Vuggirala Ravi Teja vs Vuggirala Udaya Chandra Rao
2023 Latest Caselaw 108 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CIVIL REVISION PETITION No.3671 of 2019

ORDER:

The plaintiff in the suit filed this civil revision petition

under Article 227 of the Constitution of India questioning the

correctness of order dated 24.08.2019 of learned Family Court-

cum-XII Additional District Court, Guntur in I.A.No.755 of 2019

in O.S.No.39 of 2011.

In this revision, the point raised and argued is that the

learned trial Court failed to exercise jurisdiction vested in it in

the manner that is expected to be exercised by law and failed to

consider the application appropriately and went beyond the

legal requirement and considered about merits of the matter

and therefore, the order shall be upset.

Learned counsel for petitioner and learned counsel for

respondent Nos.12, 16 and 19 made their submissions and

other respondents did not appear and contest.

Therefore, the question that falls for consideration is:

"Whether the learned trial Court committed error in

exercising its jurisdiction and passed an infirm order requiring

interference?

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The controversy is about refusal of the trial Court in

permitting the plaintiff to have the plaint amended in terms of

Order VI Rule 17 C.P.C. Having lost the prayer, the plaintiff has

come up with this revision.

O.S.No.39 of 2011 was filed by the sole plaintiff/revision

petitioner as against 18 defendants. The suit is for partition of

properties. Schedule is appended to the plaint showing

immovable properties in item Nos.1 to 5. The prayers in the

suit are:

(a) for partition of the plaint schedule properties into 5 equal shares and to allot one such share to the plaintiff and to deliver the same to the plaintiff.

(b) to ascertain mesne profits on the plaint schedule properties on separate application.

(c) to award costs.

(d) to pass such other orders as are just and proper in the circumstances of the case.

The averments in the plaint are that Smt. Venkayamma

and defendant No.1 are wife and husband and they begot

children, who are daughters and sons. The plaintiff and

defendant No.3 are the sons. Defendant No.2 and defendant

No.4 are the daughters. It is stated that defendant No.1

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inherited properties and he has been the kartha of the joint

family and has been managing them. He was diverting the joint

family funds into his real estate business and that was done

without the consent or knowledge of remaining members of the

joint family. Defendant No.1 in collusion with his friends and

relations was diverting the funds of the joint family and utilizing

the funds for his own personal needs and failed to take

appropriate care of the other members of the joint family. That

all the plaint schedule properties have been in joint possession

and enjoyment of the plaintiff and defendant Nos.1 to 4. The

plaintiff attained majority during August, 2010 and came to

know that defendant No.1 executed certain nominal and sham

documents concerning joint family properties and they are

prejudicial to the interest of the plaintiff and other members of

the joint family. Stating that those documents executed by

defendant No.1 do not bind the plaintiff and other members of

the joint family, the suit is laid seeking for partition of the plaint

schedule properties into five parts and grant one share to the

plaintiff.

The above referred contents of the plaint would at once

indicate that while the joint family consists of plaintiff and

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defendant Nos.1 to 4 alone, it is totally devoid of any averment

as to who defendant Nos.5 to 18 are. While the plaint speaks

about defendant No.1 executing sham and nominal documents

alienating the plaint schedule properties no particular date,

time or the nature of the document is indicated. Why defendant

Nos.5 to 18 are added cannot be seen from the plaint at all. It

seems that during pendency of the suit the plaintiff did not

choose to prosecute the suit as against defendant Nos.8 and 9

and got the suit dismissed as not pressed as against those two

of them.

Trial in the suit commenced and it was coming up for the

evidence on behalf of defendant No.5. The plaintiff had moved

I.A.No.755 of 2019 in O.S.No.39 of 2011 under Order VI Rule 17

C.P.C. read with Section 151 C.P.C. with a prayer to amend the

plaint. In the said application is supported by an affidavit and

it also contains the consequential amendments that need be

carried out in the event the application for amendment of plaint

is allowed. When that application was taken up by the learned

trial Court for enquiry, it seems that none of the respondents

filed any counter. Thus, there was no opposition as against the

petition for amendment. The learned trial Court heard the

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learned counsel on both sides and passed the impugned order

whereunder it refused to permit the amendments in the plaint

and dismissed the petition. It is that order which is challenged

in this revision.

A reading of the application for amendment in I.A.No.755

of 2019 and the impugned order would indicate that the

proposed amendments could be appreciated under four different

heads.

