Andhra Pradesh High Court - Amravati

Unknown vs Hazari Lal Kishori Lal And Others" on 16 June, 2023

                                     1


           THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                         C.R.P.No.1036 of 2021

ORDER:

This Revision Petition, under Article 227 of the Constitution

of India, is preferred against the order, dated 22.07.2021, in

I.A.No.22 of 2020 in A.S.No.5 of 2019 on the file of the Court of the

Senior Civil Judge, Atmakur, filed under Order VI, Rule 17 of

C.P.C read with Section 22(1)(a) Provision of Special Relief Act

seeking relief to amend the plaint in O.S.No.130 of 2012 on the file

of Junior Civil Judge, Atmakur as mentioned in the schedule for

delivery of possession of the suit schedule land and permit them to

carry out the same in the body of the plaint.

2. The petitioners herein are the appellants/ plaintiffs before

the court below. They filed a suit in O.S.No.130 of 2012 on the file

of the Court of Junior Civil Judge, Atmakur for specific

performance of agreement of sale seeking a direction to execute a

registered sale deed in their favour. The trial court dismissed the

suit on 29.06.2019. Aggrieved by the same, the petitioners filed an

Appeal in A.S.No.5 of 2019 on the file of Court of Senior Civil

Judge, Atmakur. During pendency of the said Appeal, the

petitioners filed an application in I.A.No.22 of 2020 seeking relief

to amend the plaint in O.S.No.130 of 2012 and the same was

dismissed. Assailing the same, the present revision came to be

filed.

3. Heard Mr.C.Prakash Reddy, learned counsel for the

petitioners and Mr. J. Janaki Rami Reddy, learned counsel for the

respondent.

4. During hearing learned counsel for the petitioner would

contend that taking advantage of the dismissal of the application

in I.A.No.166 of 2019 and during pendency of the appeal, on

25.12.2019 the respondent/ defendant highhandedly dispossessed

the petitioners from the suit schedule land and threatened with

dire consequences. Since the petitioners have filed a suit for

specific performance of agreement of sale, the petitioner is entitled

for possession also. As such, the petitioner filed an application for

amendment of the plaint as per provision of Section 22(1)(a) of

Specific Relief Act by relying on the decision of the Hon'ble Apex

Court in "Babu Lal Vs. Hazari Lal Kishori Lal and Others"1

wherein it was held as follows:

"Besides, the proviso to Section 22(2) provides for amendment of the plaint on such terms as may be just for including a claim for such relief "at any stage of the proceeding‟. The term „proceeding‟ is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word „proceeding‟ in section 22 includes execution proceedings also. Execution is a stage in the legal proceeding. It is a step in the judicial process. It marks a stage in litigation. The legislature

(1982) I SCC 525

has given ample power to the court to allow amendment of the plaint at any stage, including the execution proceedings".

In view of the decision cited supra, it is contended that the

petitioner is entitled to file the application even at the stage of

Appeal for amendment of plaint.

5. He further contended that as per Section 55(1)(f) of

Transfer of Property Act the seller is bound to give, on being so

required, the buyer, or such person as he directs, such possession

of the property as its nature. It is the statutory liability of the seller

to deliver possession to the buyer, but the first appellate court

without looking into said aspect, dismissed the application.

6. Learned counsel for the respondent would contend that

the petitioner is not in possession of the schedule property as

rightly held by the trial court. Having failed in his attempt to get

interim injunction, the petitioner filed the application seeking

amendment of plaint by creating a false cause of action and relied

on decision of this Court in "S. Anuradha Vs. Goluguri Lakshmi

Narayana Reddy and Others"2, which reads as follows:

" 13. Though Section 26 of the Specific Relief Act provides amendment of plaint at any stage of the proceedings, the discretion given is not unbridled and cannot be used as a tool to seek the relief at any time if one can take it before, yet does not take without any reason, and thereafter at the wish and whims of the party, at the fag end of proceedings stating that it can be allowed at any stage cannot be allowed. Though Order VI Rule

2023(2) ALT 258 (AP)

17 CPC and Section 26 of the Specific Relief Act operate in the same field but with some difference, both must be read together in harmony.....".

7. Learned counsel for the respondent further contended

that in "Challapalli Venkateswara Rao and Others Vs. Meka

Gangadhra Rao"3 wherein the Hon'ble Division Bench of

composite High Court of Andhra Pradesh held as follows:

"45. .....A litigant who is not diligent about his rights and does not even choose to frame his prayers correctly, be it before the trial Court or at least before the appellate Court, has no one to blame but himself. It is too late in the day for the plaintiff to now wake up and resort to measures, which were available to him in law all along, for seeking alternative relief so as to make good the lapses on his part after the hearing is practically over. The request of Sri K. Chidambaram, learned counsel, to permit such amendment of the prayer is rejected".

Learned counsel for the respondent draws the attention of

this Court that the petitioner is not entitled to amend the plaint as

per the decision cited supra, revision is not maintainable and

same is liable to be dismissed.

8. Further learned counsel for the respondent relied on a

decision of the Hon'ble Apex Court and contended that the Hon'ble

Apex Court also viewed the scope of Order VI, Rule 17 C.P.C in

"Rajkumar Gurawara (dead) Vs. S.K.Sarwagi and Company

Private Limited"4 which reproduced hereunder:

2017(6) ALT 710 (D.B)

2008 LawSuit (SC) 897

" 5........

"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 court not have raised the matter before the commencement of trial".

9. The first appellate court observed that as per the

principles laid down in the Babulal's case, the term at any stage

of the proceedings includes the execution proceedings, but the

petitioners herein claiming that they recovery of possession by

amendment after the trial court believed that the petitioners not in

possession and enjoyment of the schedule property. Further it is

held by the first appellate court that the petitioners are not shown

any sufficient evidence even at the stage of appeal about their

possession and the first appellate court also not believed that the

petitioners are in possession and enjoyment of the schedule

property and dismissed the interlocutory injunction application.

Therefore the burden lies on the petitioners to prove their