Karreddula Venkata Subba Reddy vs Dasari, Barnabasu
2022 Latest Caselaw 8089 AP

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


              Civil Revision Petition No.702 of 2021
ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, by the unsuccessful plaintiffs is directed

against the orders dated 09.03.2021, of the Principal Junior Civil

Judge, Giddalur, dismissing I.A.No.956 of 2009 in OS.No.83 of 2006

filed under Order VI Rule 17 of the Code of Civil Procedure, 1908

seeking to amend the plaint.

2. Heard Sri Turaga Sai Surya, learned counsel appearing for the

revision petitioners/plaintiffs and Sri Venkateswarlu Chakilam,

learned counsel for respondents/defendant Nos.1, 4 & 6 to 9.

Respondent Nos.2, 3 & 5 died.

3. The case of the plaintiffs, in brief, is as follows:

(a) The plaintiffs filed the suit seeking the relief of permanent

injunction restraining the defendants from interfering with their

peaceful possession and enjoyment over the plaint schedule

property. The defendants filed written statement alleging that they

purchased Ac.0.34 cents orally from the father of plaintiffs 1 to 4.

In fact, the father of the plaintiffs 1 to 4 sold Ac.0.03 cents only to

the defendants, i.e., E F G H marked site where they raised two

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portioned midde and hut. After filing of the suit, at the instance of

the defendants, commissioner was appointed in order to show that

they are in possession and enjoyment of the schedule land. The

defendants temporarily arranged open bathrooms which are marked

G H I J marked Karra Thotlu, M marked Cement tub, KL marked

heaps of Kankara and W X Y Z marked base by the commissioner in

his plan. All the above structures are to be removed from the plaint

schedule site. After the father of the plaintiffs 1 to 4 sold land in

piecemeal, the remaining extent of land is Ac.0.30 cents. However,

the on measurement, the commissioner found Ac.0.43 cents instead

of Ac.0.30 cents. Since the defendants are claiming their right over

plaint schedule property by oral purchase, in order to adjudicate the

suit properly and effectively and to avoid future complications, it is

essential to declare the rights of the plaintiffs over the schedule

property after removing the temporary structures made by the

defendants by granting mandatory injunction. Hence, it has

become necessary to seek amendments in the plaint. By the

proposed amendments, the nature of the suit will not be changed

and further they would not cause any prejudice to the defendants.

(b) The proposed amendments sought for by the plaintiffs are as

follows:

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"1. Add Para 6(A), after para 6 before the same, Hence the Suit.

It is submitted that the Defendants are contending that they purchased the Plaint Schedule Property orally from the father of Plaintiffs 1 to 4 and the husband of 5th defendant i.e., from Karreduula Kota Reddy. In fact, late Karreddula Kota Reddy, sold Ac.0.03 cents of site only. Further, the defendants are contending that they in turn sold Ac.0.06 cents of site to others. Further in order to show that they are in possession and enjoyment of schedule land, the Defendants temporarily arranged commissioner's plan marked GH marked open bath rooms, IJ marked Karra Thotlu, M marked cement Tub, K L marked heaps of Kankara and W X Y Z marked basement in the plaint schedule site. All these are arranged temporarily by the Defendants after filing the suit. They have to be removed from the plaint schedule site. It is further submitted that after selling the land in piecemeal by the father of plaintiffs 1 to 4 to various persons, on physical verification, the plaintiffs mentioned the extent of land as Ac.0.30 cents approximately. But when it was measured it came to Ac.0.43 cents including the site sold to the defendants. After deducting Ac.0.04 cents site it will be Ac.0.40 cents. So, as an abundant caution and to adjudicate the suit property and effectively and to avoid future complications, the plaintiffs are also filing the suit for declaration of right and title of the plaintiffs over plaint schedule property and consequentially for vacant possession of it after removing the above said

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structures which are temporarily made in the plaint schedule site and also for mandatory injunction for removal of the Commissioner's plan marked GH marked open bathrooms, IJ marked Karra Totlu, M marked Cement Tub, KL marked heaps of Kankara and W X Y Z marked basement in the plaint schedule property.

