HON'BLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.448 of 2020
ORDER:
This civil revision petition under Article 227 of the Constitution of India is directed against the order, dated 22.02.2019, passed in I.A.No.74 of 2019 in O.S.No.98 of 2013 by Principal Junior Civil Judge, Kamareddy.
2. The petitioner-plaintiff filed suit in O.S.No.98 of 2013 for perpetual Injunction against the respondents-defendants. While so, the petitioner filed I.A.No.74 of 2019 under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short "C.P.C.") to amend the plaint for suit claim by inserting "Declaration of title, recovery of possession and mandatory injunction. The respondents resisted the application. On consideration of the material on record, the trial Court dismissed the application vide order dated 22.02.2019 by mainly taking a view that the proposed amendment would change the nature of the suit and the relief would be different from that was claimed in the suit. Aggrieved by the same, the present revision is preferred.
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3. Learned counsel for the petitioner submits that the suit filed by the petitioner for perpetual Injunction was dismissed for default on 20.04.2015 and subsequently, the same was restored on 09.01.2018. Taking advantage of dismissal of the suit, the respondents illegally occupied the suit schedule property in the last week of March, 2016. Therefore, the present application was filed to amend the plaint seeking the relief of title and recovery of possession and mandatory injunction and to make suitable amendments at relevant paras. In support of his contentions, he has placed reliance on the decisions of P.Shailaja Kumar @ Shaila Kumari, Hyderabad v.Vasantha Malavika1, Liquidator Maratha Market People's Co-op Bank Ltd (in liquidation) v. Jeejaee Estate2, Mohinder Kumar Mehra v. Roop Rani Mehr3 and Vidyabai v. Padmalatha4.
4. Per contra, learned counsel for the respondents supported the impugned order and submits that the petitioner filed the present application at a belated stage and the proposed amendment would 1 2019 SCC Online TS 3535 2 2019 SCC Online Bom 32 3 (2018) 2 Supreme Court Cases 132 4 (2009 ) 2 Supreme Court Cases 409 3 change the nature of the suit. As such, the trial Court has rightly dismissed the application. He has placed reliance on the decision of Ajendraprasadji N.Pande v. Swami Keshavprakeshdasji5.
5. I have considered the submissions of learned counsel for the petitioner and the learned counsel for respondents. Perused the record.
6. A perusal of the material on record would disclose that the petitioner filed suit for perpetual Injunction in the year 2013 against the respondents and the same was dismissed for default on 20.04.2015. On being application filed by the petitioner in I.A.No.68 of 2015, the suit was restored on 09.01.2018. During the pendency of the said application, the respondents illegally occupied and constructed open shed in the suit schedule property. The petitioner went to Saudi Arabia on his employment and returned to India on 14.03.108 and he noticed that the respondents are in illegal occupation of the suit schedule property. Therefore, the present application was filed for amendment to the pleadings 5 AIR 2007 Supreme Court 806 4 seeking declaration of the title and recovery of possession and mandatory injunction.
7. The respondents filed written-statement and the issues were settled. The suit was coming-up for trial, when the impugned application was filed.
8. Order VI Rule 17 of C.P.C. as it now exists is as follows:-
17. Amendment of Pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the par- ties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
9. In Mohinder Kumar Mehra's case (3 supra), the Apex Court at para No.14 and 17 held as under:
14. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in 5 spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases.
17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses". Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.
9. In Ajendraprasadji N.Pande's case (5 supra), the Apex Court at para No.57 held as under:
57. The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu & Ors. (2005) 4 SCC 480), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
10. In Adusumilli Venkateswar Rao v. Chalasani Hymavathi6, this Court observed that the plaintiff in a suit for permanent injunction is entitled to seek amendment for declaration and 6 AIR 1990 AP 161 6 recovery of possession and such amendment does not alter the nature of the suit.
12. It is not in dispute that the trial in the present suit is not yet commenced. Therefore, the proviso to Order VI Rule 17 of C.P.C. would not come in the way of the Court to consider the application for amendment made by the petitioner, even though it was filed belatedly. Therefore, the observation of the Court below as to why the petitioner was silent for about three years is not proper, as the application for proposed amendment of pleadings was filed, subsequent to the restoration of the suit as stated supra. Moreover, the purpose for permitting the amendment of pleadings is to avoid multiplicity of the proceedings. The trial Court has ignored the said fundamental principle in considering the application for amendment. The view took by the trial Court that the proposed amendment would alter the complete nature of the suit also appears to be in correct, in view of the judgment of Apex Court in Sampath Kumar v. Ayyakannu7. The Apex Court in the said judgment held that when the plaintiff is debarred from instituting a new suit seeking relief of declaration of title and recovery of 7 (1) (2002) 6 SCC 424 7 possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending, in order to avoid multiplicity of suits, it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in such a suit.
13. Since the respondents raised the cloud about the title of the petitioner in view of his dispossession from the suit schedule property, it would be appropriate that the petitioner can not be prevented from seeking, by way of amendment, the relief of declaration of title and for recovery of possession also. The petitioner himself admitted that he has been dispossessed from the suit schedule property by the respondents. As such, he is seeking amendment seeking the reliefs as stated supra in place of suit for the perpetual Injunction as sought earlier. It does not mean that there is no due diligence on the part of the petitioner in seeking the amendment. In the facts and circumstances of the case, permitting the petitioner for amendment of pleadings as sought, would meet the ends of justice.
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14. For the foregoing reasons, I am of the opinion that the Court below has committed error of jurisdiction in refusing the permit the petitioner to amend the plaint as sought by him.
15. In the result, the Civil Revision Petition is allowed. The impugned order is set aside. I.A.No.74 of 2019 stands allowed. No costs. Miscellaneous applications, if any, pending shall stand closed.
______________________ A.SANTHOSH REDDY, J 03.01.2023 Nvl 9