Gayathri Womens Welfare Association VS Gowramma & Anr.

JUDGMENT

SURINDER SINGH NIJJAR, J.

1.     This appeal is directed against the final judgment and decree/order dated 23rd of July, 2008 passed by the learned Single Judge of the High Court of Karnataka in RFA No.1732 of 2005 filed by the respondents whereby the High Court in part modified and in part set aside the judgment and decree dated 4th August, 2005 passed by the Vth Additional City Civil Judge, Bangalore in OS No.163 of 1999.

2.     The short issue which arises before us is whether the High Court was justified in permitting the respondents to raise the counter claim at a stage after the issues had been framed by the trial court.

3.     In order to decide the aforesaid issue, it is not necessary to make a detailed reference to the chequered history of the litigation between the parties. We may, however, briefly narrate the facts.

4.     The appellants herein were the plaintiffs before the trial court and the respondents were the defendants.

5.     The appellant is an Association registered under the Societies Registration Act. The appellant contends that it purchased 2 acres 30 guntas of land in Sy.No.110/2 of Laggere Village (the schedule property) under an agreement of sale dated 26th November, 1988 from its vendors Sri B.C. Vijayakumar and Smt. Mayamma. In part performance of this agreement of sale, the appellant was put in possession of the schedule property. The appellant and is members are in peaceful possession and enjoyment of the same. In the month of December, 1998, the respondents tried to interfere with the appellant's possession and enjoyment of the schedule property and therefore, they filed O.S.No.163 of 1999 for grant of decree of permanent injunction.

6.     The respondents 1 and entered appearance before the trial court, filed written statement inter alia contended that they are the owners of a portion of land in Sy.No110/1of Laggere village and the appellants are trespassing into their property. The respondents, therefore, opposed the claim of the appellants. On the basis of the pleadings, the trial court framed the following three issues for its consideration:

a.     "Whether the appellant proves that it has been in lawful possession of the suit schedule property ?

b.    Whether the appellant proves interference? 3. To what order and reliefs the parties are entitled ?

1.      

2.      

3.      

4.      

5.      

6.      

7.     "Before the trial court, the appellant examined six witnesses as PWs1 to 6 and got marked Exs.P1 to P58. The respondents examined one witness as DW-1 and got marked Ex.D1 to D44. The trial court after hearing both the parties and on appreciation of the pleadings oral and documentary evidence on record held that the appellants are in peaceful possession and enjoyment of the schedule property; there is interference by the respondents and consequently, decreed the suit of the appellants for permanent injunction vide judgment dated 4th August, 2005.

8.     Aggrieved by this judgment and decree of the trial court, the respondents approached the High Court of Karnataka in RFA No.497 of 2002. The High Court by its judgment dated 18th June, 2002 allowed the appeal, set aside the judgment and decree of the trial court and remanded the matter to the trial court for fresh disposal in accordance with law. The High Court while remanding the matter observed as under : "Therefore, keeping in view the submissions made, I deem it desirable that fresh survey is to be carried out in this suit by the Assistant Director of Land Records (hereinafter referred to as `ADLR') by giving notice to both the parties and in their presence the survey is to be made. The appellants are however entitled to produce the records of the survey done earlier as an additional document before the trial Court and after survey, considering the reports of the Surveyor and the additional documents, if any, and if necessary by allowing oral evidence, the trial court shall dispose of the suit in accordance with law.

9.     " After remand from the High Court, the respondents amended their written statement and incorporated counterclaim to direct the appellants to demolish the structures put up subsequent to passing of the status quo order by the trial Court on the schedule property mentioned in the written statement. To this counter claim of respondents, the appellants filed written statement. On the basis of the amended pleadings, the trial court framed the following two additional issues:

a.     "Whether the respondents prove that the appellant Association have erected temporary sheds on the schedule property subsequent to passing of interim order in the above said suit.

b.    Whether the respondents are entitled to the relief of Mandatory Injunction by way of counter claim."

10.  After remand and framing of additional issues, both the parties adduced oral evidence and produced additional documents. Pursuant to the directions issued by the High Court in RFA No.497 of 2002, the trial court appointed Assistant Director of Land Records (hereinafter referred to as `ADLR') as Court Commissioner to survey the schedule property in the presence of both the parties. Accordingly, the Court Commissioner conducted survey of the schedule property and submitted his report to the trial court. The Court Commissioner was examined as CW-1 and through him three documents came to be marked as Ex.C1 toEx.C3.

