Nandana Satyanarayana And 4 ... vs Seelam Satyavathamma
2022 Latest Caselaw 7284 AP

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


              Civil Revision Petition No.848 of 2018

ORDER:

This civil revision petition, under Article 227 of the

Constitution of India, by the petitioners/respondents is directed

against the orders dated 06.09.2017, in I.A.No.110 of 2015 in

A.S.No.13 of 2015 on the file of the Court of Senior Civil Judge,

Rajam, filed under Section 107(2) & Order VI Rule 17 CPC and

under Rule 28 of Civil Rules of Practice.

2. Heard Sri K. Sai Ram Murthy, learned counsel appearing for

the revision petitioners/respondents and Sri Taddi Nageswara Rao,

learned counsel for the respondent/appellant.

3. The case of the petitioner/appellant in the affidavit filed in

support of the request for amendment of the plaint, in brief, is this:

(a) Being aggrieved by the judgment, dated 16.09.2015 passed

in O.S.No.49 of 2007, the petitioner/appellant preferred A.S.No.13

of 2015. The suit was filed for permanent injunction restraining the

defendants from ever interfering with the peaceful possession and

enjoyment over the suit schedule property marked 'EFGH'. The trial

Court dismissed the suit. The trial Court, in its judgment, dated

16.09.2015, observed that 'when a cloud is cast over the title of the

BSB, J C.R.P.No.848 of 2018 plaintiff, the suit filed by the plaintiff for mere injunction is not

maintainable and proper course for the plaintiff is to file a

comprehensive suit for declaration and injunction. In the said

circumstances, he was advised to seek amendment of plaint for

declaration of title and consequential reliefs. The petitioner could

not seek amendment before the trial Court. The suit was dismissed

on 16.09.2015. The appeal was filed on 13.10.2015. In the

appeal, I.A.No.355 of 2015 was filed and the court below granted

status quo on 13.10.2015 in respect of EFGH property. But the

respondents highhandedly and illegally trespassed into the EFGH

property by violating the orders of status quo and unauthorizedly

raised three feet walls with bricks around EFGH property. Hence, it

has become necessary seek amendment of the plaint.

(b) The amendment sought for by the petitioner/appellant reads

as follows:

At the end of Para-III to add -- "the plaintiff also seeking declaration that she is the absolute owner of the plaint schedule EFGH property and consequential relief of recovery of possession and after removal of structures".

In the valuation para to amend- "market value of the suit property EFGH as per Basic Value Register maintained by the Sub Registrar Office is at Rs.3,71,925/- as the suit filed for declaration and possession, Court fee is payable on 3/4th market value under Section 24(a) which comes to Rs.2,78,945/- A COURT OF Rs.5,226/- is already paid";

BSB, J C.R.P.No.848 of 2018 to amend cause of action para IV at line 6 as - "and the defendants illegally and high handed trespassed and constructed brick wall on 13.10.2015";

to amend plaint para -VI by adding prayer (al) before as follows:

"for declaration to declare that the plaintiff is having right, title, and interest over the plaint schedule EFGH property and for consequential relief of recovery of possession of the suit schedule EFGH property in the plaint plan after removal of the structures thereon and if the defendants failed to remove the same the plaintiff may be permitted to remove the same with her own cost and recover the same from the defendants."

4. The 1st respondent filed counter and the same was adopted by

the respondents 2 to 5.

The case of the 1st defendant in the counter, in brief, is that

he does not know that the petitioner filed I.A.No.355 of 2015 and

obtained an order of status quo. These respondents purchased the

slabbed house along with the vacant site situated on the south of

CPS road from M.Kalavathi and thereafter, he also purchased

another slabbed house from Kalavathi along with vacant site with

specific measurements. The husband of the petitioner requested the

respondent to sell away the schedule property and she initially filed

O.S.No.8 of 2007 on the file of Vacation Judge, later it was

transferred to Junior Civil Judge Court, Palakonda, and renumbered

as O.S.No.49 of 2007. At the time of filing the written statement,

this respondent has denied the right of this petitioner over EFGH

BSB, J C.R.P.No.848 of 2018 and suit is not maintainable without seeking relief of declaration.

There is no order of injunction passed in favour of the

petitioner/plaintiff either before Vacation Judge or Junior Civil

Judge, Palakonda. After full-fledged trial, the suit inO.S.No.49 of

2007 was dismissed on 16.09.2015. The present appeal is filed

seeking amendment of her own pleadings after the judgment, to

overcome the observations made by the trial Court. If the

petitioner/appellant wants to establish her right, title, possession

and enjoyment over the suit schedule property, she has to file a

fresh suit. The relief (petition, sic) is barred by limitation and is not

maintainable. There are no bona fides in the petition. Hence, the

petition is liable to be dismissed.

