Andhra Pradesh High Court - Amravati

Chavakula Venkata Subba Raju vs Vanam Durgu Naidu on 16 December, 2022

         THE HON'BLE Ms. JUSTICE B. S. BHANUMATHI


             Civil Revision Petition No.1378 of 2019

ORDER:

This Civil Revision Petition is directed against the orders,

dated 15.03.2019, dismissing I.A.No.895 of 2018 in O.S.No.626 of

2015 on the file of the Court of I Additional District Judge,

Visakhapatnam, filed under Order VIII Rule 9 read with Section 151

CPC seeking leave of the Court to file additional written statement

of the 1st defendant.

2. Heard Sri Yellabandi Ramatirtha, learned counsel for the

revision petitioner/1st defendant and Sri C.V.R. Rudra Prasad,

learned counsel for the 1st respondent/plaintiff.

3. The 1st respondent/plaintiff filed the suit for declaration that

the plaintiff is the absolute owner of the suit schedule property of

320 square yards out of 1000 square yards of site situated in

Sy.No.56/2 shown as "E F G H" in the plaint schedule rough sketch

and for delivery of vacant possession of the same to the plaintiff

with metes and bounds by removing the wall constructed therein by

the 1st defendant at his own cost within a stipulated period failing

which the plaintiff may be permitted to remove the same and

recover the costs incurred thereto from the 1st defendant; to grant

permanent injunction against the 1st defendant not to deal with the

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suit schedule property in any manner including development,

making constructions, alienation or encumber or creating third party

interest whatsoever the suit schedule property, i.e., 'E F G H' of the

plaint schedule rough sketch, and to declare the approvals of the

2nd and 3rd defendants sanctioned to the 1st defendant as null and

void and for costs of the suit. The sketch is shown hereinbelow:

3.1 The main case of the plaintiff is that Gandham Rama Rao is

originally the owner of 1000 square yards of site, and later, he sold

middle part of 320 square yards to Smt. Boddu Kamala on

16.11.2000 under a registered possessory sale agreement-cum-

general power of attorney and the said property is bounded on

north and south sides by the remaining site of the vendor and that

Smt. Boddu Kamala, in turn, sold the same property to the plaintiff,

Vanam Durgu Naidu, under a registered sale deed dated

28.11.2002, and thereafter, the plaintiff was in physical possession

and enjoyment of the suit schedule property of 'EFGH' with all

absolute rights and possession as his vendor did. Later, the plaintiff

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sold away the said property to Pothina Siva Lingeswara Rao on

12.01.2017 under an agreement of sale by receiving the entire sale

consideration of Rs.6,50,000/- except Rs.10,000/-. The transaction

could not be registered as land in Sy.No.56/2 of Pothina Mallayya

Palem village is shown in the list of properties prohibited from

registration under Section 22-A of the Registration Act, 1908. As

such, at the request of the vendee, Pothina Siva Lingeswara Rao,

the plaintiff executed a special power of attorney in favour of the

vendee on 24.08.2007. The special power of attorney happened to

stay unpredictably in Visakhapatnam for quite long time to assist his

uncle for cancer treatment and during May, 2015, he came to know

and noticed that the 1st defendant constructed a compound wall

extending from south to north by including the suit schedule

property as if his property is a contiguous bit as shown in plaint

rough sketch as 'A B I J ' by leaving a tiny bit of land towards its

north shown as 'I J C D' in the rough sketch. Immediately, the

special power of attorney holder approached the 1st defendant and

when questioned the same, the 1st defendant stated that he had

purchased 680 square yards of site from the same vendor, i.e.,

Gandham Rama Rao, under a registered sale deed, dated

07.02.2003. Then, the special power of attorney holder informed

the 1st defendant about purchase of property by him and his vendor

and the predecessors-in-title and advised the 1st defendant to get a

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correction deed obtained. However, the 1st defendant did not heed

the advice of the special power of attorney holder and foisted a

false report against the special power of attorney holder upon which

the police of P.M.Palem police station registered a false case in FIR

No.448/2015 under Sections 447, 427 IPC read with Sections 3 & 4

of A.P Land Grabbing Act without making proper investigation. The

same is being contested by the special power of attorney holder.

