G. Reddi Babu, ... vs Ponna Suresh Babu, Chittoor Dist
2021 Latest Caselaw 1255 AP

       THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

           CIVIL REVISION PETITION No.4284 OF 2014

ORDER:-

       The present civil revision petition is filed under Article 227 of

the Constitution of India challenging the order dated 21.10.2014

passed in I.A.No.290 of 2013 in O.S.No.45 of 2011 by learned

Senior Civil Judge, Piler whereby the petition filed by the

petitioners/plaintiffs under Order VI Rule 17 of the Code of Civil

Procedure seeking amendment of the plaint by incorporating paras

1 to 7 mentioned therein was dismissed.


2.     The plaintiffs are before this Court by way of this revision.

The parties shall be referred to as they are arrayed in the suit i.e.

plaintiffs and defendant.


3.     The plaintiffs herein filed O.S.No.45 of 2011 seeking relief of

perpetual injunction. The case of the plaintiffs is that one

P.Nagaiah       and   his    sons   owned   Ac.0-79    ½   cents,   Ponna

Venkatamuni owned Ac.0-79 ½ cents, Paluri Kalappa owned Ac.0-

39 ¾ cents and Medikurthy Munuswamy owned Ac.0-39 ¾ cents

in survey No.588 of Bodumalluvaripalli village. They were in

peaceful possession and enjoyment of land to an extent of Ac.2-37

cents. It was averred in the plaint that D.Harinatha Reddy and

B.Sarala purchased Ac.0-40 cents and Ac.1-59 cents under three

sale    deeds    dated      24.05.2002,   04.07.2002    and   19.06.2003

respectively. The remaining Ac.0-40 cents of land was sold to

G.Babu,     N.Dinakar,       M.Gangulappa    and      M.Rosamma     under

registered sale deed dated 26.02.2003. The said vendees in turn

executed general power of attorney in favour of plaintiff No.1 on the
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same day. Accordingly plaint-A schedule property was levelled on

D.Harinatha Reddy, B.Sarala and plaintiff No.1 who are brothers

and sister who have laid 49 plots in the said land, partitioned and

sold them to third parties including plaintiff Nos.2 to 5 by retaining

plot Nos.40 to 42. Plaintiff No.2 purchased plot Nos.13, 16, 17, 24

and 25 under registered sale deed dated 06.05.2004, plaintiff No.3

purchased plot No.38 under registered sale deed dated 06.05.2005,

plaintiff No.4 purchased plot No.39 under registered sale deed

dated 06.05.2005 and plaintiff No.5 purchased plot No.43 under

registered sale deed dated 29.06.2005. It is stated in the plaint

that without any manner of right or title, the defendant tried to

encroach upon plaint 'B' schedule property which is part and

parcel of plaint 'A' schedule property. As such the plaintiffs have

filed the present suit seeking permanent injunction restraining the

defendant from interfering with their peaceful possession and

enjoyment over the property.


4.    The    defendant     filed   written   statement   denying   the

possession and ownership of the plaintiffs over 'B' schedule

property, as such the plaintiffs filed I.A.No.290 of 2013 under

Order VI Rule 17 to amend the plaint by allowing them to insert

paras 1 to 7 and sought for declaration of title over plaint 'B'

schedule property. The defendant by filing counter opposed the

petition filed under Order VI Rule 17 on the ground that the same

is filed at a belated stage.


5.    Learned counsel appearing for the plaintiffs before the Court

below contended that amendment of the pleadings can be allowed

even after the amendment made to C.P.C. The Court below held
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that there is no dispute with the proposition of law as stated by

the learned counsel for the plaintiffs but observed that it is not

stated in the petition that inspite of due diligence they could not

file this application before commencement of trial. It was also

observed that it is further settled law that the moment issues are

settled, it can be deemed that trial is commenced and in this suit

issues were settled long back on 19.07.2011. Thereafter the suit

underwent number of adjournments till 2014 and when the Court

below insisted for the trial the plaintiffs filed said application

seeking amendment as the defendant denied the title of the

plaintiffs over 'B' schedule property. As such it is appropriate to

make amendment in the plaint. It is observed by the Court below

that the defendant filed written statement as long back as prior to

19.07.2011

and having knowledge about the same the plaintiffs

waited for two years to file the said petition.

