NAGARAJAPPA Vs. PUTTADEVAMMA

JUDGEMENT

(1.) I have heard the learned Advocates on both sides.

(2.) Petitioner's learned Advocate submitted that the post decretal application for amendment may not be totally barred by law, but that there are other principles governing the limitations of that application. He relies on three decisions of this Court in the case of Akkanagamma and Others v R. Nageswariah and Another and in the case of Sreenivasa Krishnappa Bilagi v Shivappa Channabasappa and an unreported decision of this Court . The consistent view in these decisions is that if an application for amendment is made at the appellate stage even though it is within the power of the Appeal Court to grant such an amendment, that the correct procedure would be for the Court to hear the application at the stage when the appeal is taken up for hearing on merits. The real reason for this is because the granting of an application for amendment at such a late stage will be allowed only in exceptional cases provided it is absolutely essential for the fair determination and a due consideration of the dispute. In order to come to this conclusion, the parties will have to be heard with regard to the merits of the main matter and the Court will have to assess on merits as to whether the answer to the aforesaid question is in the affirmative. In the present case, the Appeal Court has considered the application and has come to a decision after hearing the parties wherein there is some reference to the merit of the case. However, it is very clear that this was done prior to the appeal coming up for hearing on merits and therefore, it was not only a premature, but an incomplete assessment of the merit of the case. Under these circumstances, the petitioner's learned Advocate submits that the order in question is liable to be set aside and that the Appeal Court be directed to consider the question de novo at the stage when the appeal is taken up for hearing.

(3.) The respondent's learned Advocate submits that the objection is purely academic. She has drawn my attention to the order passed by the Appeal Court and she states that the learned Judge has examined the case on merits and come to the conclusion that the amendment was permissible. It is her contention that the stand taken up by the petitioner is highly technical insofar as the merits of the case have been assessed and therefore, whether this was done prior to the formal hearing of the appeal or at the same time is completely academic. The learned Advocate supports her submission by relying on a Division Bench decision of this Court in the case of M.R.K. Rau and Others v Corporation of the City of Bangalore and she submits that the Division Bench has laid down that an amendment is permissible at any stage of a proceeding. Obviously, the argument proceeds on the footing that the appeal is an extension of the original proceeding and that therefore, there was no legal bar in the way of the Appeal Court having permitted the amendment since the Appeal Court was satisfied that it was necessary and justified.