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Bharat Bhushan Narang & Others v/s Ashok Kumar Manchanda & Others

    Writ Petition No. 9286 of 2017 (GM-CPC)

    Decided On, 04 April 2017

    At, High Court of Karnataka


    For the Petitioners: Dhyan Chinnappa, Senior Counsel for Arun Kumar, Advocate. For the Respondents: S.S. Naganand, Senior Counsel, Vikram, Advocate.

Judgment Text

Aravind Kumar, J.

1. Defendants 5 to 9 in O.S. No. 5053 of 1990 being aggrieved by order dated 1-2-2017 allowing the application filed by the plaintiff under Order6, Rule17of Civil Procedure Code, 1908 to amend the plaint are before this Court.

2. Parties are referred to as per their rank in the Trial Court.

3. Plaintiff has instituted the suit in question i.e., O.S. No. 5053 of 1990 for the relief of partition and separate possession of suit properties as described in Schedule A and Schedule B of the plaint and claiming.share of th and 5/12th respectively. Prayer for declaring the Will dated 22-1-1988 said to have been executed by the father of plaintiff and defendants 1 and 3 is also sought on the ground that it is a forged document. When the matter was at the stage of final arguments, an application under Order6, Rule17of CPC came to be filed by the plaintiff seeking amendment of plaint and Trial Court by order dated 1-2-2017-Annexure-A has allowed the application. Being aggrieved by the same, defendants 5 to 9 are before this Court.

4. I have heard the arguments of Sri Dhyan Chinnappa and Sri S.S. Naganand, learned Senior Advocates appearing for the parties.