The plaint schedule for item No.2 and item No.3 there is a

prayer made in para No.5 of I.A.No.755 of 2019. There it is

mentioned that out of oversight the description of these two

items were wrongly made in the plaint and they require

correction. It is stated that in the plaint item No.2 is described

as the property in an extent of Ac.1.46 cents. That is incorrect

and the accurate extent of the land is Ac.1.58 cents. For item

No.3 of the plaint schedule, it is mentioned that in the plaint

schedule it is mentioned as D.No.221/B in an extent of Ac.0.87

cents. That is incorrect and the correct description is

D.No.213/A in an extent of Ac.0.82 cents. The reason assigned

in the petition is that it was out of oversight these mistakes

crept in and they may be permitted to be corrected. As stated

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earlier on this aspect of the matter no contest on facts came up

before the learned trial Court. This part of the proposed

amendment was declined by the learned trial Court on the

ground that the petitioner/plaintiff since claimed to have been

in joint possession of these properties, there was no possibility

to commit a mistake on his part and therefore, his prayer for

amendment was refused.

At para No.6 of the petition in I.A.No.755 of 2019, the

petitioner mentioned that the joint family also owned ancestral

house properties and by oversight and mistake they were not

included in the plaint schedule and they may now be added as

item Nos.6 and 7 in the plaint schedule and gave description of

the properties of the proposed item Nos.6 and 7. It seems that

in the written statement filed by defendant No.3 such omission

was pointed out. This part of the prayer was also refused by the

learned trial Court on the ground that there is no averment that

these two proposed items are also in joint possession and

enjoyment of the joint family members.

The suit is filed for partitioning the joint family properties.

Law expects all the properties of the joint family shall be

brought at once for adjudication so that the controversy among

Dr. VRKS, J C.R.P.No.3671 of 2019

members of the joint family could be resolved at once.

Partitioning only some of the properties is not advised in many

cases. A suit for partition also indicates the desire to have the

properties belonging to the joint family partitioned. If there is

mis-description concerning the properties it would not help

anyone and on the other hand, it would lead to complex

circumstances effecting the rights of others, who are not parties

to the suit also. As and when parties realized that the

immovable properties are incorrectly described either with

reference to their existence or with reference to their door

number, the same has to be corrected in the pleadings. The

real controversy between parties is whether the properties

claimed by the plaintiff are joint family properties or not and

whether they were available for partition or not. Order VI Rule

17 C.P.C. permits amendment of pleadings at any stage of the

proceedings. However, the power is hedged saying that the

amendments are expected to be completed before

commencement of trial. Amendments subsequent to

commencement of trial could also be granted if the Court is of

the opinion that despite due diligence the party could not raise

such amendments earlier to the commencement of trial. On

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these basic principles both sides did not hold any disagreement.

Viewed from that perspective the corrections in the description

of item Nos.2 and 3 of the plaint schedule and the addition of

item Nos.6 and 7 to the plaint schedule would certainly help the

trial Court in determining the real questions in controversy in a

very appropriate manner. As long as the proposed item Nos.6

and 7 are claimed to be properties of the joint family and as long

as the existing plaint items indicate an assertion of the plaintiff

that the members of the joint family have been in possession

and enjoyment of the joint family properties, the trial Court

ought to have allowed these parts of the proposed amendments.

Failure on its part in exercising its jurisdiction is very much

clear and that led to an infirm order to the extent indicated

above. Therefore, that part of the order of the trial Court is set

aside. The revision petitioner/plaintiff must be permitted to

carry out corrections in item Nos.2 and 3 of the plaint schedule

and bring on record item Nos.6 and 7 in the plaint schedule.

This revision petitioner in I.A.No.755 of 2019 at para No.3

mentioned that Smt. U.Pitchamma is his paternal grandmother

and she had executed a Will dated 15.02.2007 and under that

Will she bequeathed remaining plots in D.Nos.221/A and 221/B

Dr. VRKS, J C.R.P.No.3671 of 2019

and joint share in item Nos.1, 3 and 5 to the petitioner and his

brother. The revision petitioner wants this assertion to be

brought on record by amending his plaint. Learned trial Court

refused this prayer stating that on 31.01.2017 this petitioner

was subjected to cross-examination wherein he disclosed about

his full knowledge of the alleged Will. By the time the suit was

filed in the year 2011 itself the petitioner knew about this Will.

Since the petitioner failed to explain why he did not incorporate

necessary pleadings in the original plaint and why he did not

choose to bring in any particular item by virtue of the Will till

the year 2019, it thought that on the principle of absence of

diligence, the prayer should be refused. Though this aspect of

the matter is challenged in this revision, the learned counsel for

revision petitioner failed to show how this proposed amendment

is going to help the trial Court in deciding the real controversy

between the parties. Be it noted the suit is not filed for

anything that was allegedly received by the petitioner under

bequest of his grandmother. The entire plaint indicates the

male lenial discendancy and the concept of the joint family and

it has not mentioned any other properties. Therefore, if the

petitioner gained any other property through the Will, that could

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not be the subject matter of the suit. Besides that the petitioner

had full knowledge of a Will in his favour in the year 2007 itself

and when he filed the suit in the year 2011, he ought to have

mentioned it and at least just before the commencement of trial

or at least soon after commencement of trial. He did nothing.