11.  Again the trial court after hearing both the parties and upon appreciation of the pleadings, oral as well as documentary evidence, on record decreed the suit of the appellants by judgment and decree dated 4th August, 2005.At the same time, the trial court dismissed the counterclaim filed by the respondents.

12.  Aggrieved by the dismissal of the counter claim, the respondents again came before the High Court in Regular First Appeal No.1732 of 2005. It was conceded before the High Court that the respondents do not have any grievance in so far as the trial court decreed the suit of the appellants. The only marginal issue raised by the respondents was that the judgment and the decree of the trial court had to be classified with reference to the survey conducted by the ADLR after the matter was remanded by the High Court. The other grievance made by the respondents was that the trial court had committed a serious error in not decreeing the counter claim. This, according to the respondents, has resulted failure of justice. In support of this submission, the respondents had relied upon the following judgments :- a. Ishwardas Vs. The State of Madhya Pradesh & Ors.1 b. Sampath Kumar Vs. Ayyakannu and Another. c. Jag Mohan Chawla & Anr. Vs. Dera Radha Swami Satsand & Ors.3 d. K. Moosa Hajji's Widow Smt. Kannadiyil Ayissu & Ors. Vs. Executive Officer Sree Lakshmi Narasimha Temple4. e. Nanduri Yogananda Lakshminarasimhachari & Ors. Vs. Sri Agastheswaraswamivaru. Surinder Singh Vs. Kapoor Singh (dead) through Lrs. & Ors.

13.  On the other hand, the appellants supported the judgment of the trial court on the ground that they had been put in possession of the land on the basis of the survey conducted in the year 1981, under the agreement of sale dated 26th November, 1988. The survey in 2003 after remand, by virtue of order of the High Court dated 18th June, 2002 in RFA No.497 of 2002, however, indicated that the appellants were in possession of a portion in Survey No.110/1 and another portion in Survey No.110/2. It was the case of the appellants that unless they are legally dispossessed by due process of law, they were entitled to continue in the portion occupied by them in Survey No.110/1. In support of their submission the appellants relied on a judgment of this Court in Rohit Singh & Ors. Vs. State of Bihar & Ors.7.

14.  Upon consideration of the entire issues, the High Court concluded that the plaint schedule property of the appellants to the extent of 2 acres and 30 guntas was in survey No.110/2 of Laggere Village. The High Court also held that the survey dated 24th March, 1981 on the basis of which the appellants had been put in possession on a portion of survey No.110/1 and portion of survey No.110/2had been set aside by the Joint Director of Land Records(hereinafter referred to as `JDLR) on 22nd June, 1998 in Appeal No.4/98. The High Court noted that this order of JDLR was prior to the filing of the suit before the trial court on 6th January, 1999. The fact that the appellants were in possession of portions of Sy.No.110/1 and Sy.No.110/2ought to have been pleaded in the original plaint.

It is further observed that, in any event, the appellants ought to have amended the plaint contending that they are in possession of a portion of Sy.No.110/1 and a portion inSy.No.110/2. Instead of making the necessary averments in the original plaint or amending the pleadings, the prayer of the appellants remained that they are in possession of 2 acres and 30 guntas in Survey No.110/2. The High Court further noted that the location of 2 acres and30 guntas in Survey No.110/2 was clearly specified in the survey sketch prepared by the ADLR in the year 2003. This is also depicted in Ex.C3. The High Court noted that the learned counsel for the respondents had no objection for grant of decree for permanent injunction in favour of the appellants, classified by the survey of 2003. Relying on the submission of learned counsel for the respondents, the High Court has confirmed the decree of permanent injunction in favour of the appellant, with the modification in reference to the survey sketch Ex.C3.

15.  With reference to the counter claim, the High Court observed that upon remand of the matter by the High Court in RFA No.497 of 2002, the trial court permitted the respondents to amend the written statement to incorporate the relief of counter claim for mandatory injunction. After the respondents had filed the amended written statement, the appellants filed the written statement to the counterclaim. On the basis of the amended pleadings, the trial court had framed additional issues. Upon the pleadings of the parties and upon consideration of the material on record, as noticed earlier, the trial court again decreed the suit of the appellants but dismissed the counter claim.

