Summary
A plaintiff sued in Bangalore on the strength of prior possession for restoration of part of a house from which he was dispossessed; the defendants led no evidence and the suit was decreed in 2007. After the Supreme Court held in an earlier round that the suit was not one under Section 6 of the Specific Relief Act and confined the remand to recording the defendants' evidence, the High Court refused amendment of the written statement to plead a purchase of the property pendente lite and confirmed the decree. The Supreme Court dismissed the appeal: amendment at the appellate stage after an adverse decree is allowed only in rare cases with reasons for the delay, the trial court could not exceed the remand order, a suit on prior possession is maintainable and jus tertii is no defence, and the suit did not abate as the deceased defendant's estate was represented by his sons.
Issues
- Whether the written statement could be amended at the appellate stage, after an adverse decree and a limited remand, to plead a sale deed executed during the pendency of the suit.
- Whether a suit based on prior possession and illegal dispossession, held not to be one under Section 6 of the Specific Relief Act, 1963, is maintainable, and whether the defendants could resist it by pleading a third party's title.
- Whether the suit abated or was bad for non-joinder on the death of one defendant whose sons were co-defendants and whose alleged vendors were not impleaded.
Provisions considered
- Order VI Rule 17 and Order XLI Rule 2, Code of Civil Procedure, 1908Amendment of pleadings at the appellate stage is permissible only in rare circumstances; delay and the absence of any reason for not seeking amendment before the trial court weigh against it, and here the defendants had let eight opportunities to file an additional written statement pass and sought only to adduce evidence in their first appeal. (¶¶ 14, 15, 17, 18, 19, 20, 23)
- Section 52, Transfer of Property Act, 1882A sale of the suit property in 2000 during the pendency of the suit is subservient to the rights of the parties to the litigation under the principle of lis pendens, whether or not the section applies in terms; in a suit on possessory title its legality need not be examined. (¶¶ 16, 41)
- Sections 6 and 8, Specific Relief Act, 1963The earlier judgment of the Court that the suit was not one under Section 6 attained finality; Section 8 does not render a suit based on prior possession alone incompetent after six months, as held in Nair Service Society. (¶¶ 25, 26, 27)
- Order XXII Rule 4, Code of Civil Procedure, 1908Where the deceased defendant's sons were already defendants jointly contesting the same interest, the estate was sufficiently represented and the suit did not abate for want of substitution of all his legal representatives. (¶¶ 33, 34, 35, 36)
Held
- Courts should avoid a hyper-technical approach to amendment of pleadings, but amendment of the written statement at the appellate stage after an adverse decree is allowable only in the rarest of circumstances; the delay and the absence of any explanation for not seeking amendment before the trial court are relevant, and granting it here would have required fresh issues and a de novo trial. After the Supreme Court confined the remand to recording the defendants' evidence for the High Court, the trial court rightly refused to expand the scope of the remand by allowing amendment. (¶¶ 14, 15, 16, 17, 20, 21, 22, 23)
- The suit was founded on prior possession and illegal dispossession and the plaintiff disclaimed ownership; the defendants did not plead their own possession but set up a third party's title, which attracts the principle of jus tertii and is no defence to an action for trespass. Where neither party shows title, prior possession decides the right to possession against all but the true owner, and a suit on prior possession alone is maintainable even after six months. (¶¶ 27, 28, 30, 31)
- The plea of non-joinder of the alleged vendors fails because the defendants themselves deposed that possession was never delivered to them under the agreement of sale, and the plea of abatement fails because the deceased defendant's sons, co-defendants jointly defending the same interest, sufficiently represented his estate. No amount of evidence can be looked into without appropriate pleadings, and the concurrent findings warrant no interference under Article 136. (¶¶ 32, 33, 36, 37, 38, 39, 40, 41)
Result
Appeal dismissed; Karnataka High Court judgment dated 09.09.2010 in RFA No. 1966 of 2007 confirming the decree for recovery of possession of the B schedule property and perpetual injunction over the C schedule property affirmed; no order as to costs.