Andhra Pradesh High Court - Amravati

Upputuri Lalithamma Alla ... vs Upputuri Somamma Died And 5 Others on 29 September, 2023

         THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                          I.A. No.1 of 2023
                                  in
                     APPEAL SUIT No.751 OF 2010

ORDER:

1. This petition is filed under Order 6 Rule 17 of Civil Procedure

Code, 1908 (for short 'C.P.C.') by the petitioners/appellants seeking to

amend the written statement in O.S. No.198 of 2003 on the file of III

Additional Senior Civil Judge (Fast Track Court), Guntur (for short, 'the

trial court') by adding paras as 17(a) and 17(b) after para No.17.

2. Brief averments of the affidavit filed by the 1st petitioner

accompanied with the petition, follows:

(a) The 1st petitioner is the 1st appellant in the main appeal.

Respondents 2 to 6 are the children of the 1st petitioner's husband, late

Suraiah, through his 1st wife, i.e., the 1st respondent herein; the 5th

respondent initiated the suit (O.S. No.198 of 2003) before the trial Court,

seeking partition of the suit A & B schedule properties into six equal

shares and allocation of one such share to her. Alternatively, she sought

to divide the properties into nine equal shares and allocate one such

share to her; the 1st petitioner, submitted a written statement opposing

the claim made by the 5th respondent.

(b) The 1st petitioner also filed a separate suit (O.S. No.132 of 2007)

against the respondents herein before the trial Court, seeking permanent

injunction; both suits were consolidated and evidence was led in

O.S.No.198 of 2003; following the completion of trial and hearing from

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

both sides, the trial Court passed a preliminary decree in O.S.No.198 of

2003. It dismissed the 1st petitioner's suit in O.S. No.132 of 2007 in a

common Judgment, dt.10.06.2010.

and the respondents, partitioned the suit schedule properties by way of

an unregistered partition deed (Ex.B.28). According to Ex.B.28, A-

schedule properties were allocated to the respondents, while B-schedule

properties were assigned to the 1st petitioner. Additionally, the

respondents/ defendants 1 to 4 executed a letter of

acknowledgement/acceptance dt.23.07.1998 (Ex.B.29). Based on

Ex.B.28, the respondents transferred the A-schedule properties through

registered sale deeds (Exs.B.1, B.2, B.3 and B.5) along with a registered

gift deed dt.05.03.2008 (Ex.B.4). The affidavit asserts that the

respondents in collusively concealed the existence of the Ex.B.28,

Ex.B.29, Exs.B.1 to B.5, and filed the suit in O.S.No.198 of 2003 with

false claim.

(d) It is further stated that the preliminary decree passed by the trial

Court is considered invalid and nullity, and this Court is empowered to

enquire into the matter, particularly, in light of section 44 of the Indian

Evidence Act, as laid down by the Hon'ble Apex Court. The 1st

respondent did not raise the issues of fraud, collusion and

misrepresentation in her original written statement before the trial Court.

However, these pleas are very much essential for effective adjudication of

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

the ongoing dispute. The proposed amendment, as detailed in the written

statement does not alter the cause of action or change the nature of suit,

instead it only supplements the existing facts already on record and does

not resulting any surprise or prejudice to the contentions of the

respondents/plaintiffs.

3. The 5th respondent filed a counter, disputing claims made in

support of the petitioner's affidavit and asserts the following contentions:

(a) The trial Court passed a preliminary decree in favour of the 5th

respondent; the 1st petitioner is not legally wedded wife of their father;

the petitioners did not raise the issue of alleged unregistered partition in

the earlier suit; the alleged unregistered partition deed (Ex.B.28) is

inadmissible; if the alleged partition were true, the petitioners would

have taken that plea earlier; in O.S. No.132 of 2007 also, the petitioners

did not raise the alleged partition, indicating that Ex.B.28 is fabricated;

the petitioners filed the appeal in 2010, but they did not take any steps

in the matter until now; the current application comes more than 20

years after the suit was filed and 13 years after the Judgment was

passed; the alleged registered sale deeds vide Exs.B.1, B.2, B.3 and B.5

are not relevant at this stage; the plea of collusion and suppression of

material documents should have been included in the earlier written

statement; they did not suppress any material documents and there was

no earlier partition. It is further asserted that as per the proviso Order 6,

Rule 17 of C.P.C., it clearly shows that no application for amendment

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

shall be allowed after the trial has commenced unless the Court

concludes that despite due diligence, the party could not have raised the

matter before the commencement of the trial.

