Andhra Pradesh High Court - Amravati

Anagondi Chennaiah vs Anagondi Chandrasekhar on 6 October, 2021

            THE HONOURABLE SRI JUSTICE D.RAMESH

            CIVIL REVISION PETITION No.7720 of 2018

ORDER:

The petitioner is the plaintiff. Aggrieved by the orders dated

05.11.2018 in I.A.No.1050/2018 in O.S.No.501/2011 on the file of the

Additional Senior Civil Judge, Kadapa, the petitioner filed the Revision

Petition.

2. The petitioner filed the suit for partition. In the said suit, the

defendants 3 and 4 filed I.A.No.1050/2018 under Order VI Rule 17

r/w sec.151 CPC for the following prayer:

I. Add the following as Para 10:-

It is submitted that the properties shown in the schedule of this written statement which are in the name of plaintiff/family members and which are not included by the plaintiff/family members intentionally or purposefully. It is submitted that item nos. 1 and 2 stands in the name of plaintiff while item no.3 stand in the name of his wife. All the three items are acquired by virtue of sale deeds during the period where the plaintiff has been pleaded in the plaint that all the family members have been living jointly. Therefore these defendants are entitled for share in these properties also.

II. Add the following a Para 11:-

Cause of action for the counter-claim arose on dates 25.04.1994, 29.04.1982 and 20.05.1981 when the item nos.1 to 3 of the properties acquired in the name of the plaintiff and family members, on all dates when the plaintiff and defendants have been in joint possession and enjoyment of the same, on all dates when the plaintiff filed the suit excluding the properties shown in the schedule of the written statement, on all dates when the joint possession of the plaintiff and defendants are continuous in respect of the properties, when the plaintiff has intentionally avoided showing in the schedule of the plaint, at Palempalli Village, Kadapa District, where the properties situate within the jurisdiction of this Hon'ble Court.

iii. Add the following as Para 12:-

Value of the Counter-claim for the purpose of Court fee and jurisdiction is as follows: Market value of the properties shown in the schedule of the written statement is Rs.3,87,200/- and 2/6th share comes to Rs.12,90,666/- and 3/4th of the same comes to Rs.9,68,000/- under section 50(1) of the Act and as these defendants have been in joint possession along with the plaintiff and other defendants, a fixed court fee of Rs.200/- is paid under section34(2) of A.P.C.F. and S.V.Act.

DR,J CRP.No.7720 of 2018

iv. Delete the existing Para 10 and Add the following as Para 13:-

a. These defendants therefore pray that the Hon'ble Court may be pleased to dismiss the suit as regards to item no.6 of the plaint schedule property and pass necessary decree as regards to item nos.1 to 5 of the plaint schedule properties according to law with exemplary costs under section 35.A of CPC.

b. Pass a preliminary decree dividing the properties shown in the schedule of the written statement in to six equal parts and allot two such shares to the defendants 3 and 4 by taking in to consideration the good and bad qualities in to account,

c. Thereafter to get an advocate-commissioner appointed for the said purpose of physical division and to pass a final decree,

d. For costs of the counter-claim and

e. For such other reliefs as the Hon'ble Court deems fit and proper in the circumstances of the case in the interests of justice.

3. After elaborate discussion, the Court below has allowed the

application. Assailing the said orders, the present revision is filed.

Learned Counsel appearing on behalf of the petitioner has mainly

contended that the order of the Court below is contrary to proviso of

Order VI Rule 17 CPC. Admittedly, issues were framed basing on the

pleadings and the plaintiff adduced evidence and filed his chief

examination affidavit and marked Ex.A1 to A5 on behalf of the

plaintiff. Matter is posted for cross-examination of PW1. In view of

the bar imposed in the provision, once the trial has commenced no

application or amendment shall be allowed. The said objection was

taken by the parties in the Court below. But without considering the

same, the I.A. filed by the defendants/respondents was allowed.

Hence the same is contrary to the proviso of Order VI Rule 17 CPC.

4. For the benefit of disposal, the proviso Order VI Rule 17 CPC is

extracted below:

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

DR,J CRP.No.7720 of 2018

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."

5. Learned Counsel further submitted that, once the chief

examination affidavit is filed and chief examination is completed,

according to the proviso, the trial has commenced and the parties are

barred to file an amendment and pleadings petition. To support their

contention, they have relied on the judgments of the Apex Court in

between Kailash vs. Nanhku1 In the said case, the trial has

commenced and the witnesses were examined in part. At that stage,

the parties filed for amendment of pleadings petition and the matter

went up to Apex Court where the only ground raised under proviso

Order VI Rule 17 CPC.

6. After notice, learned Counsel appearing on behalf of the

respondents submit that the petitioners/defendants have filed I.A. for

amendment of written statement that item no.6 of the schedule

property is self acquired property. However, the plaintiff has included

the property which stands in their name as one of the items in the

schedule property and as such their properties also in the name of

plaintiff herein and in the name of the other family members. Hence

the plaintiff has influenced to include the items which are in their

name and therefore those properties also to be divided between the

parties. Ex.A1 to A5 are marked and accordingly as advised to

proceed the division of other properties also in the name of other

family members, the present amendment of written statement is filed.

7. Learned Counsel further submits that mere filing of chief

affidavit would not amount to commencement of trial. Here in the

2005 (4) SCC 480

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instant case, only the petitioners filed their chief affidavit and marked

Ex.A1 to A5 and immediately the respondents/defendants have filed

the present application. Hence the proviso of Order VI Rule 17 is not

applicable in the instant case. To support his contention, the counsel

has relied on the judgment of the Hon'ble Supreme Court in Baldev

Singh and others vs. Manohar Singh and another2 wherein it is

recited that:

"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings."

Another judgment of the High Court of Andhra Pradesh at

Amaravati reported in between Aditya Motors, Rep. by its

P.D.Prasad vs. Dogiparthi Venkata Satish and Others3 wherein it

is recited that:

"In the instant case also, issues are only framed and though affidavit in lieu of examination in chief is filed, the recording of evidence has not yet commenced. Therefore, in the well considered view of this Court, the facts of present Case are akin to the facts of the case in Usha Devi and Sajjan Kumar. Hence, this Court is of the considered view that on the ground of mere delay amendments cannot be refused."

Wherein in the identical matter came up for consideration

before the Hon'ble High Court of Judicature at Hyderabad in between

(2006) 6 Supreme Court Cases 498

(2019) 5 ALT 43

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Vojjala Jayamma vs Vojjala Pullaiah4, the question raised in the

said revision is that as per the proviso of Order VI Rule 17 CPC once

the trial has been commenced no amendment is permissible and the

Court below should not allow the amendment petition. The said

revision is disposed of following the judgment of the Apex Court in

B.K.Narayana Pillai vs. Parameshwaran Pillai5 and held that the

only chief affidavit is filed, hence it cannot be said that the trial has