16.  During the pendency of the appeal before the High Court, the respondents filed an application seeking amendment of the written statement to include the additional prayer in the counter claim for recovery of possession of the suit schedule property falling within Survey No.110/1. The High Court noticed that in the normal course an application for amendment of the written statement at the stage of appeal from the original decree was not entertainable. However, since the dispute was pending between the parties from the year 1981 and the suit was pending since 1999, no injustice would be caused to the appellant if the prayer for possession was also permitted to be incorporated in the counter claim. Justification given for taking such a view was to avoid multiplicity of proceedings. To buttress its conclusion, the High Court relied on a judgment of this Court in the case of Sant Lal Jain Vs. Avtar Singh8. Allowing the appeal filed by the respondents, the High Court passed the following order :-

a.     "The appeal is partly allowed.

b.    The impugned judgment and decree of the trial court decreeing the suit of appellant for permanent injunction is modified specifying that the plaint schedule property as ABFH shown in green colour in survey sketch.

c.     The respondents or anybody claiming under them are hereby permanently restrained from interfering from the peaceful possession and enjoyment of the plaint schedule property as stated above.

d.    The impugned judgment and decree of the trial court dismissing the counter claim of the respondents is hereby set aside.

e.     The application filled by the respondents for amendment of the counter claim is hereby allowed.

f.     The learned counsel for the respondents to amend the counter claim of the written statement before the trial court within two weeks from the date of receipt of the order. The trial court to provide an opportunity to the appellants to file additional written statement for this counter claim and to decide the matter in accordance to both the parties.

g.    In view of the fact that already abundant evidence available on record and the matter is pending for a long time, a direction is issued to the trial court to expedite the matter and to dispose the counter claim of the of the respondents as expeditiously as possible and in any event not later than four months from the date of receipt of copy of this order." It is the aforesaid order which is challenged by the appellants herein.

17.  We have heard the learned counsel for the parties.

18.  Mr. Vishwanatha Shetty, learned counsel for the appellants submitted that the judgment of the High Court runs counter to the law laid down by this Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani9 and the judgment of this Court in Rohit Singh's case (supra). Learned counsel further submitted that the mere fact the respondents now wish to incorporate the prayer of possession of the suit schedule property falling within Survey No.110/1, is sufficient proof of possession of the property by the appellants. Therefore, the trial court had not committed any error in granting the decree of permanent injunction for the entire suit schedule property. The appellant and its members have built a number of residential building and their members are residing in those houses. Now if the respondents wish to take possession of the aforesaid property they would have to seek the necessary relief in appropriate proceedings, i.e., by filing a separate suit for possession. According to the learned counsel, the High Court had committed an error of jurisdiction in permitting an amendment of the counterclaim when the dispute had already been pending between the parties for more than 27 years. It is further the submission of he learned counsel that by now incorporating the prayer for possession, the respondents have successfully obliterated the decree passed in their favour by the trial court. He submits that by adopting such a circuitous route, the respondents are trying to avoid the legal objection including that the suit for possession is barred by limitation which would be open to the appellants, if such suit was to be filed now by the respondents with regard to the portion of the suit schedule property falling within Survey No.110/1.

19.  On the other hand, Mr. Balgopal, learned senior counsel appearing for the respondents also relied on certain judgments of this Court, in support of his submission that an amendment can be allowed by the court, at any stage of the proceedings notwithstanding the law of limitation. He has pointed out that the law is well settled that the amendments in the pleadings are to be liberally permitted by the court. The only rider is the court being satisfied that such amendment is necessary for the determination of the real question in controversy. In support of his submissions, the learned counsel has made particular reference to the judgment of this Court in Revajeetu Builders & Developers Vs. Narayana Swamy & Sons10 and Dhanpal Balu Lhawale Vs. Adagouda Nemagouda Patil

20.  Learned counsel by making a detailed reference to the factual situation has submitted that the boundaries of the land were fixed in the presence of the parties on 3rd March, 2000 by the ADLR. The order of the ADLR was upheld by the Revenue Authorities. The Karnataka Appellate Tribunal dismissed Appeal No.398 of 2001 filed by the appellants on 13th December, 2001. The order of the Tribunal was challenged by the appellants in the High Court of Karnataka in Writ Petition Nos.2661-64 of 2002.The High Court dismissed the aforesaid writ petition by order dated 4th March, 2002. In view of the above, the matter regarding budburst and fixing of boundaries and rights of interest over the respective portions of the land between the vendors of the appellants on the one hand and the respondents had attained finality.

21.  This apart, after the remand of the matter by the High Court in RFA No.497 of 2002, the ADLR again conducted the survey on 25th July, 2003. At that time, the survey showed only 27 constructions in the disputed area i.e. survey No.110/1. Only 16 constructions were in the land belonging to the appellants in survey No.110/2. The survey report of the ADLR clearly demonstrated that the appellants had encroached on the land belonging to the respondents. This had necessitated the amendment to the counter claim for incorporation of the plea for possession of the same. It was next submitted by the learned counsel that the High Court was fully justified in allowing the application under Order VI Rule 17 seeking amendment of the counter claim, the aforesaid application was filed along with RFA No.1732of 2005. According to the learned counsel, the order passed by the High Court under appeal was fully justified in the interest of justice.