During all these events, the fact of approving building plan, vide

Rc.BA 13359/2013/ACP1, dated 26.10.2013, sanctioned by the 2nd

defendant to the 1st defendant for construction of an apartment in

the disputed site shown as 'A B I J' came to their notice. The 3rd

defendant also accorded LRS vide Rc.No.3239/10/L5 to the building

plan approved by the 2nd defendant. Perhaps, the defendants 2 & 3

might have sanctioned approvals basing on the document submitted

by the 1st defendant which is non est in the eye of law as it is

defective. Since there is a small error in the sale deed, dated

28.11.2002, regarding registration number of the document of the

predecessors-in-title, a registered rectification deed, dated

22.06.2015, was executed by Smt. Boddu Kamala as the document

number is mentioned as 2221/2000 instead of 2201/2000 in the

registered sale deed, dated 28.11.2002. The special power of

attorney holder got issued registered legal notice, dated

21.08.2015, to both defendants 2 & 3 through his counsel with all

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the relevant documents with a request to cause enquiry. Notices

were received by them. The 1st defendant, instead of rectifying

defective document, arrogantly started making constructions in the

site shown as 'A B I J'. Hence, the suit is filed.

3.2 Initially, the 1st defendant filed written statement admitting

the fact that Gandham Rama Rao purchased 1000 square yards and

was in possession and enjoyment of the same. But it is further

stated that Gandham Rama Rao is ceased of possession and

enjoyment after execution of the sale deeds in favour of the 1 st

defendant and Smt. Boddu Kamala. It is further denied that

Gandham Rama Rao sold 320 square yards of middle part of site

out of 1000 square yards and contended that no prudent man would

sell so. It is further stated that the boundaries in the document of

Boddu Kamala are not tallying with the document of Gandham

Rama Rao and moreover there are over writings and striking off in

the eastern boundary in the document of Smt. B. Kamala and there

is variation in the details of the schedule property in the document

in favour of V. Durgu Naidu. This defendant contended that the sale

deed in his favour clearly shows that 680 square yards of site sold

to him is bounded by 30 feet wide road of west side and north side

and is located within the boundaries mentioned in the document.

The plaint drawn rough sketch is made applicable to the case of the

plaintiff and is imaginary and that the special power of attorney is a

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cooked up document for the purpose of filing of the suit. The

allegation that the property in Sy.No.56/2 is prohibited under

Section 22A of the Registration Act is denied since encumbrance

certificate issued by SRO, Madhurawada, dated 04.06.2015, shows

certain documents were registered in respect of the land in the said

survey number. The plaintiff not only attempted but demolished

the boundary wall constructed by the 1st defendant on his property

in the year 2003. This defendant constructed row houses with due

approval from the panchayat. For development of the property, this

defendant removed row houses and retained boundary wall. This

defendant intended to construct an apartment in this property of

680 square yards and obtained LRS plan from the 3rd defendant who

issued it after due verification of the physical measurements. The

old row houses were assessed to property tax and electric power

connection was also established. The approval of plan by GVMC

supports the case of this defendant. The suit is bad for non-joinder

of necessary parties since Gandham Rama Rao is the original owner

of 1000 square yards of site.

3.3 Later, I.A.No.553 of 2015 filed by the plaintiff seeking interim

injunction was allowed. The matter has been carried forward in

appeal in C.M.A.No.217 of 2016 before the High Court, but the

same was dismissed.

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3.4 Thereafter, the 1st defendant filed petition to receive

additional written statement stating that he was advised by the

counsel that his written statement needs some more elaboration of

facts. Therefore, he sought permission to receive the additional

written statement. The petition was opposed by filing counter of

the plaintiff that such permission cannot be granted since the 1 st

defendant contended from the beginning with different pleas and

having lost his legal battle made this attempt to further protract the

matter.

4. Having heard both parties, the trial Court dismissed the

petition observing that the pleadings taken in the additional written

statement are found to be only an elaboration of what is already

pleaded in the original written statement and that is sufficient to

make a concise statement of material facts and the rest of them can

be placed as evidence. The trial Court further observed that it is

not a case of the petitioner that these facts were omitted while

drafting the original written statement though he instructed his

advocate.

5. Having been aggrieved by the dismissal of the petition, the

revision petition is filed.

