HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.484 of 2022
ORDER:
Defendants in the suit filed the above revision against
the order dated 31.01.2022 in I.A.No.1139 of 2019 in
O.S.No.207 of 2019 (old O.S.No.65 of 2016) on the file of
Additional Chief Metropolitan Magistrate-cum-Senior Civil
Judge, Gannavaram.
2. Respondent, being the plaintiff filed suit O.S.No.65 of
2016 on the file Senior Civil Judge, Gannavaram for
cancellation of registered sale deed dated 07.03.2013 in
respect of plaint schedule property which was obtained by
defendants 1 to 4 by fraud, undue influence and
misrepresentation without any consideration and for
permanent injunction restraining the defendants and their
men from interfering with plaintiff's possession and
enjoyment of the plaint schedule property and also for grant
of permanent injunction restraining the defendants 1 to 4
from alienating the plaint schedule property etc. Suit was
renumbered as O.S.No.207 of 2019 on the file of Additional 2
Chief Metropolitan Magistrate-cum-Senior Civil Judge,
Gannavaram.
3. (a) In the plaint, it was contended interalia that plaintiff
is the absolute owner of plaint schedule property and the
same was gifted to plaintiff by her mother at the time of her
marriage; that pattadar pass book and title deed were issued
in favour of plaintiff; that in February, 2013 defendants 1 to
4 approached and requested the plaintiff to arrange money
for higher studies of defendants 3 and 4 and when the
plaintiff expressed her inability, defendants informed that one
Velagapudi Vasudeva Rao, husband of sister of 2nd defendant
agreed to provide money with a condition of executing
mortgage deed in respect of schedule property; that
considering the future of defendants 3 and 4 and believing
the words of defendant 1 and 2, plaintiff signed all the papers
on the impression that transaction was mortgage deed; that
2nd defendant also took pattadar pass book and title deed.
(b) Plaintiff came to know through Metlapalli Sivaiah,
who is cultivating tenant of schedule property about the
execution of sale deed said to be executed by plaintiff in 3
favour of defendants 1 to 4 for a consideration of
Rs.9,56,000/-; that no consideration was passed and the
defendants have no capacity to pay the sale consideration;
that the plaintiff has been suffering from diseases and
attending different hospitals for treatment and eventually,
filed the suit for the reliefs stated supra.
4. Written statement is filed by defendants 2 to 4 and the
suit is being contested.
5. Pending the suit, plaintiff filed I.A.No.1139 of 2019
under Order VI Rule 17 of CPC to amend the plaint seeking
recover of possession of property.
6. In the affidavit filed in support of said petition, it was
contended interalia that along with plaint I.A.No.243 of 2016
was filed seeking temporary injunction restraining the
defendants from alienating the schedule property.
I.A.No.244of 2016 was filed for ad-interim injunction
restraining the defendants from interfering with possession of
plaint schedule property. Pending those interlocutory
applications, defendants took possession of schedule property
by force in December, 2016; that upon filing memo dated 4
24.04.2017 by the petitioner, I.A.No.244 of 2016 was closed
as infructuous. In view of developments, plaintiff filed
application for recovery of possession of property.
7. Respondents 2 to 4 filed counter and opposed the
application. It was contended interalia that at the time of
execution of sale deed, plaintiff delivered pattadar pass book
and title deed; that revenue authorities updated the revenue
records and mutated the names of defendants; that pattadar
pass book and title deeds were issued; that defendants 2 to 4
are in possession and enjoyment of the property; that plaintiff
has to prove that reliefs sought is within the limitation and
that if the amendment is permitted, it will give unfair
advantage to the plaintiff and prayed the Court to dismiss the
petition.
8. During the enquiry, no oral evidence was let in by the
parties. However, Exs.R-1 to R-7 were marked on behalf of
respondents/defendants.
9. Trial Court by order dated 31.01.2022 allowed the
application. Aggrieved by the same, respondents/defendants
filed the above revision.
5
10. Heard Sri P.Prabhakara Rao, learned counsel for
revision petitioners/defendants and Sri Suresh Kumar
Chodisetti, learned counsel for respondent/plaintiff.
11. Learned counsel for revision petitioners would submit
that issues in the suit were framed on 16.07.2019 and the
application was filed on 11.12.2019. Since, the trial of the
suit is commenced, no amendment is permitted. No reasons
were assigned as to why the application was not filed
immediately. He also would submit that revision
petitioners/defendants by filing written statement asserted
about possession. He also would submit that no specific date
was assigned in the affidavit regarding the alleged
dispossession and the amendment is barred by limitation.
12. Learned counsel for respondent/plaintiff supported the
order of the trial Court.
13. Undisputed facts in the case are that plaintiff in the
suit is mother of 1st defendant and mother-in-law of 2nd
defendant. Defendants 3 and 4 are granddaughters. Thus,
parties are closely related.
6
14. Plaint schedule property as per the averments in the
plaint, was gifted to the plaintiff by her mother at the time of
her marriage. Defendants 3 and 4 are prosecuting
Engineering and BDS. Plaintiff averred in Para-8 of plaint
that she has been suffering with diseases and has been
taking treatment from different hospitals. Regarding the
ailments, defendants also contended in the written statement
that plaintiff offered to sell the property with her own will
with an intention to clear debts borrowed from several money
lenders to meet her medical expenses.