2. Add the following in the beginning of 9th para:

As the plaintiffs are filing the suit for declaration of their right and title over Plaint Schedule property and consequently for vacant possession of it after removing the structures that are made temporarily by the defendants, the value of plaint schedule property of Rs.59,000/- per acre as per the Valuation Certificate issued by the S.R.O, Giddalur, the value of Ac.0.40 cents of plaint schedule is Rs.23,600/- and a Court fee of Rs.1,266/- is paid U/s. 24(a) of APCF & SV Act on the 3/4th value of it i.e., on Rs.17,700/-.

The relief of mandatory injunction is valued at Rs.5,000/- notionally and Court fee of Rs.411/- is paid U/s. 26(C) of APCF & SV Act.

Add the following at the end of 9th para Thus a total of Rs.1,266/- + 411/-+261 = Rs.1,938/-

is paid herewith.

3. Add the following at the end of 10th para + Rs.17,700 + Rs.5,000/- = Rs.25,700/-

(Rupees Twenty Five thousand seven hundred only)

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4. Add the following in the 11 th para before prayer

a) Declaring the right and title of the plaintiffs over the plaint schedule property (i.e., Plaint plan A B C1 C2 C D marked site after excluding E F G H marked Ac.0.03 cents site of defendants) and consequentially for vacant possession of it after removing the temporary structures made by the defendants in it.

b) granting mandatory injunction directing the defendants to remove the temporary structures i.e., Commissioner's Plan marked G H marked open bath rooms, IJ marked Karra Thotlu, M marked Cement Tub, K L marked heaps of Kankara and W X Y Z marked basement and if the defendants fail to remove them it may be done through the process of Court of Law.

Renumber the prayers a to c as C to E.

5. Amend Ac.0.30 cents as Ac.0.40 cents in the plaint schedule.

6. Add the following after 4th line in Cause of action para.

And subsequent to filing the suit when the defendants temporarily arranged structures in the Plaint Schedule property."

4. The case of the 2nd defendant in the counter, in brief, is this:

All the averments in the petition are false and denied. The

plaintiffs filed the petition seeking amendment without disclosing

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the date and time when defendants raised the structures and

trespassed into the schedule site. The plaintiffs failed to plead when

they are out of possession. The 2nd defendant purchased the

schedule land from the father of the plaintiffs 1 to 4. The proposed

amendment is affecting the rights of the defendants which accrued

to them and as such, amendment cannot be sought. The

petitioners are not entitled to amend the pleadings if the incidents

are subsequent to filing of the suit. The petition is liable to be

dismissed.

5. On contest, the trial Court dismissed the petition of the

plaintiffs observing that the attitude of the petitioners in prosecuting

the present application after three years and four months after filing

of the written statement, there are no merits in the petition and the

petitioners are not entitled to seek amendment. Therefore, the

aggrieved plaintiffs are before this Court.

6. The revision petitioners, while reiterating their pleaded case,

further urged in the grounds of revision as follows:

The trial Court failed to appreciate the facts and

circumstances and erred in dismissing the petition seeking

amendment, that the trial Court ought to have allowed the petition

to determine the real controversy in the dispute and to avoid

multiplicity of the proceedings; that the proposed amendments do

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not change or alter the nature of the suit and the cause of action,

that the aspect of limitation is a mixed question of fact and law and

that the petition seeking amendment ought to have been allowed

for doing full and complete justice to the parties.

7. The proposed amendment is declined by the trial Court mainly

on the ground that the petition has been filed after three years and

four months after filing written statement and thus, the relief

proposed to be amended is barred by limitation and also that the

petitioners failed to mention the date of dispossession. Therefore,

learned counsel for the revision petitioners submitted that it is not

so material to mention the exact date of dispossession. In support

of his contentions, he placed reliance on the decision of the High

Court for the State of Telangana in P.Shailaja Kumari v.