6. Learned counsel for the revision petitioner submitted that

since the petitioner has filed the additional written statement before

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conclusion of the trial, liberal approach must be adopted by the trial

Court to receive the additional written statement, more particularly

when there is no withdrawal of the admission made for or against

any party and no prejudice is likely to be caused to the

respondent/plaintiff. He further submitted that enough opportunity

must be given to any party to place all the material facts on record

for just, proper and complete adjudication of the dispute. He placed

reliance on the following decisions:-

(i) Vyricharla Educational Society v. B. Krishna Mohan1

(ii) S.Venkata Ramanaiah and another v. S. Venkateswarlu Gupta and others2

(iii) Olymptic Industries v. Mulla Hussainy Bhai Mulla Akberapally and others3

7. On the other hand, learned counsel for the respondent

submitted that the conduct of the revision petitioner is blame

worthy and the attempt to file additional written statement is only

to fill up the lacunae in his case since he lost his battle in the

interlocutory proceedings till High Court and just to cover up the

laches this petition is filed.

8. Though Order VIII Rule 9 CPC unlike Order VI Rule 17 CPC

does not specify any parameters, both can be decided in the same

manner as their effect indeed would be the same.

2019 (5) ALT 209 (AP)

2009 (5) ALD 211

(2009) 15 Supreme Court Cases 528

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9. In the present case, the 1st defendant in the additional written

statement submitted that Gandham Rama Rao and the 1 st

defendant were friends and that the 1st defendant reposed

confidence in Gandham Rama Rao, but breaching the trust,

Gandham Rama Rao purchased the property in his name with the

money of the 1st defendant as the 1st defendant was staying in Doha

in Qatar from the year 1982 onwards and that the defendant never

thought that that Gandham Rama Rao would backstab him and later

came to know that Gandham Rama Rao intentionally executed

document of agreement of sale in the name of his nominee, Boddu

Kamala, for creating mischievous litigation and that the 1 st

defendant filed civil suits and criminal case against Gandham Rama

Rao. The 1st defendant further narrated the boundaries with their

details in the documents in favour of Boddu Kamala and the plaintiff

and explained how there is variation in the boundaries. He further

explained how boundaries in his documents tally on ground and

vary with the documents of plaintiff's predecessor-in-title. It is

further explained that the documents of plaintiff clearly show that

the land sold to the plaintiff is situated in one side of 1000 square

yards of site, but not in its middle. He elaborated the facts

previously stated about construction of fencing around the land

purchased by him and obtaining approvals from the Panchayat and

enjoying the property since 2003, removal of six row houses in this

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site and their demolition for the purpose of raising a multi-storied

complex and till that time the properties being enjoyed by his

employees and relatives to the knowledge of one and all till the year

2015. It is also pleaded that till the year 2015, the plaintiff or

anybody has raised voice against title or possession of the 1 st

defendant and thus, the 1st defendant perfected title by adverse

possession. It is further pleaded that the conduct of the plaintiff is

to encroach the northern boundary of the defendant and that the

plaint is a result of collusion with Gandham Rama Rao since his

conduct was exposed by the defendant in the previous litigation.

Again, this defendant pleaded that the suit is bad for mis-joinder

and non-joinider of necessary parties. Thus, in essence, the 1st

defendant, while reiterating the earlier case, elaborated his case

with more details and also additional pleadings against the conduct

of Gandham Rama Rao and the previous disputes with him and

alleged that he is the man behind filing of the suit.

10(i) In Vyricharla Educational Society (1 supra), it was held

paras 35, 36 & 37 as follows:

"35. In terms of Order VIII Rule 9 C.P.C., additional pleadings can be raised by a party to the suit, be it the plaintiff or the defendant. In order to support his defence, when the plaintiff has chosen to file an additional written statement in OS No. 31 of 2013, objections raised on behalf of the defendants to receive the same, cannot stand. It cannot be stated that by the

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averments in the additional written statement, the plaintiff has made a departure from his defence in the suit. Even otherwise, considering the fact that OS No. 2 of 2016 and OS No. 31 of 2013 are being tried together, where the parties have to prove their respective cases, by adducing appropriate evidence, the proposed additional written statement cannot cause to any prejudice to the defendants. Added to it, the proposed amendment of the plaint in OS No. 2 of 2016 is to the very same effect as is pleaded in the additional written statement.

