Veerla Dasaradha Ramayya Died 5 ... vs Veerla Venkateswara Rao 3 Others
2022 Latest Caselaw 7142 AP

                                                                  BSS,J
                                                  C.R.P.No.864 of 2015

                                  1

             HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                        C.R.P.No.864 of 2015
ORDER:

This Civil Revision Petition is filed by the

petitioners/plaintiffs under Article 227 of Constitution of India

against the orders dated 11.02.2015 passed by the learned

Principal Junior Civil Judge, Avanigadda, in I.A.No.364 of 2013 in

O.S.No.184 of 2001 wherein and whereby the learned trial Judge

dismissed the petition filed by the plaintiffs under Order VI Rule 17

CPC read with Section 151 of Civil Procedure Code (in short „CPC‟)

seeking permission to amend the plaint.

2. The case of the petitioners/plaintiffs before trial Court in

brief is that they filed suit for permanent injunction against R1,

R2/D1, D2 and during pendency of the suit 2nd petitioner/2nd

plaintiff died. They submit that 1st plaintiff and D3, D4 are the

legal heirs of their mother, but D3, D4 not cooperating with 1st

plaintiff, due to that they have been added as defendants. It is

alleged that R1, R2/D1, D2 tried to interfere with the possession of

plaintiffs in plaint schedule property and also thatched hut, due to

that, at first instance suit is filed seeking injunction simplicitor.

BSS,J C.R.P.No.864 of 2015

They submit that R1, R2 have contended that there is a passage

from their house site to the vacant site situated to the extreme

north of the house site of plaintiffs and D1. In the suit, trial has

been commenced. R1/D1 filed petition for appointment of an

advocate commissioner to note down the physical features of suit

locality including the passage as alleged by them in their written

statement, which was allowed. Then advocate commissioner

visited suit locality on 15.12.2012 and filed report on 28.01.2013.

They further alleged that R1/D1 occupied the site in his front yard

i.e. on the extreme south of plaint schedule property to an extent

of 30 feet width from west to east and 33 feet with length from

South to North, which is equivalent to 110 sq. yards of site shown

in the advocate commissioner‟s plan highhandedly and illegally in

the 2nd week of December 2012, which is also shown in

commissioner‟s plan as „EFGH‟. They submit that the said „EFGH‟

site shown as plaint „B‟ schedule, which is part of plaint „A‟

schedule and as R1 during pendency of the suit in the 2nd week of

December 2012 trespassed into the site, 1st plaintiff intended to

seek relief of declaration and recovery of possession and proposed

amendment, which reads as under:

BSS,J C.R.P.No.864 of 2015

"Proposed Amendment: Para No.7(A) 1st plaintiff submits that he prays to declare that the 1 st plaintiff and defendants 3 and 4 are absolute owners of plaint "B" schedule property more shown with green colour as "E F G H" in the petition/plaint plan annexed with this petition shown in green colour with a width of 30 feet and length of 33 feet, totaling 110 yards more shown as plaint "B" schedule property, i.e., part of plaint "A" schedule property and to order costs and to order eviction of defendants 1 & 2 from the plaint schedule property with in a stipulated period or else by due process of law and to induct the 1st plaintiff & defendants in possession of said property and costs of the suit.

To add plaint "B" schedule property To add Para No.9(A) To declare that the 1st plaintiff and defendants 3 and 4 are the absolute owners of the plaint "B" scheduled property i.e., part of the plaint "A" schedule more shown in petition/plaint plan as E F G H in green colour with plaint plan which is an extent of 30 feet width and 33 feet length which comes to 110 sq. yards years and for eviction by due process of law. Plaintiffs value it as Rs.--- is herewith paid U/S 24(a) of APCF 7 SV Act, 1956.

To add 11(a)(a) To Declare that the 1st plaintiff and defendants 3 & 4 are the absolute owners of plaint "B" schedule property more shown with green colour in petition/plaint plan annexed herewith shown as "EFGH" in plaint plan and evict the defendants 1 & 2 from the plaint B schedule property i.e., part of plaint "A" schedule i.e. EFGH site and to induct the 1st plaintiff and defendants 3 & 4 in possession of the same or else to evict by due process of law and to permit to collect costs from the defendants 1 & 2 in the interest of justice.

