P.Fatima Bee vs P Abdul Bee Died
2021 Latest Caselaw 5394 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                           C.R.P.No.29 of 2019

ORDER:

The petitioner herein had filed O.S.No.56 of 2006 on the file of the

Junior Civil Judge, Rayadurg, against the respondents herein for

declaration of title and possession of the suit schedule property. This suit

was dismissed on 19.03.2014. Aggrieved by the said judgment and

decree, the petitioner moved A.S.No.30 of 2014 before the I Additional

District Judge, Ananthapuramu. The petitioner also filed I.A.No.808 of

2016 to permit her to amend the plaint and to make consequential

amendment in the plaint.

2. The facts that were sought to be made out by the petitioner

in this application are as follows:

There was a partition in the family of the husband of the petitioner

on 14.04.1972. Under this partition, the 1st respondent and his brothers

had been allotted 'A' schedule properties and the husband of the

petitioner and his brothers were allotted 'B' schedule properties.

Subsequently, the husband of the petitioner and his brother divided the

property allotted to them by way of another partition, on 31.08.1999. The

husband of the petitioner had, thereafter, transferred the property

acquired by him under the said partition, to the petitioner herein, under a

registered deed of gift dated 05.02.2005. The property, which was

transferred to the petitioner, is the plaint schedule property. However, the

1st respondent, who was allotted a share in 'A' schedule property under

the partition dated 14.04.1972 raised a dispute regarding the plaint

schedule property which falls under 'B' schedule property.

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3. It appears that one Sri Abdul Rasheed, brother of the 1st

respondent had raised inter se disputes and claimed 1/3 share in 'A'

schedule property allotted to the 1st respondent and his brothers on

14.04.1972. The said Abdul Rasheed filed O.S.No.219 of 1989 on the file

of the Principal Senior Civil Judge, Ananthapuramu, against the 1st

respondent and another brother, viz., Abdul Haq in relation to the

properties allotted under 'A' schedule property. This suit ended in a

compromise before the Lok Adalath on 25.04.2002. The compromise

decree and plaint in the said suit were marked as Exs.A.5 and A.6 in

O.S.No.56 of 2006 filed by the petitioner. The written statement of the 1 st

respondent filed in O.S.No.219 of 1989 was also marked as Ex.A.7 in

O.S.No.56 of 2006 filed by the petitioner. However, the facts relating to

these documents were not mentioned in the plaint. It is the case of the

petitioner that as there was no pleading in the plaint, the trial Court

refused to look into these documents and did not advert to Exs.A.5 to A.7

in the judgment. In order to correct this lacuna, the petitioner states that

I.A.No.808 of 2016 is being filed in the main appeal.

4. The respondents opposed the said application on the ground

that the petitioner had not explained any where as to why these pleadings

are not included at the inception. It was further contended that no due

diligence has been shown by the petitioner as to why there was such an

inordinate delay in seeking amendment of plaint.

5. The appellate Judge after considering both the contentions

had held that the application for amendment of plaint had been filed only

at the stage of arguments in the appeal and no reasons have been given

in the affidavit filed in support of the application as to why the petitioner

had not sought amendment of plaint earlier. On these grounds, the 3 RRR,J C.R.P.No.29 of 2019

application was dismissed by the trial Court on 13.12.2018. Aggrieved by

the said order, the petitioner has filed the present revision petition.

6. Heard Sri K. Srinivasa Reddy, learned counsel appearing for

the petitioner and Sri N. Aswartha Narayana, learned counsel appearing

for the 2nd respondent.

7. Sri K. Srinivasa Reddy, learned counsel for the petitioner,

essentially reiterated the contentions in the application and relied upon

the judgment in Boya Pikkili Pedda Venkataswamy vs. Boya

Ramakrishnudu1; J. Yadagiri Reddy and Ors, vs.J. Hemalatha and

Ors.2; and Chakreshwari Construction Private Limited vs. Manohar

Lal3 to contend that an amendment to the plaint can be sought at any

stage and such an amendment can be allowed even at the appeal stage, if

no further evidence is required to substantiate the amendment pleaded.

8. Sri N. Aswartha Narayana, learned counsel appearing for the

respondents would submit that such an amendment is not permissible as

it is sought to be made at the fag end of the appeal and without

establishing that the petitioner was not able to raise these facts even after

due diligence was exercised by the petitioner. He relied upon the

judgments of this Court in Iragam Reddy Thirupal Reddy and ors.,

vs. State of Andhra Pradesh and ors.,4; M.T.V. Murali Krishna and

Ors., vs. M. Rama Raju and Ors.,5; and Narani Jangaiah and Ors.,

vs. Pasham Anjaneyulu and Ors.,6.

9. Without going into the details, the proposition of law set out

in all the aforesaid judgments can safely be summarised. The aforesaid

2013 (2) ALT 214

2016 (3) ALT 211

(2017) 5 SCC 212

2016 (3) ALT 660

2012 (2 ALT 83

2015 (5) ALT 323 4 RRR,J C.R.P.No.29 of 2019

judgments essentially held that amendment of pleadings can be done at

any stage of the suit or the appeal. However, such an amendment is

permissible only where it is shown that the party seeking such an

amendment had exercised due diligence and was unable to raise those

pleadings despite exercise of due diligence.

10. In the present case, even though the documents had been

marked in evidence, the petitioner did not seek to amend pleadings to set

up a foundation on which the documents can be looked into. In a similar

case reported in Narani Jangaiah and Ors., vs. Pasham Anjaneyulu

and Ors., the plaintiffs marked documents without necessary pleadings to

support the said documents, in the year 2012, and subsequently sought to

amend the pleadings much later. This application for amendment was

dismissed by the trial court. The learned single Judge affirmed the

judgment of the trial Court on the ground that no due diligence has been

shown by the parties in that case.

11. In the present case, except setting out the facts, why such

an amendment is required, the petitioner has not stated as to why an

application for amendment of pleadings had not been filed earlier. No

reasons for the inordinate delay in seeking such an amendment to the

plaint have been set out in the application filed before the appellate Court.

12. In the circumstances, as the petitioner has not

demonstrated that the pleadings could not have been raised even after

due diligence, and the amendment should be permitted, I do not find any

reason to interfere with the order of the appellate Court. However, it

would always be open to the Petitioners to rely on such documents if it

can be demonstrated to the appellate court that such documents can be

relied upon, de hors any pleadings to that effect.

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13. Accordingly, the civil revision petition is dismissed. There

shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

_________________________ R. RAGHUNANDAN RAO, J.

___ December, 2021 Js.

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                                      C.R.P.No.29 of 2019




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




                C.R.P.No.29 of 2019




               ____ December, 2021
Js.