Andhra Pradesh High Court - Amravati

Tananki Venkateswara Rao vs Andhra Pradesh State Agro ... on 12 December, 2022

Bench: Subba Reddy Satti

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

            CIVIL REVISION PETITION No.1206 of 2022

   Tananki Venkateswara Rao, S/o Late Janakiramayya, aged
   about 47 years, Occ: Private Employee, R/o M. Nagulapalli,
   Dwaraka Tirumala Mandal, West Godavari District and others.

                                                      ... Petitioners

                                Versus

   Andhra Pradesh State Agro Industrial Development Corporation,
   Rep. by its Regional Manager, Eluru, West Godavari District.

                                                      ... Respondent

Counsel for the petitioners              : Sri Siva Sankara Rao Borra
Counsel for respondent                   : Sri T.S.V.L.N. Swamy

                                ORDER:

Defendants in the suit filed the above civil revision

petition under Article 227 of the Constitution of India against

the order, dated 09.12.2021 in I.A.No.1391 of 2019 in

O.S.No.673 of 2014 on the file of learned Additional Senior Civil

Judge, Eluru.

2. Respondent/plaintiff filed suit O.S.No.673 of 2014

seeking permanent injunction restraining the defendants, their

agents, men and representatives from alienating the plaint

schedule properties.

3. The averments made in the plaint, in brief, are:

Plaintiff Corporation was established by the Government

for the purpose of buying or selling of Chemical fertilizers and

pesticides apart from other work; that plaintiff/corporation had

an agro service centre at Eluru, under the control Regional

Manager; that the main activity of the plaintiff/corporation is

sale of tiers, tubes, batteries and fruit products; that defendant

No.1 who was auxiliary assistant was incharge of said

corporation for the period from 19.05.1987 to 12.03.1993,

misappropriated stock and funds of the corporation; that

plaintiff filed O.S.No.34 of 1996 on the file of learned Principal

Senior Civil Judge, Eluru, for recovery of Rs.27,01,722-91 paise

with subsequent interest and costs for embezzlement; that

pending the suit, I.A.No.392 of 1996 was filed to attach

defendant's share of petition schedule property therein; that

after elaborate trial, suit was decreed on 28.04.2006; that

pursuant to the decree, E.P.No.203 of 2007 was filed to realize

decreetal amount by way of conducting sale; that plaintiff

corporation emerged as highest bidder in the auction conducted

on 13.10.2008; that sale certificate was issued in the name of

the Corporation; that defendant Nos.2 and 3 filed E.A.Nos.1093

and 1094 of 2008 respectively under Order XXI Rule 90 and 47

of CPC to set aside the sale in respect of the suit schedule

property; that they claimed property by virtue of Will, dated

19.09.2008; that both the claim petitions were dismissed on

17.07.2012 and against said dismissal, no appeals were filed;

that recently plaintiff-corporation came to know that defendants

are trying to alienate property to third parties and hence, suit is

filed for the relief stated supra.

4. Defendant No.1 filed written statement and contended

inter alia that he is nothing to do with the suit schedule

property and those properties are self-acquired properties of

Thananki Janaki Ramayya; that said Thananki Janaki Ramayya

bequeathed his property to his wife Seethamma, defendant No.2

and settled some properties to defendant No.3; that defendant

Nos.2 and 3 are real owners of the property and they are not

parties to O.S.No.34 of 1996. Hence, prayed to dismiss the suit.

5. Pending the suit, plaintiff filed I.A.No.1391 of 2019 under

Order VI Rule 17 and Section 151 of CPC to amend the plaint by

incorporating para 8(A) (B) and to amend valuation.

6. In the affidavit filed in support of the petition, while

reiterating averments in the plaint, it was contended inter alia

that plaintiff purchased undivided half share in item Nos.1 to 3

relating to defendant No.1 in the joint family properties; that

defendants are eating away all the fruits of suit schedule

properties and squatting on the properties without partitioning

half share of plaintiff in item Nos.1 to 3 and without delivery of

item Nos.4 and 5; that plaintiff is seeking partition of the suit

schedule property and to alienate his share and the proposed

amendment will not cause any prejudice to the defendants and

to avoid multiplicity of proceedings, amendment petition is filed.