6. The Court below has held that there is negligence on the part

of the plaintiffs in not filing the application before settlement of

issues and because of the negligence on the part of the plaintiffs,

the opposite party cannot be put to sufferance and dismissed the

said application being filed at a belated stage.

7. Heard Sri V.R. Reddy Kovvuri, learned counsel for the

plaintiffs. Learned counsel for the plaintiffs filed a memo showing

that he has sent notice to the address of the defendant as

mentioned before the Court below and filed memo to that effect.

8. It is not in dispute that the original suit was filed for

perpetual injunction restraining the defendant from interfering

with the possession of the plaintiffs. By filing written statement the

defendant denied the title of the plaintiffs over 'B' schedule

property. As per the learned counsel for the plaintiffs, though the

issues were framed, examination of witnesses has not commenced.

As such he contends that the trial is yet to commence. It is a

normal rule that the amendment can be allowed at any stage prior

to amendment of C.P.C. However, proviso was added to Order VI

Rule 17, which reads as under:

"Order VI Rule 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 parties.

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. A perusal of the rule manifests that the Court may at any

stage of the proceedings allow either party to alter or amend

pleadings in such a manner and on such terms as may be just. It

also makes it clear that such amendment should be necessary for

the purpose of determining the real questions in controversy

between the parties. The amended provision stipulates that no

application for amendment should be allowed after trial has

commenced unless the Court comes to the conclusion that inspite

of due diligence the party could not file the application for which

amendment is sought before the commencement of trial. The whole

object of the amended provision is that the Court must see the

merits of the case that come before it and to consequently allow

the amendments that may be necessary for determining the real

question in controversy between the parties, provided it should not

cause injustice or prejudice to other side.

10. Order VI Rule 17 consists of two parts. First part is

discretionary. The second part is imperative and permits the Court

to allow all amendments which are necessary for the purpose of

determining the real controversy between the parties.

11. In Kailash vs. Nanhku and Ors.1 the Hon'ble Apex Court

observed that trial begins only when issues are framed and the

case is set down for recording of evidence. All the proceedings

before that stage are treated as proceedings preliminary to trial. In

respect of amendment under Order VI Rule 17 if the party

establishes that inspite of due diligence the party could not have

raised the matter before commencement of the trial, the Court is

free to order such application.

12. In Chander Kanta Bansal vs Rajinder Singh Anand2

wherein the Hon'ble Apex Court while observing that The word due

diligence has not been defined in C.P.C. held as under:

"if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence"

2005 (4) SCC 480

2008 (5) SCC 117

means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

13. In Sajjan Kumar vs. Ram Kishan3 the Hon'ble Apex Court

held that:

"Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial Court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial Court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff- appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit."

14. In Revajeetu Builders and Developmers vs.

Narayanaswamy and Sons and Ors.4 the Hon'ble Apex Court had

analyzed both the English and Indian cases from which some

principles emerged for taking into consideration while allowing or

rejecting the application for amendment where are as under:

2005 (13) SCC 89

2009 (10) SCC 384

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

15. In Abdul Rehman and Anr vs. Mohd. Ruldu & Ors.5 it is

held that the object of the rule is that Courts should try the merits

of the case that come before them and should, consequently, allow

the amendments that may be necessary for determining the real

question in controversy between the parties provided it does not

cause injustice or prejudice to the other side.

16. In Pankaja and Anr vs. Yellappa (D) by Lrs. & Ors.6 it was

held that if the granting of an amendment really sub-serves the

ultimate cause of justice and avoids further litigation the same

should be allowed and there can be no straight jacket formula for

allowing or disallowing an amendment of pleadings. Each case

depends on the factual background of that case. Accordingly the

2012 (11) SCC 341

AIR 2004 SC 4102

Hon'ble Supreme Court allowed the amendment by setting aside

the order of the lower Court.