BSS,J C.R.P.No.864 of 2015

To insert In schedule portion of plaint schedule property To add plaint "B" schedule property as shown here under. After plaint "A" schedule plaint B schedule property is situated in Chilakalapudi village of Ghantasala Mandal.

S.No. R.S.No. Extent Boundaries

1. 16 Extent of 30 feet width East: Veerla Anjaneyulu 33 feet length totaling and others site Totalling 110 sq. yards South: Panchayat Road More shown in petition/ West: site of defendants Plaint plan with green 1 and 2 Colour as EFGH site as North: site of plaintiffs As part of plaint "A"

Schedule property"

3. For which, respondents 1 and 2/D1, D2 have filed counter

before trial Court denying the averments in the affidavit of the 1 st

petitioner/1st plaintiff. Their main contention is that proposed

amendment materially changes the nature and scope of the suit

and suit was originally filed on a particular cause of action in

respect of plaint schedule property, but the proposed amendment

is basing on different cause of action, which is not permissible

under law and proposed amendment is also barred by limitation.

4. The learned trial Judge after hearing both sides, dismissed

the petition filed by the petitioners/plaintiffs seeking amendment

of the plaint on the ground that petitioners have sought for

amendment of the plaint after commencement of the trial and BSS,J C.R.P.No.864 of 2015

after advocate commissioner filed his report, due to that, the

petitioners cannot be permitted to seek amendment of plaint.

5. Aggrieved by the orders passed by the learned trial Judge,

petitioners have filed the present revision petition stating that

orders passed by learned trial Judge are contrary to law, weight of

evidence and probabilities of the case. They submit that trial

Court failed to appreciate that amendment of the plaint can be

sought even after commencement of the trial and before passing

final decree.

They pray to allow the revision petition.

6. None appeared for R1, R2/ D1, D2 though served with notice

in the present revision petition.

7. I have heard learned counsel for revision petitioners. It is

the contention of the learned counsel for revision petitioners that

proposed amendment sought by the petitioners/plaintiffs is to

avoid multiplicity of litigation to bring it to the notice of Court

with regard to incident occurred after filing of the suit, which

wrongly refused by the learned trial Judge.

He prays to allow the revision petition.

8. Now, the issue that emerges for consideration by this Court

is: "Whether the orders under challenge are sustainable, BSS,J C.R.P.No.864 of 2015

tenable and whether the same warrants any interference of

this Court under Article 227 of Constitution of India?"

9. POINT: Before going to the merits of the case, it would be

beneficial to quote Order VI Rule 17 CPC, which reads as under:

"17. AMENDMENT OF PLEADINGS.

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

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."

10. In Life Insurance Corporation of India - appellant

Vs.Sanjeev Builders Private Limited & Another - Respondents

(judgment in Civil Appeal No.5909 of 2022 dated 01.09.2022 of

Hon‟ble Supreme Court of India), wherein it is held at para - 70,

which reads as under:

"70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC 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.

BSS,J C.R.P.No.864 of 2015

The plea of amendment being barred under Order II Rule 2 CPC 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 CPC.

(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, BSS,J C.R.P.No.864 of 2015

(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 BSS,J C.R.P.No.864 of 2015

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 & Ors., 2022 SCC OnLine Del 1897)"

11. In Gurbakhsh Singh and others Vs. Buta Singh and

another 1 Hon‟ble Apex Court while considering the civil appeal

filed against the orders of dismissal of amendment of pleadings

petition held that when the nature of amendment neither changes

the character and nature of the suit nor does it introduces fresh

ground, which cannot be rejected.

