Garisa Venkata Reddy vs G Rama Chandra Reddy
2022 Latest Caselaw 8734 AP

       HON'BLE SRI JUSTICE SUBBA REDDY SATTI

          CIVIL REVISION PETITION No.1415 of 2022

ORDER:

Defendants in the suit filed the above civil revision

petition under Article 227 of the Constitution of India against

the order, dated 23.06.2022 in I.A.No. 689 of 2021 in O.S.No.13

of 2012 on the file of learned VI Additional District Judge,

Kadapa.

2. Respondents/plaintiffs filed O.S.No.13 of 2012 for

declaration of title, permanent injunction and alternatively for

the relief of recovery of possession of suit schedule property.

Suit schedule property is Ac.4-00 cents of land in D.No.28/1A.

Plaintiffs are claiming title to the property by virtue of registered

sale deed, dated 02.02.2007 and also the rectification deed,

dated 16.06.2008 with regard to sub-division number of the suit

survey number.

3. Defendants filed written statement and contended inter

alia that plaintiffs earlier filed suit in O.S.No. 529 of 2008.

I.A.No.1145 of 2008 was for temporary injunction and the same

was dismissed; that plaintiffs filed CMA No.11 of 2009 on the

file of learned I Additional District Judge, Kadapa. Later

plaintiffs filed I.A.No.826 of 2009 for amendment of plaint

seeking declaration of title and delivery of possession and the

same was allowed. Principal Junior Civil Judge returned the

suit on 18.04.2011 to present before appropriate Court.

However, without representing the same, plaintiffs filed suit

O.S.No.13 of 2012. Hence, prayed the Court to dismiss the suit.

4. Defendants also filed counter claim seeking cancellation

of registered sale deed, dated 02.02.2007 and subsequent

rectification deed, dated 16.06.2008 by paying Court Fee under

Section 37 of the APCF & SV Act. Counter claim was filed by

way of amendment by filing I.A.No.697 of 2017 and after filing of

the counter claim, plaintiff No.1 filed written statement.

5. Necessary issues were framed and trial in the suit is

completed. At that point of time, defendants filed I.A.No.689 of

2021 under Order VI Rule 17 of CPC to amend the written

statement to declare title of defendant Nos.1 to 4 over Ac.4-00

cents of land in survey No.28/1A and consequently annul the

registered sale deed, dated 02.02.2007 and rectification deed,

dated 16.06.2008 as not binding on defendant Nos.1 to 4 by

deleting the prayer to cancel registered sale deed, dated

02.02.2007 and subsequent rectification deed, dated

16.06.2008.

6. In the affidavit filed in support of the petition, it was

contended inter alia that in the counter claim, instead of asking

for declaration of title over the suit schedule property, by over

sight, they sought for cancellation of documents, that both oral

and documentary evidence, already adduced is on record; that

while Advocate was preparing for arguments, it was noticed and

hence, application is filed.

7. Respondents/plaintiffs filed counter opposing the

application. It was mainly contended that the proposed

amendment changes the nature and character of the suit; that

amendment is barred by limitation; that cancellation of

documents is not consequential to the relief of declaration and

both are independent reliefs; that parties submitted oral and

written arguments long back and in fact written arguments were

also submitted, however in view of transfer of Presiding Officer,

the suit was again listed for arguments; that

respondents/plaintiffs again filed written arguments along with

judgments; that in the arguments, it was pleaded that counter

claim is barred by limitation and also the party to the

documents can only ask for cancellation.

8. By order, dated 23.06.2022, the trial Court dismissed the

application on the ground that proposed amendment changes

the nature and character of the counter claim and the

defendants failed to prove due diligence. Aggrieved by the said

order, the present revision is filed.

9. Heard Sri V.R. Reddy Kovvuri, learned counsel for the

petitioners and Sri G. Ramesh Babu, learned counsel for the

respondents.