22.  Learned counsel then submitted that the judgment of this Court in Rohit Singh's case (supra) is not applicable to the facts of this case. It is still further submitted by the learned counsel that the counter claim of the respondent is independent of the claim made by the appellants. It stands on a different footing. The counter claim is required to be treated as an independent suit in view of the provisions of Order VIII Rule 6A of the Code of Civil Procedure. Finally, it is submitted by the learned counsel that the appellants are not a bonafide litigants. Till date, the sale deed has not been executed in their favour by the vendors. They are raising all frivolous objections only on the basis of an alleged agreement for sale. According to the learned counsel, the appellants have been put up by the legal heirs of the original owners from whom the respondents had purchased the land.

23.  We have considered the submissions made by the learned counsel for the parties. The trial court upon a detailed appreciation of the evidence led by the parties concluded that on the basis of the material on record, it can be said that the possession of the appellant in respect of the plaint schedule property as against the respondents was long, settled and uninterrupted. On the basis of the aforesaid conclusion, the trial court proceeded to decide the issue with regard to the counter claim of the respondents.

24.  It was noticed that the respondents wanted a direction in the nature of the Mandatory Injunction, to be given to the appellant to demolish the illegal construction, which came subsequent to the passing of the status quo order. We may notice here that the status quo order referred to by the trial court had been passed on 7th January, 1999. The trial court, however, observed that "the order of status quo was granted in respect to disputed property. The disputed property is what is described in the plaint schedule and not in the schedule to the written statement." Therefore, it was observed that the respondents would have the cause of action available to seek possession based on title and not on the basis of mandatory injunction on account of violation of status quo order. In these circumstances, the trial court observed that the appropriate remedy available to the respondents is to sue for possession.

25.  In our opinion, the High Court, while allowing the claims of the respondent to include the prayer for possession in the counter claim, failed to appreciate that the order passed by the trial court did not cause any prejudice to the respondents. The trial court had merely held that the remedy of an independent suit was available to the respondents.

26.  In our opinion, the judgments relied upon by the respondents are really of no assistance in the facts and circumstances of this case.

27.  In Nanduri Yogananda Lakshminarasimhachari Vs. Sri Agastheswaraswamivaru12, this Court observed that the amendment could be permitted in a plaint as there was no new fact to be alleged and the parties were alive to the real nature of the dispute.

28.  In the case of Pandit Ishwardas (supra), it has been observed as follows :-

"There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."These observations clearly indicate that one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the appellate sage, the reason why it was not sought in the trial court. In the present case, not only there is wholly untenable delay in the application but the appellants had a decree for permanent injunction in their favour.

29.  In the case of Jagmohan Chawla (supra), this Court considered the scope of Rule 6A to 6G of Order VIII CPC and observed as follows:- "It is true that in money suits, decree must be conformable to Order 20, Rule 18, CPC but the object of the amendments introduced by Rules 6-A to 6-G are conferment of a statutory right on the defendant to set up a counter-claim independent of the claim on the basis of which the appellant laid the suit, on his own cause of action. In sub-rule (1) of Rule 6-A, the language is so couched with words of wide width as to enable the parties to bring his own independent cause of action in respect of any claim that would be the subject-matter of an independent suit. Thereby, it is no longer confined to money claim or to cause of action of the same nature as original action of the plaintiff. It need not relate to or be connected with the original cause of action or matter pleaded by the plaintiff. The words "any right or claim in respect of a cause of action accruing with the defendant" would show that the cause of action from which the counter- claim arises need not necessarily arise from or have any nexus with the cause of action of the plaintiff that occasioned to lay the suit. The only limitation is that the cause of action should arise before the time fixed for filing the written statement expires."

The aforesaid observations, in our opinion, have no relevance to the controversy in the present case, as the claim of the respondent has been rejected by the trial court on the ground that the cause of action arose a long time ago.

30.  In the case of Revajeetu Builders (supra), this Court reiterated the very wide discretion the Courts have in the matter of amendment of pleadings. These observations were in the context of an application filed by the appellant, seeking amendment of the original plaint including the prayer clause being rejected by the High Court upon coming to a definite conclusion that the appellant while seeking permission to amend the plaint is trying to introduce a new case, which was not his case in the original plaint and the proposed amendment, if allowed, would certainly affect the rights of the respondents adversely. It was also held that any such amendment, which changes the entire character of the plaint, can not be permitted and that too, after a lapse of four years and after the institution of the suit.