Vasantha Malavika and others1, wherein at paragraph Nos.13,

14, 17, 19 & 20, it was held as follows:

"13. It is not in dispute that the trial in the suit has not yet commenced. So, the proviso under Order VI Rule 17 CPC would not come in the way of the Court to consider the application for amendment made by petitioner even if the application for amendment was filed 8 years after filing of the suit. Therefore, the observations of the Court below as to why the petitioner did not make the application for amendment before the Court posted it for trial and

2019 (3) ALD 290

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reference to due diligence made by the Court below, are not proper and correct.

14. Moreover, the purpose of permitting amendment of pleadings is to avoid multiplicity of proceedings. This fundamental principle seems to have been lost sight off by the Court below in considering petitioner's application for amendment.

17. Since a cloud about the title of petitioner has been raised by respondents in the written statement filed by them, petitioner therefore felt it necessary to also seek the relief of declaration of title on the basis of the judgment in LGC No. 45 of 2004, and the petitioner cannot be prevented from seeking by way of amendment the relief of declaration of title also. It is not for the Court to advise the petitioner as to whether she can seek such an amendment or not.

19. Merely because the petitioner is allowed to amend the pleadings and prayers in the suit by seeking reliefs of declaration of title and recovery of possession in the place of perpetual injunction relief she sought earlier, that does not mean that the Court is bound to grand such a relief and the Court would any way consider the evidence adduced by both parties in support of their respective claims before deciding whether the petitioner is entitled to the said reliefs or not.

20. The Court below is also not correct in stating that petitioner ought to mention when she allegedly dispossessed and by whom. After the Limitation Act, 1963

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came into operation, it is not necessary for the plaintiff to state when she is dispossessed unlike under the Limitation Act, 1908; and if the petitioner were to establish title, she would be entitled recovery of possession unless the defendant establishes better title and he is able to prove that he has acquired such title by adverse possession."

8. Learned counsel for the contesting respondents opposed the

petition stating that it is an afterthought to file this petition just to

defeat the contention of the defendants, as plaintiffs failed to get

the interim orders on contest.

9. Though the plaintiffs admitted the sale of the property to an

extent of Ac.0.03 cents, they disputed the sale of Ac.0.30 cents by

their father, Kota Reddy, initially when they filed the suit and now

they plead that it is Ac.0.40 cents and not Ac.0.30 cents. Further,

they contend that the defendants placed some different items in the

suit schedule property at the time of the visit of the Commissioner

and that therefore, there is a serious dispute as to the title and it is

also necessary to recover possession by virtue of subsequent acts of

the defendants. It is also contended that the relief is not barred by

limitation in view of the fact that when the amendment is allowed,

the amendment relates back to the date of filing of the suit and

moreover, since it is only recently the defendants placed items, the

relief is not barred by limitation.

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10. As can be seen from the written statement filed by the

defendants, they claimed title as well as possession of the suit

schedule property and thus raised a serious cloud over the title of

the plaintiffs. The visit of the Commissioner placed on record

certain features of the plaint schedule property. When there is a

dispute of title, though a suit is filed initially for perpetual

injunction, the relief can be changed by way of amendment and it

cannot be said that it would change the nature of the suit, when the

circumstances change after filing of the suit. It is not on record that

the same facts as were in existence on the date of filing of this

petition were also available as on the date of filing of the suit,

except the pleadings in the written statement which are yet to be

put to test in the trial with the evidence to be lead by the parties.

11. Though the suit is very old being instituted in the year 2006,

the petition for amendment has been filed in the year 2009,

however, it was finally decided on 09.03.2021. This long delay in

disposal of the application should not influence the mind of a Court

in deciding the right of a party to get the relief. Since permitting

the petitioners to have an appropriate relief would enable both

parties to get their disputes resolved on merits by giving a quietus

to the dispute between them, it is not proper in this case to disallow

the relief claimed. As such, this Court finds that this is a fit case to

allow the amendment proposed.

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12. In the result, the Civil Revision Petition is allowed setting

aside the order, dated 09.03.2021, passed in I.A.No.956 of 2009 in

OS.No.83 of 2006 and allowing the said petition. There shall be no

order as to costs.

Miscellaneous petitions, if any, pending in this revision shall

stand closed.

_________________ B. S. BHANUMATHI, J 31st October, 2022 RAR