12. In the present case though plaintiffs 1 and 2, who are son

and mother have filed suit at the first instance against D1, D2 (R1,

R2) seeking permanent injunction, it is alleged that during

2018(3) ALT 55 (SC) BSS,J C.R.P.No.864 of 2015

pendency of the suit in the 2nd week of December 2012, R1/D1

trespassed into the site which is shown as „EFGH‟ as per

commissioner‟s plan, due to that now revision petitioners/plaintiffs

are intended to seek amendment of plaint by seeking relief of

declaration of title and for recovery of possession, which was

refused by trial Court. The only contention raised by R1, R2/D1,

D2 in their counter is that proposed amendment changes the

nature of the suit and it is also not based on different cause of

action and it is barred by limitation. When petitioners/plaintiffs

are alleging that during the pendency of the suit R1/D1 trespassed

into the portion of plaint schedule property, due to that they are

seeking relief of declaration and recovery of possession and when

R1, R2 not denying their possession in respect of site shown as

EFGH in the advocate commission‟s report, which is said to be

subsequent event or not or which was available prior to filing of

the suit and merits of amendment cannot be decided in the

petition filed by the petitioners/plaintiffs. In other words, merits

and demerits of proposed amendment cannot be decided in a

petition seeking for amendment of pleadings, if it is necessary to

avoid multiplicity of litigation and to arrive just conclusion in the

main suit. Even the plea of limitation which R1, R2 have raised in BSS,J C.R.P.No.864 of 2015

their counter is a mixed question of law and fact, which can only

be decided at the time of final disposal of the case. When R1,

R2/D1, D2 are not denying their possession of EFGH portion shown

in the advocate commissioner‟s plan, the dismissal of the petition

filed by the petitioners seeking amendment of plaint on the ground

that trial has been commenced is not legally sustainable when

petitioners are specifically pleading that in the 2nd week of

December 2012, R1/D1 trespassed into EFGH portion of site shown

in the advocate commissioner‟s plan. Therefore, orders passed by

learned trial Judge dismissing the petition filed by the petitioners

seeking amendment of the plaint are not sustainable either in law

or on facts, which needs interference of this Court under Article

227 of Constitution of India. The learned trial Judge can decide

the plea of limitation and fact of alleged trespass by respondents

at the time of final disposal of the case and trial Judge is directed

to permit the petitioners/plaintiffs to amend the plaint as per the

procedure laid down under law by collecting necessary Court fees

and thereafter shall permit R1, R2/D1, D2 to file additional written

statement if any and permit both sides to adduce further evidence

if any in pursuance of the amendment of the plaint. It is needless

to say that any observations made by this Court with regard to the BSS,J C.R.P.No.864 of 2015

merits of the case are limited to the purpose of disposal of present

civil revision petition, which shall not come in the way of the trial

Court independently considering the plea of both sides. As per the

report received from learned Principal District Judge, Krishna at

Machilipatnam, now O.S.No.184 of 2001 on the file of Principal

Junior Civil Judge, Avanigadda, is transferred to Junior Civil Judge

Court, Muvva and renumbered as O.S.No.55 of 2019, which is

posted to 14.10.2022 for further evidence of plaintiffs. Though

after re-registering the plaint it is O.S.No.55 of 2019, the learned

Junior Civil Judge, Muvva shall consider the case as old case as it

was originally filed in the year 2001 and he is directed to dispose of

the case as expeditiously as possible, preferably, within a period of

six (06) months from the date of receiving the orders of this

Court.

13. In the result, the Civil Revision Petition is allowed. No order

as to costs. The orders passed by the learned Principal Junior Civil

Judge, Avanigadda, in the petition filed by the

petitioners/plaintiffs in I.A.No.364 of 2013 in O.S.No.184 of 2001

now O.S.No.55 of 2019 on the file of Junior Civil Judge Court,

Muvva, are hereby set aside. The amendment petition is allowed.

The learned trial Judge is directed to dispose of the case as BSS,J C.R.P.No.864 of 2015

expeditiously as possible, preferably, within a period of six (06)

months from the date of receipt of orders of this Court.

Consequently, miscellaneous petitions pending if any, shall stand

closed.

______________________ BANDARU SYAMSUNDER, J Dt:19.09.2022.

Rns BSS,J C.R.P.No.864 of 2015

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.864 OF 2015

Date: 19.09.2022

Rns