HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.950 of 2021
ORDER:
The petitioners herein had filed O.S.No.162 of 2015 before the I
Additional Junior Civil Judge, Kakinada for permanent injunction against
the respondents in relation to the suit schedule property. The suit
schedule property described in the schedule to the plaint was two pieces
of land consisting of Ac.0.10 cents each. Thereafter, the petitioners
moved I.A.No.164 of 2021 seeking amendment of the extent of the
schedule property. The same came to be dismissed by the trial Court. The
petitioner again moved I.A.No.323 of 2021 before the trial Court for
amendment of the plaint schedule property, again on the ground that the
schedule properties in Items 1 and 2 are to an extent of Ac.0.09 cents
each and not Ac.0.10 cents each. The petitioners also sought addition of
para X-AA and para XIII-AA. The said para XIII-AA was for addition of
prayer and declaration that the petitioners are the owners of the plaint
schedule property and for permanent injunction. This application came to
be dismissed on 12.07.2021. Aggrieved by the said order of dismissal, the
petitioners have approached this Court.
2. The trial Court rejected the applications on the ground that
I.A.No.164 of 2021, which was filed essentially for the same purpose, has
already been dismissed and the prayer for amendment of the schedule
was hit by the principle of res judicata. As far as the second amendment
of seeking declaration of right over the property is concerned, the said
amendment would change the structure of the suit itself and the delay in
filing the application has not been explained to the satisfaction of the
Court nor has dud diligence in filing the application at the earliest has 2 RRR,J C.R.P.No.950 of 2021
been demonstrated. In fact the trial Court took the view that there was
suppression of fact in the proposed amendment.
3. Aggrieved by the said order, the petitioners have
approached this Court by way of the present revision petition.
4. Sri A.S.C. Bose, learned counsel appearing for the petitioners
relying upon Ramesh Kumar Agarwal vs. Rajmala Exports Private
Limited and Ors.,1; Bhanoth Mangamma vs. Chitla Ram Reddy2;
and G.S. Prakash vs. Polasa Hanumanlu3, would submit that the
application moved by the petitioners ought to have been allowed. He
would submit that applications of this nature require to be considered
liberally. However, the trial Court had taken a legalistic view of the entire
case and dismissed the application of the petitioners. He submits that this
order of the trial Court requires to be set aside and the petitioners be
granted adequate opportunity to amend their pleadings.
5. In Ramesh Kumar Agarwal vs. Rajmala Exports
Private Limited and Ors., it is true that the Hon'ble Supreme Court had
held that applications for amendment require to be viewed liberally.
However, this was a case where a pre-trial application for amendment had
been allowed by the trial Court and the said order was upheld by the
Hon'ble Supreme Court. For the reasons that would be set out below, the
ratio of this judgment would not be applicable to the present case.
6. In Bhanoth Mangamma vs. Chitla Ram Reddy one of
the issues that had come up before the Court was whether an amendment
for declaration of title and recovery of possession in a suit for permanent
injunction would alter the nature of the suit. The erstwhile High Court of
1 2012 (5) SCC 337 2 2013 (5) ALT 77 3 2015 (1) ALD 270 3 RRR,J C.R.P.No.950 of 2021
Andhra Pradesh took the view that such an amendment would not amount
to change the nature of the suit itself. To that extent the order of the trial
Court in the present case would have to be set aside.
7. In G.S. Prakash vs. Polasa Hanumanlu a learned Single
Judge of the erstwhile High Court of Judicature at Hyderabad for the State
of Telangana and the State of Andhra Pradesh, after a review of the law
on this issue, had summarised the law in the following amendment.
"Instances where amendments have to be allowed:
(a) All pre-trial stage (prior to examination of witnesses) amendments which do not alter the nature and character of the suit and substitute or introduce new cause of action;
(b) In cases of pending or post-trial amendments, the Court must allow the same subject to the applicant, in addition to satisfy the condition (a) supra, satisfying two other conditions, viz., (i) that the amendment is necessary for determining the real questions in controversy and (ii) that despite due diligence, the applicant could not move the application at an earlier stage;
(c) Where, the proposed amendment will not work injustice or cause prejudice to the other side;
(d) Where, by the proposed amendment the position of the other party will be altered, but the same can be compensated by costs;
(e) Even where the proposed amendment introduces inconsistency in pleadings, if by the proposed amendment, the party does not seek to resile from the admissions if any made in the original pleadings;
(f) Where the proposed amendment relates to a time barred claim and the Court is satisfied that allowing such amendment really subserves the cause of justice and avoids further litigation.
Instances where amendments have to be refused:
(i) Where by the proposed amendment the party seeks to alter the nature, character and constitution of the suit (mere inconsistent pleadings may not, in all cases, change the nature and character of the suit) or substitute cause of action or introduce a distinct cause of action;
(ii) where the valuable defence by way of admissions by a party has accrued to the opposite party and by the proposed amendment the party intends to resile from such admissions;
(iii) where the position of the other party will be altered by the proposed amendment and the injury caused to him by such alteration could not be compensated in costs.
(iv) Where the proposed amendment lacks bona fides and is far too belated and the party seeking the amendment was not diligent in approaching the court;
(v) Where a fresh suit, if instituted on the proposed amendments, will be barred by law."
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C.R.P.No.950 of 2021
8. The above decision clearly stipulates, at serial No.(b), that
any post trial application for amendment has to satisfy two conditions
before any further consideration of the said application can be taken up.
Firstly, whether such an amendment is necessary for determining the
questions in controversy and secondly that despite due diligence, the
applicant could not move the application at an earlier stage.
9. In the present case, the petitioners have not made out any
case to show that this application could not have been moved at an earlier
stage despite due diligence of the petitioners. No explanation of any
nature is given as to why the present application could not have been
moved earlier.
10. In the circumstances, it must be held that the order of the
trial Court does not require any further interference from this Court.
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.
2nd February, 2022 Js.
5 RRR,J
C.R.P.No.950 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
C.R.P.No.950 of 2021
2nd February, 2022
Js.