4. The 6th respondent filed a counter affidavit, contending that

Ex.B.28 is an unregistered partition deed defined U/sec. 2(15) of Stamp

Act and is a document that should have been compulsorily registered

according to U/sec.17 of Registration Act; the 5th respondent initiated

O.S.No.198 of 2003 in the trial Court, based on the 1st petitioner's claim,

requesting the partition of plaint A and B schedule properties. The 1st

petitioner filed O.S.No.308 of 2003 seeking permanent injunction, 15

years after the alleged Ex.B.28 partition deed; the said suit was

transferred to Guntur and renumbered as O.S.No.132 of 2007 before the

trial Court. In the original plaint in O.S. No.308 of 2003, she did not

mention Exs.B.28 or B.29 and assert that the lands were her Stridhana

properties. It was only in the 1st week of December 2002, that the

defendants negotiated for a portion of the lands, but the 1st petitioner

refused, stating that properties were exclusively Stridhana properties.

Pending the suit, the 5th respondent colluded with plaintiffs/appellants,

leading to the 6th respondent filing a petition to be transposed as the 2nd

plaintiff, which was granted as per orders in I.A.No.310 of 2009,

dt.07.10.2009. On 20.08.2009, the 1st appellant stated for the first time

that Ex.B.28 (partition deed) was marked subject to objection. In her

written statement, she pleaded for the dismissal of the suit concerning

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

the B-schedule properties on the grounds that they were her Stridhana

properties. It is asserted that the appellant is aware that no evidence can

be introduced without appropriate pleading, and she attempted to amend

the pleadings based on her evidence. Such an amendment cannot be

allowed after the closure of evidence, especially when it contradicts her

earlier assertion regarding the Stridhana property.

5. Heard Sri Sravan Kumar Mannava, learned counsel for the

petitioners/appellants and Sri N. Sriram Murthy, learned counsel for the

5th respondent and Sri A. Rama Mohan Rao, learned counsel for the 6 th

respondent.

6. Now, the point for determination is:

Whether the petitioners/appellants established the grounds to amend the written statement in O.S.No.198/2003 on the file of III Addl. Senior Civil Judge Court, Guntur?

7. Learned counsel for the petitioners contends that the object of

Order 6 Rule 17 of C.P.C., means that the Court should try the merits of

the case that comes before it and should consequently allow the

amendments that may be necessary for determining the real question in

controversy between the parties. Before proceeding with the matter, it is

made clear that this Court is not supposed to express any opinion on the

merits of the case at this stage, this Court will consider the facts which

are necessary only for the disposal of the petition.

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

8. Based on the available record, it is evident that the suit in

O.S.No.198 of 2003 was filed on the file of learned III Additional Senior

Civil Judge, Guntur, seeking partition of the suit A & B schedule

properties. After trial, the suit in O.S. No.198 of 2003 was disposed of, by

passing the preliminary decree. The suit in O.S. No.132 of 2007 was also

filed in the same Court, seeking a Permanent Injunction. Both the suits

were consolidated, and the evidence was led in O.S. No.198 of 2003. The

suit in O.S. No.132 of 2003 was dismissed.

9. Aggrieved by the judgment passed in O.S. No.198 of 2003, the

defendants preferred the present appeal as A.S. No.751 of 2010.

Aggrieved by the judgment passed in O.S. No.132 of 2007, the plaintiffs

in the said suit preferred the appeal, which is renumbered as TRAS.No.1

of 2022. Both the appeals are pending before this Court.

10. The respondents' counsel contends that though the petitioners

filed an application seeking to amend the written statement, but such an

application was not moved in the TRAS.No.1 of 2022. The petitioners'

needs to clarify why they did not seek an amendment of the plaint in

O.S.No.132 of 2007, especially since many of the schedule properties are

common to both suits. In O.S.No.132 of 2007, the plaintiffs assert that

'B' schedule properties in O.S.No.198 of 2003 are Stridhana properties.

