THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
C.R.P.No. 502 of 2023
ORDER:
This Civil Revision Petition is filed against the order of the Principal Senior Civil Judge, Bhongir, dated 28.12.2022 in I.A.No.3 of 2022 in O.S.No.53 of 2006 in allowing the amendment of prayer.
2. Brief facts leading to the filing of the present Civil Revision Petition are that the plaintiff had filed O.S.No.53 of 2006 for the relief of:
(a) declaration of title in respect of the suit scheduled property;
(b) declaration that the deed of revocation of gift settlement dated 09.12.2005 and registered as document No.6262 of 2005 revoking the gift settlement deed dated 02.04.2004 wherein the document No.4868 of 2004 as null and void;
(c) to grant permanent injunction restraining the defendant No.1 therein, his agents, representatives and other persons claiming through him from interfering with the peaceful possession of the plaintiff and to grant such other relief or other reliefs.
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3. The trial of the suit has commenced and is at the stage of final arguments and at that stage, the petitioner filed I.A.No.3 of 2022 stating that amendment of prayer is to direct the defendants to restore the possession of the suit land to the plaintiff immediately. It was submitted that in the month of July, 2020, the defendants taking advantage of fabricated Revenue entries, came along with his henchmen and unsocial elements and dispossessed her from the suit land. The petitioner/defendant had objected to the I.A. and had raised objections about the maintainability of the I.A. itself on the ground that an application for amendment cannot be filed post commencement of trial and that the I.A. is barred by limitation.
4. The learned Senior Civil Judge, however, allowed the same by taking into the consideration the contention of the petitioner that she was dispossessed in the month of July, 2020 i.e., after the commencement of trial and therefore, the proviso to Order 6 Rule 17 would be applicable to the case of the petitioner in I.A.No.3 of 2022. He further observed that the amendment will not change the nature of the suit in any manner and also curtails the multiplicity of proceedings in 3 PMD,J CRP.No.502 of 2023 future. Challenging the same, the present Civil Revision Petition is filed.
5. Learned counsel for the petitioner submitted that the suit was filed in the year 2006, whereas the amendment of prayer is being sought in the year 2022 i.e., after the lapse of 16 years and therefore, it is barred by limitation. He further submitted that the petitioner has not filed any proof of her dispossession in the month of July, 2020 and even if the said fact were to be true, the petitioner has filed the I.A.No.3 of 2022 in the year 2020 itself and it is not filed along with any evidence in support of the same and therefore, the trial Court ought not to have entertained the application. In support of his above contentions, he placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and Others1 and the case of Vidyabai and Others Vs. Padmalatha and Others2.
6. Learned counsel for the respondents, however, relied upon the averments made in the I.A. and submitted that it was only in the year 2020 that she was dispossessed and therefore, 1 (2020) 11 SCC 549 2 AIR (2009) SC 1433 4 PMD,J CRP.No.502 of 2023 after taking the legal advice, the petitioner has filed the present I.A. in the year 2022. He further submitted that the judgment of Hon'ble Supreme Court in the case of LIC Vs. Sanjeev Builders Private Limited and Another3, has gone into all the provisions and has given guidelines as to when and how the amendment of the prayer can be allowed under C.P.C. Therefore, he relied on the said judgment in support of the order of the learned Senior Civil Judge.
7. Having regard to the rival contentions and the material on record, this Court finds that the suit was filed in the year 2006 and it is at the verge of closure. Therefore, the proviso to Order VI Rule 17 would come into play and unless the lower Court is satisfied that in spite of due diligence, the petitioner could not have raised the matter before the commencement of trial the amendment petition could not have been allowed. The petitioner has filed the docket orders of the Civil Court and as seen therefrom, the issues were framed in the year 2006 itself and trial has commenced immediately thereafter and the chief and cross examinations of the plaintiffs as well as the defendants was almost completed. The contention of the plaintiff was that 3 2022 SCC Online SC 1128 5 PMD,J CRP.No.502 of 2023 she was dispossessed in the month of July, 2020, however, the application in I.A.No.3 of 2022 was filed on 07.06.2022 i.e., nearly after two years of the alleged dispossession. The petitioner, in the affidavit filed in support of the said petition, has not explained the reasons as to why she has taken two years to file the application. She has also not filed any evidence in support of her contention that she was dispossessed in the month of July, 2020.
8. The learned Senior Civil Judge has observed that the petitioner could not have filed the amendment petition before the commencement of trial. However, he ought to have considered whether the petitioner has also filed any documents in support of her contentions that she has been dispossessed from the property only in the month of July, 2020. In the latest judgment, the Hon'ble Supreme Court has considered the issue and issued the following guidelines as given in Para 70 of the order and for ready reference, it is reproduced hereunder:
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. 6
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(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(iii) ****
(iv) ****
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) ****
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) ****
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) ****
9. The guideline number (ii) in Para 70 of the above order is applicable to this case and as no injustice or prejudice would be caused to the other side by the amendment allowed by the lower 7 PMD,J CRP.No.502 of 2023 Court, this Court is also of the opinion that the amendment has to be upheld as it would avoid multiplicity of proceedings. As rightly observed by the learned Senior Civil Judge, that the plaintiff has been claiming possession of the property all along, whereas the defendant had stated that the possession was never given to the plaintiff.
10. In view of the same, the issue as to who was in possession of the property at the time of filing of the suit and whether the said person continues to be the possession of property till disposal of the suit is the question to be considered by the Civil Court. Therefore, the amendment sought for by the petitioner and allowed by the lower Court could not in any way cause prejudice to the defendants. In view of the same, this Court does not find any reason to interfere with the same.
11. Accordingly, this Civil Revision Petition is dismissed. There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Date: 14.03.2023 bak 8 PMD,J CRP.No.502 of 2023 1 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI C.R.P.No. 502 of 2023 Date: 14.03.2023 bak