17. In Sampath Kumar vs. Ayyakannu and another7 wherein

the plaintiff sought for amendment in a suit filed for permanent

prohibitory injunction. It was held that in the facts and

circumstances of the case allowing the amendment would curtail

multiplicity of legal proceedings and it is a well settled rule of

practice not to dismiss the suit automatically but to allow the

plaintiff to make necessary amendment if he seeks to do so. Pre-

trial amendments are allowed more liberally than those which are

sought to be made after the commencement of the trial or after

conclusion thereof. No strait-jacket formula can be laid down. The

fact remains that a mere delay cannot be a ground for refusing the

prayer for amendment.

18. In Mohinder Kumar Mehra vs. Roop Rani Mehra8 it was

held as under:

"19. While considering the prayer of amendment of the pleadings by a party, this Court in the case of Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) through Legal Representatives & Ors., (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in Paragrpahs 20, 21 and 22, which is quoted as below:-

20. It is well settled that rules of proce- dure are intended to be a handmaid to the ad- ministration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infrac- tion of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had

2002 (7) SCC 559

2018 (2) SCC 132

caused injury to his opponent which cannot be compensated for by an order of cost.

21. In our view, since the appellant sought amendment in Para 3 of the original plaint, the High Court ought not to have rejected the application.

22. In Jai Jai Ram Manohar Lal v. National Building Material Supply3, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations."

19. Now coming to the facts on hand the suit was filed in the

year 2011 for perpetual injunction and the defendant filed written

statement denying the title of the plaintiffs in respect of 'B'

schedule property which insisted the plaintiffs to file application

seeking amendment by including the prayer for declaration, on

22.07.2013. By that time issues were framed and adducing of

evidence is not yet commenced. In the affidavit the petitioner has

given cogent reasons and also explained the delay in filing the

petition. In the light of the judgment of the Hon'ble Apex Court in

Ananthula Sudhakar vs. P. Buchi Reddy (Dead)9 when the plaintiff

files a suit for bare injunction and the defendant disputes the title

without seeking relief of declaration mere suit for injunction is not

maintainable.

20. The object of Rule 17 is to avoid multiplicity of litigation. The

Court has to see whether the amendment is necessary for

determining the real question in controversy. While considering the

application filed under Rule 17 the Court should not look at the

same in hyper technical manner but it has to be considered to

promote the ends of justice. The jurisdiction shall be exercised in

Appeal (Civil) 6191 of 2001

the larger interest of doing full and complete justice to the parties.

No doubt almost two years after filing the written statement, the

present petition is filed. In the light of the law laid down by the

Hon'ble Apex Court in Ananthula Sudhakar's case (referred supra),

plaintiffs cannot maintain the mere suit for injunction without

seeking the relief of declaration as the defendant has denied the

title and raised cloud over the title of the plaintiffs. The purport of

Section 17 is not to punish the parties for their negligence and

shortcomings.

21. In view of the above discussion and in the facts and

circumstances of the case if the amendment is not allowed, it

would cause prejudice to the plaintiffs and at the same time

amendment will not cause any injustice to the defendant.

22. Accordingly, this revision case is allowed setting aside the

order dated 21.10.2014 passed in I.A.No.290 of 2013 in O.S.No.45

of 2011 by learned Senior Civil Judge, Piler. The Petitioners/

plaintiffs are directed to amend the plaint as sought for and file a

fair copy of the plaint within fourteen days from the date of receipt

of a copy of this order.

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

stand closed.

____________________________________ JUSTICE LALITHA KANNEGANTI

Date: 02.03.2021 IKN

THE HON'BLE SMT JUSTICE LALITHA KANNEGANTI

CIVIL REVISION PETITION No.4284 of 2014

Date: 02.03.2021

IKN