This Court, upon a detailed consideration of the historical background of Order VI Rule 17 and upon a comprehensive survey of the case law, concluded that the amendment can be permitted, if it was necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment can not be allowed. It was also observed as follows:- "22. .... The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the court."

31.  In our opinion, the decision of the trial court is in conformity with the aforesaid principles. The trial court has clearly held that the cause of action for the relief of possession arose to the respondents many years ago. They may, therefore, have a cause of action, if any, for an independent suit. In the aforesaid case, the Court further reiterated the principle in Ganga Bai Vs. Vijay Kumar13 wherein it was rightly observed : "The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court."

32.  Similarly in Dhanpal Balu (supra), this Court permitted the amendment in the facts and circumstances of that case. Thus the judgment would not advance the case of the appellant in any manner.

33.  We may notice here the observations made by this Court in the case of Ramesh Chand (supra) which may be of some relevance. Upon considering the ratio of earlier cases in the case of Sangaram Singh Vs. Election Tribunal, Kotah14, Arjun Singh Vs. Mohindra Kumar15 and Laxmidas Dayabhai Kabrawala Vs. Nanabhai Chunilal Kabrawala16, it was held that a right to make a counter claim is statutory and a counter claim is not admissible in a case which is admittedly not within the statutory provisions. It is further observed that : "Looking to the scheme of Order 8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter- claim against the claim of the appellant preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the court in a written statement already filed. Thirdly, a counter- claim may be filed by way of a subsequent pleading under Rule 9.

In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under Order 6 Rule 17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the court under Order 8 Rule 9 CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter- claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the court, the court would be justified in exercising its discretion not in favour of permitting a belated counter- claim.

The framers of the law never intended the pleading by way of counter-claim being 28 utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced." These observations make it clear that generally speaking the counter claim not contained in the original written statement may be refused to be taken on record, especially if issues have already been framed. In the present case, the counter claim is sought to be introduced at the stage of appeal before the High Court.

34.  In such circumstances, we are unable to accept the conclusions of the High Court that the discretion exercised by the trial court was in any manner, illegal or arbitrary in rejecting the counter claim of the respondents. We may notice here the observations of this Court in the case of Rohit Singh (supra) which are as follows :- "A counterclaim, no doubt, could be filed even after the written statement is filed, but that 29 does not mean that a counterclaim can be raised after issues are framed and the evidence is closed. Therefore, the entertaining of the so- called counterclaim of Respondents 3 to 17 by the trial court, after the framing of issues for trial, was clearly illegal and without jurisdiction." These observations would show that the dismissal of the counter claim by the trial court was neither illegal nor without jurisdiction. In fact the direction issued by the High Court would clearly run counter to the aforesaid observations. In the aforesaid case, this Court was considering a situation where the evidence had been closed, arguments on behalf of the respondents had been concluded, the suit was adjourned for arguments of the appellants, the suit was dismissed for default. Subsequently, it was restored. Thereafter the respondents filed an application for amending the written statement. The counter claim was filed by the intervener. In these circumstances, it was observed that at this stage no counterclaim could be entertained.

35.  In the present case, after the matter had been remanded back, the trial court again decreed the suit of the appellants, the counter claim was dismissed for the reasons stated in the judgment of the trial court. We may restate here that the prayer in the original counter claim was only for a mandatory injunction to demolish the illegal structures in Sy.No.110/1. It was only when the Regular First Appeal was filed for challenging the original decree that the respondents made an application under Order VI Rule 17 for amendment of the original written statement to incorporate the counter claim with a prayer for possession of the land in dispute in Survey No.110/1. In such circumstances, the High Court erred in disturbing the findings recorded by the trial court.

36.  The matter herein symbolizes the concern highlighted by this Court in the case of Ramesh Chand (supra).Permitting a counter claim at this stage would be to reopen a decree which has been granted in favour of the appellants by the trial court. The respondents have failed to establish any factual or legal basis for modification/nullifying the decree of the trial court.

37.  We are of the considered opinion that the High Court committed a serious error of jurisdiction in allowing the appeal filed by the respondents. Consequently, the appeal is allowed. The Judgment of the High Court is set aside.

................................J. [B.Sudershan Reddy]

................................J. [Surinder Singh Nijjar]

New Delhi;

January 11, 2011.

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