7. Defendant No.3 filed counter and opposed the application.

It was contended inter alia that defendant No.1 is her brother

and defendant No.2 is her mother; that the property shown in

the suit schedule property as well as in the proposed

amendment, are not correct; that the suit schedule properties

are self-acquired properties of Tananki Janaki Ramayya and

during his lifetime he executed registered Will, dated

19.09.2008 in favour of defendant No.2; that he also alienated

properties to third parties during his life time and settled an

extent of Ac.1-50 cents in favour of defendant No.3 towards

pasupu kumkama; that defendant Nos.2 and 3 have been

enjoying the suit schedule property by virtue of Will, dated

19.09.2008; that defendant No.2 in turn executed Will, dated

13.10.2015 and bequeathed property to grandson and

eventually prayed to dismiss the petition.

9. Trial court by order dated 09.12.2021 allowed the

petition. Aggrieved by the same, the above revision is filed.

10. Heard both sides.

11. Learned counsel for the petitioner/defendant would

contend that proposed amendment changes the nature of the

suit. He would also contend that after commencement of trial,

application was filed and the affidavit filed in support of the

affidavit does not indicate reasons seeking amendment.

12. On the other hand, learned counsel for respondent

No.1/plaintiff supported the order of the trial Court.

13. The point that arises for consideration is whether Court

below exceeded its jurisdiction in ordering I.A.No.1391 of 2019?

14. Plaintiff filed suit seeking perpetual injunction restraining

defendants from alienating the suit schedule property. Even in

the plaint, it was contended about plaintiff's filing suit in

O.S.No.34 of 1996; passing of decree in said suit, filing of

execution petition and plaintiff's emerging as highest bidder and

issuance of sale certificate by the executing Court. The

averments in the plaint specifically show that the defendants

are trying to alienate the suit schedule properties, as such

plaintiff filed the above suit for injunction. Pending the suit, the

present application is filed seeking amendment of suit, as one

for partition.

15. Court below on careful consideration of the available

material on record, to avoid multiplicity of the proceedings and

litigation allowed the petition.

16. Learned counsel for the petitioner contends that by way of

proposed amendment, nature of suit will be changed and on the

other hand, learned counsel for respondent No.1 contends that

to avoid multiplicity of proceedings, amendment is necessary.

17. It is settled law that the amendments, which are

necessary for determining real questions in controversy between

the parties and if granting of such amendment sub-serves the

ultimate cause and avoids further litigation, the same should be

allowed.

18. In Revajith Building Developers v. Narayana Swamy and

Sons, the Hon'ble Apex Court culled out factors to be considered

while dealing with application for amendment.

"On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule

17. These are only illustrative and not exhaustive."

19. The Hon'ble Apex Court in Life Insurance Corporation

of India vs. Sanjeev Builders Private Limited and Ors.1,

after considering number of judgments, summed up thus:

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 Code of Civil Procedure 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 Code of Civil Procedure is, thus, misconceived and hence negatived.

(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

AIR 2022 SC 4256

of the word "shall", in the latter part of Order VI Rule 17 of the Code of Civil Procedure.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(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) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(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) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(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) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the

opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta Vs. Gagninder Kr. Gandhi and Ors.)"

20. In the present case, a perusal of the plaint would indicate

that plaintiff is asserting title over the property by virtue of

execution proceedings in E.P.No.203 of 2007 in O.S.No.34 of

1996. When defendants tried to alienate the property, plaintiff

being the auction purchaser, filed the above suit seeking

injunction restraining the defendants from alienating the suit

schedule property. Plaintiff being purchaser of the property in

Court auction, ought to have filed suit for partition instead of

injunction, in view of the title vested to the plaintiff. In fact, the

claim petitions filed by defendant Nos.2 and 3, which were

dismissed are also on record.

21. It is not the case of the defendants the admissions or facts