15. Suit was filed on 08.06.2016 for cancellation of
registered sale deed dated 07.03.2013. Application seeking
amendment was filed on 11.12.2019. Written statement was
filed in the suit, issued were settled on 16.07.2019 and
thereafter suit was posted for trial. Learned counsel for
revision petitioners would submit that since the issues were
framed, trial is deemed to be commenced and hence, trial
Court ought not to have allowed the amendment. Learned
counsel for revision petitioners relied on Ajendraprasadji N.
Pande and Ors. Vs. Swami Keshavprakeshdasji N. and 7
Ors.1 and Baldev Singh and Ors. Vs. Manohar Singh and
Ors.2.
16. The Hon'ble Apex Court in Usha Devi Vs. Rijwan
Ahamd and Ors.3 while referring to the judgment in
Ajendraprasadji's case (supra-1), observed thus:
"From the above quoted passage, it appears that the decision did not hold that settlement of issues marks the commencement of trial. Earlier in the decision, the Court exhaustively examined the proceedings from date to date and on that basis came to hold and find that the prayer for amendment was made after the commencement of trial."
17. In fact, in Usha Devi's case (supra-3), suit was filed for
permanent injunction restraining the defendants from
interfering with rights of plaintiff over the schedule property
and also to direct the defendants not to build or demolish the
building already in existing in the suit land. Description of
property was sought to be amended, after framing of issues.
The said application was dismissed by the trial Court and the
High Court interfered with the above decision and eventually
allowed the appeal on payment of costs. When it was sought
to be contended before the High Court by placing reliance on
1 (2006) 12 SCC 1 2 (2006) 6 SCC 498 3 (2008) 3 SCC 717 8
Ajendraprasadji's case (supra-1) and contended that
settlement of issues is the date of commencement of trial, the
Hon'ble Apex Court observed as extracted supra. In fact, the
Hon'ble Apex Court also observed as follows:
"We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan Kumar [(2005) 13 SCC 89] and following that decision the prayer for amendment in the present appeal should also be allowed."
18. The Hon'ble Apex Court in Baldev Singh and others
Vs. Manohar Singh and another4, held thus:
"17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 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 hereinbefore, 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 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."
4
(2008) 3 SCC 717 9
19. In Sajjan Kumar Vs. Ram Kishan5, the Hon'ble Apex
Court held thus
"5. 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 to 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."
20. In the instant case, issues were framed. Going by the
material available on record including the observations of the
trial Court, affidavit in lieu of chief examination is not filed.
In view of the same, this Court is of the considered view that
trial Court rightly exercised its discretion and allowed the
petition filed by plaintiff seeking amendment.
21. As noted supra, parties to the suit are closely related.
Plaintiff, who is senior citizen filed the suit to cancel the
5 (2005) 13 SCC 89 10
registered document. In Pankaja and Ors. Vs. Yellappa (D)
by Lrs. and Ors.6, the Hon'ble Apex Court held thus:
"If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed."
22. In Revajeetu Builders and Developers vs.
Narayanaswamy and Sons and Ors.7, the Hon'ble Apex
Court observed that some basic principles emerge which
ought to be taken into consideration while allowing or
rejecting the application for amendment, which are:
(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.
6
AIR 2004 SC 4102 7 (2009) 10 SCC 84 11
23. In Abdul Rehman and Ors. Vs. Mohd. Ruldu and
Ors.8, the Hon'ble Apex Court held thus:
"All amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."
24. Suit is one for cancellation of sale deed. Consequential
relief, initially sought for, is injunction. By virtue of
amendment, plaintiff is asking for relief of recovery of
possession instead of injunction. The nature of the suit will
not be changed by virtue of amendment. The contention of
revision petitioners/defendants that the revenue authorities
updated revenue records and issued pattadar pass book and
title deed and in fact, they have been in possession of the
property from the date of suit document, are issues to be
decided after adducing evidence. Learned counsel for revision
petitioners relied on the judgment of the Hon'ble Apex Court
in Pandit Malhari Mahale Vs. Monika Pandit Mahale and
others9. A perusal of facts therein would indicate that
8 (2012) 11 SCC 341 9 (2020) 11 SCC 549 12
evidence was started and thereafter application was filed by
the plaintiff. Hence, the principle laid down in the said
decision will not apply to the facts of this case.
25. The correctness or falsity of the case in the amendment
should not be gone into at the time of considering as to
whether an application for such amendment should be
allowed or not. If an amendment which introduces a totally
different, new and inconsistent case or changes the
fundamental character of the case, such amendment may not
be allowed. However, amendment which would not cause
injustice to the opposite party and may not change the nature
of suit would normally be permitted. The primary
consideration of the Court would be to see as to whether such
amendment is necessary for determining the real question in
controversy and whether the same can be allowed without
causing prejudice to the other side.
26. The due diligence test as per the proviso to Order VI
Rule 17 of CPC, as indicated supra, is made out by the
plaintiff in the case on hand. Plaintiff, mother is fighting
litigation without the assistance of son. Though the daughter- 13
in-law, 2nd defendant contended that 1st defendant is addicted
to vices and has been residing with his mother, these are
questions to be answered during the course of trial.
27. The scope of revision under Article 227 of the
Constitution of India was considered by Hon'ble Apex Court
in Surya Dev Rai vs. Ram Chander Rai and Ors.10. The
order of the lower is neither perverse nor the lower court
exceeded its jurisdiction while allowing the petition. Hence,
the order of the trial Court allowing the amendment does not
call for interference of this Court under Article 227 of the
Constitution of India.
28. Accordingly, the Civil Revision Petition is dismissed at
the admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications
shall stand closed.
_________________________ SUBBA REDDY SATTI, J
1st November, 2022
PVD
10 (2003) 6 SCC 675