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br />5. Notice to respondents 2 to 4 namely defendants 1, 3 and 4 is dispensed with.6. By consent of learned Advocates appearing for the parties, the matter is taken up for final disposal though listed in preliminary hearing.7. It is the contention of Sri Dhyan Chinnappa, learned Senior Counsel appearing for defendants 5 to 9 that Trial Court has erred in not considering the objections filed by defendants 7 to 9 in proper perspective and amendment sought for would alter the very nature of the suit and the plaintiff is attempting to seek for the relief, which they have virtually waived at the initial stage of filing of the suit itself and the relief sought for under the proposed amendment is barred by limitation and there has been inordinate delay. He would contend that when plaintiff himself has consented for the transaction, the same is now sought to be assailed by the proposed amendment. It is also contended that plaintiff had given up his claim in respect of shares transferred in favour of defendant 4 in the original plaint by not seeking for such transfer being either illegal, void or not binding on them, though it was specifically pleaded by him with regard to said transaction in paragraph 14 of the plaint and as such, the plaintiff cannot be now permitted to reintroduce the such pleading by proposed amendment. He would also contend that plaintiff in a suit for partition does not have any vested right in the movables properties of the subject-matter of suit and doctrine of lis pendens would inapplicable and as such proposed amendment sought for incorporating plea with regard to transfer of shares during pendency of suit was liable to be rejected. It is also contended that plaintiff has not explained as to the prejudice or injury that would be caused, if the proposed amendment is not allowed and the very fact that plaintiff had not claimed any relief with regard to transfer of share by defendant 1 in favour of defendant 4 would itself clearly indicate that plaintiff had waived his right and same analogy would be applicable insofar as other transactions of shares also and as such, by relying upon the judgments in: (i)L.C. Hanumanthappa (since dead) represented by his L.Rs v. H.B. Shivakumar, (2016) 1 SCC 332; (ii)A. Ilyas Ahmed v. Mohammed Ashfaque, 2016 SCC Online Kar. 5994; (iii)K.V. Sathyamurthy and Others v. K.G. Srinivasa and Others, 2016 (2) Kar. L.J. 325; (iv)Van Vibhag Karamchari Griha Nirman Sahkari Sansthan Maryadit (Regd.) v. Ramesh Chander and Others, judgment dated 19-10-2010 in SLP (Civil) No. 1518 of 2008; (v)Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others, (2009) 10 SCC 84and (vi)Radhika Devi v. Bajrangi Singh and Others, (1996) 7 SCC 486, he would pray for allowing the writ petition and for setting aside the impugned order allowing the application for amendment of plaint.8. Per contra, Sri S.S. Naganand, learned Senior Counsel appearing for the respondents has supported the order passed by the Trial Court contending that transaction of transfer of shares was never brought to the notice of the Trial Court at any point of time by any of the defendants and only when defendants 8 and 9 appeared after filing an application for getting themselves impleaded and filed their written statement, it was brought to the notice of the Court with regard to transfer of shares having taken place and said written statement had been filed in the year 2013 and within the period of 3 years thereof, application for amendment of plaint came to be filed and there is no delay or laches and mere non-seeking of prayer relating to earlier transaction between defendant 1 and defendant 4 being declared as null and void would not prevent the plaintiff to seek such prayer relating to subsequent transaction which has taken place between parties and as such, allowing the amendment would not be cause any prejudice to the defendants, particularly when none of the defendants had at any point of time indicated about such transactions having taken place and as such, order of the Trial Court allowing the application cannot be found fault with. In support of his submission, he has relied upon the judgments in the matter of: (i)Surender Kumar Sharma v. Makhan Singh, (2009) 10 SCC 626and (ii)Vasudev Ramchandra Shelat v. Pranlal Jayanand Thaker and Others, (1974) 2 SCC 323.9. Having heard the learned Advocates appearing for the parties and on perusal of the records, it would disclose that the plaintiff has filed the suit in question for partition and separate possession in respect of Schedule A and Schedule B properties. The third prayer which has been sought for in the plaint reads as under :"Declare that the Will dated 22-1-1988 (Twenty Second of January Nineteen Eighty Eight) alleged to have been executed by late Sri Munshilal Manchanda is a forgery."10. It is the specific case of the plaintiff that the said Will executed by the father of plaintiff and defendants 1 and 3 is forged and as such, the defendants do not have any right to act upon said Will. In fact, plaintiff had also specifically pleaded with regard to transfer of 200 shares of defendant 6-Company held by deceased Sri Munshilal Manchanda having been transferred by defendant 1 in favour of defendant 4 at para 14 of the plaint. When the very Will under which the transfer of shares have been taken place is under question, specific prayer for declaring the transaction which took place pursuant to the said Will would not wipeout the right of the plaintiff.11. It is needless to state that in the event of plaintiff being able to establish that Will dated 22-1-1988 executed by his father is a forged document which is also an issue at large before Trial Court, consequences would flow. Merely because said transaction has taken place between defendants 1 and 4 based on the said Will and no prayer has been sought for by the plaintiff would not prevent the plaintiff from seeking for subsequent prayer, which is also be based on the said Will.12. In the instant case, as could be seen from the records, defendants 8 and 9 were not arrayed as parties when the suit was filed. They got impleaded themselves by filing an application on 6-6-2013. Written statement came to be filed by them on 19-10-2013 whereunder, it has been specifically pleaded by them that transfer of 340 shares of defendant 5-company by defendant 1 in favour of defendant 9 on 12-3-2007 and 16-6-2007, transfer of 200 equity shares of defendant 6-Company in favour of defendant 8 on 21-2-2008 by defendant 4 and 3026 equity shares of defendant 5-Company transferred in favour of defendant 9 by defendant 4 on 15-3-2007 and 16-6-2007 would not confer any right on defendants 8 and 9 as same is illegal, void, non est and not binding on the plaintiff.13. As could be seen from the plaint averments, plaintiff is resting his case by attacking the Will executed by his father on 22-1-1988. Though, subsequent transactions have taken place neither defendant 1 nor defendant 4 are disputing the fact that such transfers is not based on the said Will. But on the other hand they are asserting it to be so. As such, in amplification of existing pleadings, additional prayer has been sought for by the plaintiff in view of new facts having been brought on record by defendants 8 and 9 in their written statement.14. A bare reading of Order6, Rule17of CPC would indicate that it enables the parties to lis to amend the pleadings at any stage of the proceedings and Court would permit such amendment on such terms as may be just. Such amendments are permitted for determination of real controversy between the parties. Pretrial amendments are allowed as a matter of course. However, by virtue of amendment brought to proviso to Rule 17, post-trial amendment can be allowed only in the event of conditions stipulated under the proviso to Rule 17 being satisfied. Delay by itself cannot be a ground on which amendment can be rejected. However, such post-trial amendment would be refused, in the event of the said amendment is bared by limitation or third party rights having crystallised or it would cause great prejudice to the opposite parties.15. In the instant case, though plea of limitation has been raised to oppose the prayer for amendment of plaint, it emerges from the records that defendants 5, 6 and 7 were already on record and inspite of their knowledge about defendants 1 and 4 having transferred the shares in favour of defendants 8 and 9 in respect of those companies, yet they did not bring to the notice of the Trial Court or in other words they did not raise any plea in that regard. It is only when defendants 8 and 9 appeared and filed their written statement on 19-10-2013 these facts relating to transfer of shares came to light or in other words parties became aware of it and immediately prior thereto in their application for getting themselves impleaded, the details of such transfer was disclosed by the proposed defendants 8 and 9. As such, the application for amendment came to be filed on 16-10-2015 which was well within the period of three years. Assuming for the limited purpose that issue of limitation which was required to be considered by the Trial Court at the time of considering the application for amendment has not been considered, when examined by this Court it would disclose that said amendment was well within the period of limitation and as such, Trial Court has rightly allowed the application for amendment.16. Though Sri Dhyan Chinnappa, learned Senior Counsel appearing for the petitioner has vehemently contended that "doctrine of relation back" would not be applicable insofar as present amendment is concerned, Sri S.S. Naganand, learned Senior Counsel appearing for the respondents has fairly conceded that there cannot be no dispute with regard to said proposition of law inasmuch as the very transaction involved would disclose having taken place subsequent to filing of the suit i.e., in the year 2007 and as such, question of indicating in the impugned order that amendment would take place from the date of such amendment being allowed by specifically indicating the same would not arise. Since the very transaction which is sought to be assailed by the plaintiff under the proposed amendment is a transaction of the year 2007-2008 which undisputedly took place during the pendency of the suit, it would be effective from the date of such transaction only.17. As to whether the plaintiff would be entitled for the prayer sought for in the plaint, is an issue which has to be gone into by the Trial Court. At this stage, no opinion can be expressed on the said plea.For the afore-stated reasons, this Court is of the view that there is no merit in this writ petition. Hence, writ petition stands rejected by confirming the impugned order dated 1-2-2017 passed by the Trial Court.Ordered accordingly.

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