V RAMAKRISHNA Vs. A DAVIDAPPA

JUDGEMENT

(1.) This revision petition is directed against the order rejecting the application for amendment of the written statement. Defendants 2 to 4 are the petitioners before this Court and respondents 1 and 2 are the plaintiffs. The plaintiffs filed a suit for declaration of title and possession of the suit schedule property. After the evidence had been recorded and when the matter was posted for arguments, the defendants filed I.A.18 an application for amendment of the written statement, filed by them. This application was rejected by the trial Court In this revision, the petitioners challenge the said order passed by the learned Civil Judge, Bangalore.

(2.) Sri Gundappa, learned Counsel appearing on behalf of the petitioners, has contended that the learned Civil Judge has not applied his mind to the question, before rejecting the application filed by the petitioners. He argues that the defendants, in issue No.1 have taken the stand that they are agriculturists and the property in question has been leased back to them and it is really in the nature of mortgage. After the coming into force of the Mysore Agricultural Debtors' Relief Act (which will be hereinafter referred in as the Act) the defendants applied for amendment of the written statement and they wanted to take up the stand that they are not tenable. The learned Civil Judge is wrong in thinking that the Act. The reasons given by the learned Judge for rejecting the application are not tenable. The learned Civil Judge is wrong in thinking that the petitioners made the application at a late stage. The learned Judge has, in one single sentence, slated that none of the provisions of the Mysore Agricultural Debtors' Relief Act is attracted on the facts stated in the pleadings; he has not considered or dealt with the specific sections of the Act on which the petitioners rely. As the law gave the petitioners new rights, no question of bcna fide arises in the case. Under sub-sec. (4) of S.2, 'debt' is defined to include mortgage amount. Under S.4, a debtor can make an application for scaling or adjustment of his debts. Under S.18, the Civil Court has to transfer the proceedings, when they involve the question whether the person from whom such debt is due is a debtor, to the Court constituted under the Act. It is argued that the learned Civil Judge has failed to apply his mind to the facts of the case and his order is illegal and deserves to be set aside by this Court.

(3.) Sri Farukhi. learned Counsel appearing on behalf of the respondents contends that the application (I.A.18) is not bona fide and has been made with the ulterior purpose of dragging on the proceedings. He argues that the object of the defendants is to prolong the suit. Sri Farukhi has pointed out that in the written statement filed in the suit, the defendants have not contended that there was any mortgage debt; all that they contended was that it was a sale deed and it was a nominal one. It has also been stated by the petitioners in the written statement that no consideration had passed. Now, the petitioners want to take the stand that it is not a sale deed but a mortgage deed and consideration had passed. He has stressed the fact that the application has been made after the evidence has been recorded and the matter had been posted, after a number of adjournments, for arguments. It is further pointed out that in the earlier proceedings between the parties, the petitioners have never stated that the transaction in question was a mortgage. Throughout, the stand taken by the petitioners was that it was a sale. The contention of the petitioners was that the sale was vitiated as there was no family necessity for their farther to dispose of the property. It is also stressed that in the two earlier proceedings, O.S.18/52-53 and O.S.304/59 the stand taken by the defendants that they are agriculturists had been negatived in both the suits. The appeals filed by the petitioners were dismissed and the orders of the trial Court were confirmed. It is also argued that no question of any 'debt' arises in this case. The petitioners have not made any application under S.4 of the Act for adjustment of the debt. After having throughout taken the stand that the transaction in question was a sale, the petitioners cannot now turn round and contend that the transaction in question is a mortgage. It is also contended that this is not a fit case calling for interference in revision under S.115 CPC. It is argued that the learned Civil Judge was right in holding that none of the provisions of the Mysore Agricultural Debtors' Relief Act is attracted to the instant case and the application was bereft of bona fides and the onlv object of the petitioners in filing the application was to protract the proceedings.