10. Learned counsel for the petitioners would contend that

defendants denied title of the plaintiffs over the suit schedule

property from the beginning and defendants are asserting title

to themselves over the suit schedule property by virtue of

registered sale deed. They are in possession of the property by

virtue of registered sale deeds and their sale deeds are prior to

sale deeds of the plaintiffs. He also would contend that instead

of asking for declaration of title, the relief for cancellation was

sought by way of counter claim and having realized the mistake,

the application is filed praying the Court to amend the counter

claim. Entire evidence and documents are already on record and

no other evidence is required, except payment of Court fee

pursuant to the amendment. He relied upon Revajeetu

Builders and Developers v. Narayanaswamy & Sons1.

11. Learned counsel for the respondents on the other hand,

would contend that trial in the suit was completed long back.

Plaintiffs and defendants submitted their written arguments

also. Since Presiding Officer was transferred, the suit is again

reopened. Plaintiff again submitted written arguments along

with judgments by raising specific contention that the counter

claim is barred by limitation and the party to the documents

alone is competent for seeking relief of cancelation of document.

He would contend that only to fill up and cover up lacunae

raised by the plaintiffs, the present application came to be filed

by the defendants and thus, prayed to dismiss the revision.

12. In view of the above contentions the point that arises for

consideration is:

"Whether the Court below committed any error in dismissing the interlocutory application filed seeking for amendment of counter claim?"

2009 (10) SCC 84

13. In order to curtail delay in disposing of cases, in 1999,

Legislation altogether deleted Rule 17 of Order VI, but

immediately in view of the uproar in the year, 2002, Rule 17

was restored. However, provisio was added to Order VI Rule 17,

which reads thus:

"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."

14. Courts at any stage of the proceedings may allow either

party to alter or amend the pleadings in such a manner that on

such stand as may be just and necessary for determining the

real question in controversy between the parties.

15. In B.K. Narayana Pillai v. Parameswaran Pillai2, a suit

was filed by A for recovery of possession from B alleging that B

was a licensee. In the written statement B contended that he

was a lessee. After the trial began, he applied for amendment of

the written statement by adding an alternative plea that in case

B is held to be a licensee, the licence was irrevocable. The

2000(1) SCC 712,

amendment was refused. Setting aside the orders refusing

amendment, the Hon'ble Apex Court stated: (SCC p.715 para3):

'3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines loaid down by various High Courts and [the Supreme Court]. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensation with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments ar allowed in the pleadings to avoid uncalled for multiplicity of litigation'.

16. In Revajith Building Developers v. Narayana Swamy

and Sons, the Hon'ble Ape 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."

17. In Usha Balashaheb Swami v. Kiran Appaso Swami3 the

Hon'ble Apex Court considered the amendments to the plaint

and written statement. The Hon'ble Apex Court in the said

judgment came to the conclusion that prayer of amendment of

plaint and prayer of amendment of written statement, stand on

different footings. The general principle of amendment of

pleadings cannot be allowed so as to alter materially or

substitute cause of action or nature of claim applies to

amendments to the plaint. It has no counterpart in the

principles relating to amendment of written statement.

18. A counter claim filed along with written statement is to be

treated as plaint. The suit as noted supra is filed for declaration

and injunction and for alternative relief of recovery of

possession. Defendants filed written statement and counter

2007 (5) SCC 602

claim denying title of the plaintiffs and claimed title onto

themselves by virtue of registered sale deed. By filing counter

claim, defendants sought for cancellation of sale deed and

rectification deed relied upon by the plaintiffs. In fact, in the

written statement, defendants asserted title to the suit schedule

property by virtue of registered sale deed. Third party to the

documents, if aggrieved, has to file a suit for declaration of title

and executants of the documents should file suit for

cancellation of the documents. Having asserted title onto

themselves, defendants ought to have asked the relief of

declaration instead of asking for cancellation of the documents

by way of counter claim since they are not parties to the

documents relied upon by the plaintiffs.

