Andhra Pradesh High Court - Amravati

Vempati Rama Kotamma vs Oruganti Jayaprakash Reddy on 28 October, 2022

     HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL REVISION PETITION No.2073 of 2022

ORDER:

Plaintiffs in the suit filed the above revision against the

order dated 20.09.2022 in I.A.No.1205 of 2022 in O.S.No.1 of

2014 on the file of Principal Junior Civil Judge, Macherla.

2. Plaintiff filed suit O.S.No.1 of 2014 against the

defendants for perpetual injunction.

3. In the plaint, it was contended interalia that plaint

schedule property, mud terraced structure bearing Door

No.1-112 was constructed about 50 years back by the mother

of plaintiff by name Telluri Lingamma and after her death,

the schedule property devolved upon the plaintiff; that during

the lifetime of Lingamma, she leased out the plaint schedule

property to the father of defendants on a rent of Rs.160/- per

year; that Lingamma died on 10.11.1994; that in the year

2004, father of defendants vacated the schedule property as

it is in dilapidated condition; that plaintiff has been residing

in Koppunuru village and taking advantage of it, defendants,

who are boundary owners on Northern side of the schedule

property hatched a plan to occupy the schedule property;

that on 26.12.2013 when the plaintiff was at the plaint

schedule property, defendants came there and tried to occupy

the schedule property and the same was resisted; that the

defendants are proclaiming in the village that they are going

to occupy the plaint schedule property and hence, the suit

was filed for the relief stated supra.

4. Defendants filed written statement and are contesting

the suit. Defendants denied title of plaintiff.

5. Pending the suit, plaintiff filed I.A.No.1205 of 2022

under Order VI Rule 17 r/w Section 151 of CPC to permit the

plaintiff to amend the plaint for declaration of title and

possession.

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

contended interalia that Thelluri Kotamma, who is second

wife of Thelluri Bhaskara Reddy, father of petitioner did not

get her share in the schedule property and she illegally

executed sale deed in favour of Iruvanti Satyanarayana and

thus, the sale deed executed by Thelluri Kotamma in favour

of Iruvanti Satyanarayana is invalid document; thus the

contentions of defendants are based upon void document and

are baseless; that under these circumstances, plaintiff

intended to amend the plaint seeking declaration of title.

7. Respondents filed counter and opposed the application.

In the counter, it was contended interalia that petition is filed

belatedly to drag the suit proceedings; that defendants filed

written statement long back and the evidence of plaintiff and

her daughter proved lawful possession and enjoyment of

father and mother of defendants over the schedule property;

that proposed amendment is introduced to fill up lacunas

and the petitioner/plaintiff is not allowed to introduce new

facts; that the affidavit is silent regarding the plaintiff's

dispossession; that the plaintiff was cross examined on

01.04.2019 and further cross examined on 29.04.2019; that

daughter of plaintiff was cross examined as P.W.2 on

10.06.2019; that plaintiff as P.W.1 and her daughter as

P.W.2 pleaded that they are not in possession and enjoyment

of schedule property in their chief examination, however in

the cross examination, P.W.1 admitted that "For the past 30

years, the family of the defendants are residing in the suit

schedule property. It is true by the date of filing of suit, the

mother of defendants constructed a house with two rooms in

the schedule property. It is true the wife of second defendant is

running a fair price shop in the said house. I filed the suit for

recovery of possession from the defendants"; that proposed

amendment is barred by limitation; that on 22.03.2022 the

petitioner/plaintiff was recalled and marked Exs.A-4 to A-7

and she was cross examined; that P.W.2 was also recalled for

further evidence and she was cross examined; that plaintiff

reported no further evidence and the suit was posted for

arguments and the Court heard arguments on either side, at

that point of time, this petition is filed and prayed the Court

to dismiss the petition.

8. Trial Court by order dated 20.09.2022 dismissed the

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

9. Heard Sri G.Elisha, learned counsel for revision

petitioner.

10. Learned counsel for revision petitioner would submit

that the trial Court initially granted injunction and in spite of

injunction, respondents/defendants occupied some portion of

suit schedule property and hence, the plaintiff filed the

application seeking amendment. He would also submit that

the proposed amendment will not cause any prejudice to the

respondents/defendants. Learned counsel relied on the

judgment of the composite High Court of Andhra Pradesh in

A.Krishna Rao Vs. A.Narahari Rao and others1.

11. Suit O.S.No.1 of 2014 was filed for injunction

simplicitor. A perusal of the plaint filed along with revision

would disclose that plaintiff got the property from her mother

and she has been in possession of the property; that property

was leased out to defendants' father and they vacated the

same in the year 2004 as the schedule property is in

dilapidated condition; that since the defendants tried to

trespass into schedule property in December, 2013, suit was

filed. However, defendants by filing written statement while

denying the averments in the plaint, further contended about

their title to the property and, also their possession over the

plaint schedule property.

12. The evidence of plaintiff was closed and in fact, going by

the averments in the counter, arguments were also heard.

