner's I.A. No. 2 for the amendment of the plaint. Admittedly, the defendant has filed the written statement in O.S. No. 122 of 2004 on 31-5-2004. The plain reading of the written statement reveals that a cloud is raised over the title of the petitioner. Furthermore, the respondent files O.S. No. 1455 of 2006 on 9-6-2006 indicating his title. Immediately after receiving the written statement in O.S. No. 122 of 2004 or at least after receiving the plaint in O.S. No. 1455 of 2006, the petitioner ought to have made the I.A. for amendment of the plaint.18. The submission that the petitioner gets the firm cause of action to file the amendment application only when the two suits are clubbed is lacking in acceptability. In the case of Anathula (supra), the relevant portions of which are extracted herein above, the Apex Court stated that where the denial of the title by the defendant or where the challenge to the plaintiff's title raises a cloud on the title of the plaintiff's property, then there is a need for the plaintiff to amend the plaint and convert the suit one for declaration. I also notice with concern that there is inordinate delay on the part of the petitioner in cross-examining the respondent and also in leading the petitioners' evidence.19. At this juncture, it is also necessary to refer to this Court's order dated 6-4-2015 passed in W.P. Nos. 10657 and 13824 of 2015, where there is a direction to dispose of the two suits within one year. The petitioner cannot contend with any rate of success that as the said order was passed without any notice to the petitioner, she need not show any sense of dispatch to go on with the matter. The said order is not challenged by her by way of appeal. That apart, even in the absence of any order from this Court, the parties to the suit should be anxious to go on with the matter and invite the judgment of the Court. The suit filed by the petitioner is of 2004 vintage and the suit filed by the respondent is of 2006 vintage.20. I.A. No. 2 for the amendment of the plaint is filed on 25-6-2014 and the trial has commenced on 11-4-2012. For all the aforesaid reasons, I hold that the Trial Court is justified in dismissing the petitioner's I.A. No. 2. As far as the submission urged on behalf of the petitioners that it is still open to the petitioner to file the suit is concerned, I do not propose to express any opinion. If the petitioner has the liberty in law of filing the suit, she may exercise it. If she files one such suit, it shall also be open to the respondent to resist the same by taking such defences as are permissible in law. It would again be for the Trial Court to take a call on the maintainability or otherwise of the fresh suit, if ever instituted.21. The issue that falls for my consideration in W.P. No. 20179 of 2016 is whether the Trial Court is justified in rejecting I.A. No. 11 filed by the L.R. of the petitioner for permission to file the additional written statement? The averments in the additional written statement filed with I.A. No. 11 by the L.R. of the petitioner and the contents of I.A. No. 6 and its supporting affidavit filed by the original petitioner are substantially similar. The L.R. of the deceased defendant can raise the defence appropriate to his character as the L.R. of the deceased defendant. As held by this Court in W.P. Nos. 15637 and 15638 of 2009, if the original defendant's endeavour for incorporating the plea of counterclaim itself was unsuccessful, it is not open to his L.R. to make the similar application in the form of the LA. for filing the additional written statement.22. In both the suits, the rights of Leelavathi and Mahadevaiah are required to be adjudicated. The rights of the L.Rs of Leelavathi in the property in question cannot be higher or more than those of Leelavathi herself under whom the L.Rs claim. The Will and Codicil said to have been executed by Leelavathi in favour of her L.R. is not in dispute at this juncture. Based on the said Will and Codicil, the rights of Leelavathi and Mahadevaiah cannot be adjudicated. Therefore, the Will and the Codicil have no relevance for resolving the lis between the original petitioner (plaintiff in O.S. No. 122 of 2004 renumbered as O.S. No. 868 of 2011 and the defendant in O.S. No. 1455 of 2006) and Mahadevaiah (plaintiff in O.S. No. 1455 of 2006 and defendant in O.S. No. 122 of 2004 renumbered as O.S. No. 868 of 2011).23. In the result, both the writ petitions are dismissed but subject to the observations made in paragraph 20 supra. No order as to costs.
"2017 (4) KantLJ 160,"