19. A perusal of the material papers filed along with revision

would also indicate that counter claim was added in the written

statement by virtue of amendment in I.A.No.697 of 2017. After

amendment to the written statement and counter claim, the

parties went to trial, and trial was completed. Written

submissions were also filed by the respective parties. As

Presiding Officer was transferred, the suit was reopened for the

purpose of arguments again.

20. The contention of learned counsel for the

petitioners/defendants is that in fact entire evidence was let in

by the parties and no further evidence is required including

marking of documents, even if the proposed amendment of

declaration of title by way of counter claim is made. One of the

factors to be considered while dealing with application for

amendment is that refusing amendment would in fact lead to

multiplicity of litigation and whether the proposed amendment

constitutionally or fundamentally changes nature and character

of the case.

21. The pleadings filed along with the revision petition would

indicate denial of the title by the defendants in the written

statement itself. However, the relief sought for by way of

counter claim is for cancellation of document. The Hon'ble

Apex Court in Suhrid Singh @ Sardool Singh Vs Randhir

Singh and others 4 while considering payment of court fee held

that where the executant of a deed want it to be annulled, he

has to seek cancellation of the deed, whereas non executant

seeks annulment of a deed, he has to seek declaration that the

deed is invalid, non-est or illegal. Even in this case on hand,

(2010) 12 SCC 112

defendants are not the executants of documents relied upon by

the plaintiffs. The proper relief, having been denied title of

plaintiff, should be declaration but not cancellation. Having

realized that the relief sought for is not maintainable, now the

defendants sought for the relief of declaration. Parties to the

suit are not experts in legal profession. Legal practitioner should

guide them basing on the papers placed before him out of his

expertise. Basing on the material written statement was drafted

by legal practitioner denying the title of plaintiff and asserted

title of defendants to the suit schedule property. Natural

corollary, in case of counter claim is declaration but not

cancellation. In the opinion of this court client should not be

suffered for the fault of advocate. Though it was rightly

contended by counsel for respondents about conclusion of trial

and suit is coming up for arguments and in fact filing of written

arguments, to avoid multiplicity of proceedings, the amendment

needs to be allowed.

22. According to learned counsel for the

petitioners/defendants, entire evidence and documents are

already on record and no other evidence is required to be let in.

Even during the course of arguments counsel for the petitioners

made statement across the bar that no further evidence will be

let in even if the amendment is ordered. Considering the above

situation since the entire evidence both oral and documentary is

on record no further evidence is required and suit need not be

reopened for the purpose of letting further evidence, to avoid

multiplicity of suits, this court is inclined to interfere with the

order of court below.

23. In view of the above, to meet ends of justice, this Court in

exercise of revision power under Article 227 of the Constitution

of India, deems it appropriate to interfere with the order of the

trial Court.

24. Since the application seeking amendment was filed at the

fag end of the suit, the plaintiffs should be compensated for the

delay in filing application by the defendants.

25. Accordingly, this Civil Revision Petition is allowed by

setting aside the order, dated 23.06.2022 in I.A.No. 689 of 2021

in O.S.No.13 of 2012 on the file of learned VI Additional District

Judge, Kadapa on the condition of payment of Rs.25,000/- by

the defendants to the plaintiffs in the suit and carry out the

amendment, within a period of two weeks. If the revision

petitioners fail to comply with condition of payment the costs to

the plaintiffs in the suit as indicated supra, the order under

revision restores to file.

It is made clear that except carrying out the amendment,

the defendants shall not be allowed to lead any further evidence

either oral or documentary since, it was asserted by learned

counsel for the petitioners/defendants that no evidence be

required to be let in further.

Since the written arguments are already on record, the

trial Court shall dispose of the suit as expeditiously as possible

within a period of four weeks after carrying out the necessary

amendment by the defendants.

As a sequel, all the pending miscellaneous applications

shall stand closed.

__________________________ SUBBA REDDY SATTI, J

Date : 15.11.2022

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HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.1415 of 2022

Date : 15.11.2022

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