5. After hearing both parties, the trial Court allowed the petition

and permitted the petitioner to amend the plaint as prayed for

observing that the said amendment will resolve the disputes

between the parties in toto and avoid further litigation between the

parties.

6. Hence, the revision petitioners/respondents preferred this

revision. It is mainly urged in the grounds of revision that originally

the suit filed by the plaintiff is for mere injunction and therefore,

the present application seeking amendment of the plaint is not

maintainable, that the present application seeking amendment was

BSB, J C.R.P.No.848 of 2018 filed to overcome the observations made by the trial Court while

dismissing the suit, that no due diligence was shown by the

respondent herein in seeking amendment of the plaint, that the

present prayer for amendment would change the nature of the suit

which cannot be permitted, that the prayer for amendment cannot

be allowed at the appellate stage and the order impugned is

unsustainable.

7. It is mainly argued by the revision petitioners that in spite of

taking a plea in the written statement and denying the title and

specifically averring that mere suit for perpetual injunction is not

maintainable without seeking the relief of declaration of title, no

step was taken to get the suit amended for seeking the relief of

declaration of title and it is only after the trial Court dismissed the

suit on the said ground, the present petition was filed and therefore,

the relief of declaration is barred by limitation and also that it will

change the nature of the suit by raising a new cause of action. It is

also contended that since it was specifically denied in the written

statement that 'EFGH' site does not belong to the petitioner, the suit

for mandatory injunction is also not maintainable.

8. On the other hand, it is argued by the respondents that

events subsequent to passing of the judgment by the trial Court

lead to filing of the petition seeking amendment to include two

BSB, J C.R.P.No.848 of 2018 reliefs. They are declaration of title and recovery of possession.

Therefore, the lower appellate Court has rightly allowed the petition

for amendment of the plaint.

9. The petition for amendment was filed on the ground that after

dismissal of the suit, in spite of there being an order granting status

quo in respect of EFGH property in I.A.No.355 of 2015 till receipt of

certified copies to enable filing of the appeal, the defendants

highhandedly and illegally trespassed into EFGH property by

violating the orders and unauthorizedly raised 3 feet walls with

structures around EFGH property. Therefore, it is a subsequent

event which is the foundation for seeking amendment. When the

suit was filed for permanent injunction, according to the plaintiff,

she was in possession of the said property having title over the

same. But the defendants denied the title and claimed their

possession. In spite of a specific plea that mere suit for injunction

is not maintainable, no step was taken to seek such relief. In view

of denial of title in the written statement itself, mere raising of wall

would not give raise to a fresh cause of action for seeking the relief

of declaration of title. At the most, it may give raise to cause of

action for seeking mandatory injunction for removal of the wall or

the relief of recovery of possession by removing the wall.

Therefore, the bar of limitation cannot be ignored at all. When a

BSB, J C.R.P.No.848 of 2018 party's right to seek any relief is barred by law of limitation,

however best case one may plead and prove, it cannot stand. As

such, allowing the amendment to incorporate the relief of

declaration of title at this juncture would amount to depriving the

defendants of their right to oppose the suit on the ground of law of

limitation. This aspect has not been answered by the lower

appellate Court while allowing the petition, in spite of a specific

stand taken by in the counter. The impugned order is based merely

on the observations that the relief of amendment is based on the

events developed subsequent to passing of the judgment in the

suit. If the relief of declaration of title is not permitted, the fate of

the relief of permanent injunction is to be independently judged.

When it is the case of the plaintiff that the property is no longer in

possession of the plaintiff, it is to be dealt with in accordance with

law. By allowing the proposed amendment in this case at this

juncture would amount to espousing a new case, because pleadings

are to be amended, again additional written statement is to be filed,

new issues need to be framed and additional evidence is to be lead

by both parties. As such, it would amount to permitting trial of a

new case which is already barred by law of limitation. As such, the

proposed amendment cannot be allowed and the impugned order is

liable to be set aside.

BSB, J C.R.P.No.848 of 2018

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

aside the orders, dated 06.09.2017, of the Senior Civil Judge,

Rajam, in I.A.No.110 of 2015 in A.S.No.13 of 2015 and dismissing

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 22nd September, 2022 RAR