2014 (6) ALD 258

Plaintiff was examined as P.W.1 and her daughter was

examined as P.W.2 initially in April, 2019. In March, 2022

they were recalled and further examined. In fact, in the

written statement defendants contended that plaint schedule

property belonged to Bhadra Reddy; that mother of plaintiff

Lingamma and one Kotamma are two wives of Bhadra Reddy

and said Bhadra Reddy died in the year 1945; that in the

year 1949 partition was taken place and in the partition

Kotamma got the schedule property and in the year 1961,

Kotamma sold the schedule property to I.Satyanarayana

under a registered sale deed, who in turn sold the schedule

property to defendants' father in the year 1975 etc., and that

the schedule house is not available on the ground.

13. Thus, the amendment sought for by the plaintiff is post

trial amendment. It is settled law that the Court shall

consider pre-trial amendments liberally. However, post-trial

amendments the Court must exercise its discretion and

should see that whether the amendment is necessary for the

purpose of determining the real controversy between the

parties. If it finds that the parties could not have raised the

issue in spite of due diligence before commencement of trial

and such discretion must be exercised by applying the

judicial mind.

14. In the case on hand, amendment application was filed

at the stage of arguments. The affidavit filed in support of

the petition does not contain any explanation regarding delay.

Written statement was filed long back immediately after filing

of suit. Learned counsel for the petitioner/plaintiff in the

lower court would contend that to avoid multiplicity of

proceedings, amendment is necessary. Whereas, Learned

counsel for revision petitioner would submit that in spite of

injunction, defendants occupied the schedule property and

hence, amendment petition was filed.

15. By way of proposed amendment, plaintiff sought

different parts of the plaint to be amended. Plaintiff's intends

to contend about two wives of Bhadra Reddy, filing of suit for

partition, preliminary decree and no final decree, alienation of

property by Kotamma in favour of I.Satyanarayana. This part

of the amendment was sought to be introduced after entire

evidence is completed and when the suit is coming for

arguments. In fact, in the counter respondents contended

that regarding the admissions made by P.W.1 regarding their

possession over the plaint schedule property for a quite long

time and fair price shop being run in the plaint schedule

property.

16. In Ashutosh Chaturvedi Vs. Prano Devi @ Parani

Devi and Others2, the Hon'ble Apex Court considered T.N.

Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and

Ors3, wherein the Apex Court declined to allow amendment

on the ground of limitation.

17. In Ashutosh Chaturvedi's case, the Apex Court held at

Para-15 thus:

"15. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint."

18. In Life Insurance Corporation of India Vs. Sanjeev

Builders Private Limited and Ors.4, the Hon'ble Apex Court

laid the following guidelines to consider the prayer for

amendment:

AIR 2008 SC 2171

(2004) 3 SCC 392

AIR 2022 SC 4256 = MANU/SC/1093/2022

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 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 v. Gagninder Kr. Gandhi and Ors., MANU/DE/2236/2022)".

19. Thus, in the light of the expression of the Hon'ble Apex

Court, the amendment now sought by the plaintiff/petitioner,

in the opinion of this Court is barred by limitation. In spite

of defence in the written statement, plaintiff proceeded with

trial. The present interlocutory application came to be filed

after the plaintiff and her daughter were recalled and

reexamined and that too when the suit is coming up for

arguments. The proposed amendment causes prejudice to

the respondents.

20. The proposed amendment is liable to be rejected in view

of proviso to Order VI Rule 17 of CPC. The affidavit does not

satisfy the scrutiny of due diligence test. P.Ws.1 and 2 were

examined in the year 2019 at first instance and after

recalling, they were examined in 2022.

21. In J. Samuel and Ors. vs. Gattu Mahesh and Ors.5,

the Hon'ble Apex Court while dealing with an application to

amend the plaint on the ground of typographical error held

thus:

"15. In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code."

22. In Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K.

Sarwagi and Co. Pvt. Ltd. and Ors.6, the Hon'ble Apex Court

held thus:

"Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party;

(2012) 2 SCC 300

(2008) 14 SCC 364

(iii) when allowing amendment application defeats the law of limitation."

23. In Vidyabai and Ors. Vs. Padmalatha and Ors.7, the

Hon'ble Apex Court held thus:

"Proviso to Order VI Rule 17 of CPC, is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties."

24. In Revajeetu Builders and Developers vs.

Narayanaswamy and Sons and Ors.8, 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;

(2009) 2 SCC 409

(2009) 10 SCC 84

(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.

25. As observed supra, in the case on hand, by filing

written statement immediately after filing of the suit,

defendants denied the title and possession of the plaintiff.

Defendants pleaded about their right over the property 30

years prior to filing of the suit. The affidavit filed in support

of the petition does not indicate regarding the date of

plaintiff's dispossession. P.Ws.1 and 2 also admitted about

defendants' possession over the plaint schedule property.

26. 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. 9. The

order of the lower is neither perverse nor amounts to failure