36. Even otherwise, in all the situations it is not as though the parties are precluded from filing subsequent pleadings either by means of rejoinder by the plaintiff in order to controvert the case of the defendants or in order to meet the case sought to be projected by the plaintiff by the proposed amendments, by filing additional written statement by the defendants. Therefore, even on this score it cannot be stated that the objections raised by the defendants for receiving additional written statement as per the orders in IA No. 91 of 2017 in OS No. 31 of 2013, are proper.

37. On behalf of the plaintiff a judgment of this Court in P. Hajiram Bi and others v. M. Ismail Khan and others, MANU/AP/0218/2012 : 2012 (3) ALD 669, is relied on. In this ruling in Para 9, it was observed:

"The discretion of the Court to allow subsequent pleadings under Rule 9 of Order VIII CPC, is wider than the discretion given to it by Rule 17 of Order VI CPC while in both the events, the parties have to necessarily show diligence, in cases, falling under Rule 9 of Order VIII C.P.C., the Court can show more latitude towards the party in allowing subsequent pleadings by the defendants."

When the learned Trial Judge, exercised discretion to receive additional written statement, it cannot be found fault with, in

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the backdrop of the circumstances of these cases. Therefore, this point is also answered against the defendants."

(ii) In S. Venkata Ramanaiah and Ors. (2nd supra), it was held

at para No.15 as follows:

"15. As already aforesaid, no doubt this application had been filed after a lapse of two years after filing the written statement. But, it is not in serious controversy that this is just a pre-trial amendment by virtue of an additional pleading. It is needless to say that such amendments relating to the pleadings may have to be liberally allowed? especially to avoid multiplicity of proceedings and hence the stand taken that this proposed additional pleading is thought of at a belated stage cannot be accepted. Apart from this aspect of the matter, certain submissions had been made that the pleas, which are being raised by way of rejoinder, are not only additional pleas but also are fresh and inconsistent pleas. As the plea of fraud in obtaining sale deed is concerned, though specifically an averment was made in the affidavit filed in support of the application, this Court is unable to find any such plea taken in the proposed rejoinder placed before this Court. It is no doubt true that in relation to the family arrangement the pleas now taken are that the said family arrangement is inadmissible and a further plea also had been taken that the same had not been acted upon. It is needless to say that the merits and demerits of a proposed amendment need not be put to test at this stage and these aspects may have to be decided at the appropriate stage in the light of the evidence which may be adduced by the parties. However, in the light of the elaborate rejoinder which had been permitted to be filed by the learned Principal Junior Civil Judge, Dhone, this Court is of the considered opinion that the petitioners and the other contesting defendants, if any, are

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to be permitted to put in the additional written statements in this regard, if they are so advised."

(iii) In Olympic Industries (3rd supra), it was held at paras 10,

14, 15 & 18 as follows:

"10. So far as this ground is concerned, we do not find that delay is a ground for which the additional counter statement could not be allowed, as it is well settled that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, delay is no ground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by cost. That apart, the delay in filing the additional counter statement has been properly explained by the appellant.

14. In our view, this is also not a ground for which the High Court could interfere with the concurrent orders of the Rent Control Tribunal and reject the application for permission to file additional counter statement. In our view, even by filing an amendment or additional counter statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the counter statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. [See: Usha Balasaheb Swami and Ors. v. Kiran Appaso Swami and Ors. MANU/SC/7318/2007: AIR 2007 SC 1663. Therefore, we are unable to agree with the High Court on this ground as well.

15. It is also well settled that the courts should be more generous in allowing the amendment of the counter statement

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of the defendant then in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional counter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter statement was rejected by the High Court on the ground that while allowing such additional counter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage.

18. It is also well settled that while allowing additional counter statement or refusing to accept the same, the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided...."

11. A perusal of the above additional pleadings would indicate

that they are also necessary facts to be stated by the 1st defendant

as a part of his defence so that the real dispute may be placed for

effective, appropriate and complete adjudication. The veracity of

these pleadings cannot be discussed at this stage. Since the trial

has not yet commenced, a fair opportunity to the 1 st defendant to

place all facts in his written statement ought to have been given. If

at all there is any delay in his approach, the same can be

compensated by imposing some terms on him, but he cannot be

prevented from filing additional written statement.

12. The fact that the trial has not commenced is admitted. When

it is the opinion of the trial Court that the defendant has not