Against his own sworn evidence the petitioner states in his

petition that he came to know about the Will very recently. That

is a vague statement since he did not even choose to mention

the day or at least the period as to when he came to know about

this Will. At any rate it is rightly pointed out by the learned trial

Court that knowledge of this Will was spoken out by this very

person on 31.01.2017 and even thereafter he did not take steps

to have the plaint amended. Thus, on the test of absence of due

diligence when the trial Court refused to grant permission to

amend the plaint this Court finds no perversity in the order of

the trial Court. Added to what the trial Court said it may be

recorded that the revision petitioner completely failed to address

the point as to how the bequest through a Will is a matter that

is relevant for consideration at the trial concerning division of

joint family properties. Therefore, that part of the order of the

trial Court is confirmed.

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Para No.4 of the petition in I.A.No.755 of 2019 narrates

about various conveyances said to have been executed by

defendant No.1 in the years 1992, 1993, 1999, 2002 and 2003

in favour of defendant Nos.5, 6, 10, 12, 15 and 16 concerning

certain parts of item No.4 of the suit schedule. He mentions

that only recently he came to know about these alienations.

Adverting to this aspect of the matter the learned trial Court

mentioned that this petitioner claimed in the plaint that all the

joint family properties have been in joint possession and

enjoyment of the plaintiff and defendant Nos.1 to 4 and paid

fixed court fee under Section 34(1) of the A.P. Court Fees and

Suits Valuation Act and purposefully omitted to make any

averment in the original plaint as to why defendant Nos.5 to 18

were added as parties and purposefully waited till the fag end of

the trial and now to stall the proceedings has come up with this

application. Thus, it was the opinion of the trial Court that

there was ouster and the petitioner concealed it. Trial Court

also refused to grant the amendment on the point of absence of

due diligence. It is this aspect of the matter that is challenged

in this revision. It is for the revision petitioner to convince this

Court as to how in the above referred facts and circumstances it

Dr. VRKS, J C.R.P.No.3671 of 2019

should be considered that the trial Court failed to exercise its

jurisdiction properly. Except stating that no prejudice would be

caused to the opposite party nothing that is relevant under law

is argued.

Learned counsel for revision petitioner cited Abdul

Rehman v. Mohd. Ruldu1. At para No.10 of the said judgment

their Lordships have held that if an application for amendment

is made after the commencement of the trial, the same could be

allowed only if the Court is able to arrive at a conclusion that in

spite of due diligence the party could not have raised the matter

before the commencement of trial. At para No.13 of the

judgment their Lordships held that the proposed amendment in

that case was concerning the additional relief of cancellation of

sale deeds and since that prayer was not barred by

time/limitation by the time the amendment was proposed their

Lordships were pleased to grant the relief. Learned counsel for

petitioner also cited Gurbakhsh Singh v. Buta Singh2. That

was a case where the amendments were necessitated because

the particular record of the suit could not be traced by the

(2012) 11 SCC 341

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Courts and that hindered the party from taking appropriate

pleadings at an appropriate time (para No.5). It was in these

factual circumstances, their Lordships were pleased to allow the

application.

As against that, learned counsel for respondent Nos.12,

16 and 19 cited Bhulakshmi v. S.S.Valli (C.R.P.No.450 of

2019), wherein this Court at para No.5 considered whether an

excuse in the petition that it was out of oversight the proposed

pleadings were not made is a sufficient justification to allow the

amendment. This Court stated that, that was hardly any

reason and did not allow the prayed amendment. At para No.9

this Court on relying the precedent of the Hon'ble Apex Court

stated that unless the proposed amendment is imperative for

proper and effective adjudication, the amendment cannot be

allowed.

Having considered the ratio in the above judgments and

on considering the facts on record and the failure of the

petitioner in making out any argument as to how the approach

of the trial Court is erroneous, this Court considers that in the

(2018) 6 SCC 567

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given facts and circumstances the learned trial Court properly

exercised its jurisdiction and there is nothing to interfere to the

extent of this above referred proposed amendment.

From the discussion made above, it is clear that out of

four proposed amendments two of them could be admitted as

indicted in the order. The rest of the order of the trial Court

shall be confirmed. Point is answered accordingly.

In the result, this Civil Revision Petition is allowed in part.

The revision petitioner/plaintiff is permitted to carry out

corrections in item Nos.2 and 3 of the plaint schedule and bring

on record item Nos.6 and 7 in the plaint schedule. There shall

be no order as to costs.

At the time of pronouncing the order, the learned counsel

for respondents submitted that O.S.No.39 of 2011 from which

this revision came up was disposed of by the learned trial Court

by a judgment dated 01.11.2022 and dismissed the suit of the

plaintiff/revision petitioner and therefore this revision became

infructuous. Photostat copy of that judgment of the trial Court

is filed and the same is placed in the record.

Dr. VRKS, J C.R.P.No.3671 of 2019

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 05.01.2023 Ivd

Dr. VRKS, J C.R.P.No.3671 of 2019

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.3671 of 2019

Date: 05.01.2023

Ivd