However, in the current proceedings, the petitioners are contending that

the 'B' schedule properties were subjected to partition and are joint

family properties. Learned counsel for the respondents relied on a

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

decision reported in Avanigadda Venkayamma vs. Munnangi

Raghavulu1, wherein it is held that:

"A party to the suit cannot be allowed to approbate and reprobate."

11. I find considerable force in the submission of the counsel for the

respondents. Courts are required to weigh the scale of the balance of

justice in respect to both parties, and the principle cannot be given a go-

by under the guise of a liberal approach. Discretionary power must be

exercised with caution, due care, and circumspection. The Court is

required to exercise discretion judiciously, cautiously and strictly in

compliance with the basic principles laid down in this regard in a catena

of decisions of the Hon'ble Supreme Court.

12. The petitioners are now seeking permission to amend the written

statement in O.S.No.198 of 2003 by stating that as per the unregistered

partition deed, dated 22.07.1998, 'A' schedule properties are allocated to

the respondents and 'B' schedule properties are allocated to the

petitioners. However, they have not provided a satisfactory explanation

as to why these pleas were not included in their original written

statement while the suit was ongoing. The suit was eventually decreed on

10.06.2010 and the appeal was filed in 2010. Thirteen years after filing

the appeal, they have come up with this petition. It is not their case that

they were unaware of the existence of the partition deed, when they filed

their original written statement. They are blaming the plaintiffs in

1 2023 (3) ALT 642 (A.P.)

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

O.S.No.198 of 2003 of concealing the earlier unregistered partition deed.

But they have not clarified why they did not raise this issue in their

original written statement. Furthermore, they claim that the unregistered

partition deed was marked as Ex.B.28, indicating their knowledge of its

existence and filing in the trial Court. However, they did not take steps to

amend the written statement at that time. Having suppressed the

existence of the partition deed in the written statement, this Court views

that the petitioners' cannot blame the respondents now. The parties are

not supposed to adduce evidence without support of the pleadings.

However, the trial Court has permitted them to adduce evidence

regarding the partition deed. Now, the petitioners want to amend the

written statement in tune with the evidence. This Court views that it is

not permissible under the law. If ultimately it is established that both

parties want to defeat the rights of the third parties by suppressing the

execution of the partition deed, the Court may pass appropriate

judgment while disposing of the appeal to protect the interests of third

parties. Suppose the petitioners' contention regarding the partition of the

properties is accepted to be true, and both parties admit the execution of

the unregistered partition deed and enjoy the properties in pursuance of

the partition deed, it may be nothing but playing fraud by both parties to

defeat the interest of third parties who said to have purchased the

properties.

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

13. The learned counsel for the petitioners relied on a decision

reported in Bagh Amberpet Welfare Society, Hyderabad and others

vs. State of A.P.2, the Composite High Court of Andhra Pradesh relied

on a decision of the Full Bench of the Bombay High Court in Guddappa

Chikkappa Kurbar vs. Balaji Ramji Dange, wherein it is observed

that:

"No Court will allow itself to be used as an instrument of fraud, and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud".

14. The learned counsel for the petitioners relied on a decision

reported in S.P. Chengalvaraya Naidu (dead) by Lrs. Vs. Jagannath

(dead) by Lrs and others3, the Hon'ble Apex Court held that:

"6.xxx A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an advantage.

xxx Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the Court.

xxx A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document to gain advantage on the other side, then he would be guilty of playing fraud on the Court and on the opposite party."

2 2015(2) ALT 795 (S.B.) 3 (1994) 1 S.C.C. 1

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

15. The principle in the above decision can be equally applicable to

both parties. As such, the contention raised by the petitioners regarding

fraud played by the other side by suppressing admitted facts and their

effect can be considered at the stage of final adjudication of the matter.

This Court views that power conferred under Order 6 Rule 17 C.P.C., is

subject to a rider put by the proviso to Order 6 Rule 17 added in terms of

C.P.C. (Amendment Act of 2002), which provides that no application for

amendment should be allowed after the trial has commenced, unless the

Court concludes that despite due diligence, the party could not have

raised the matter, for which amendment is sought, before the

commencement of the trial.

16. Learned counsel for the petitioners relied on decision reported in

Life Insurance Corporation of India vs. Sanjeev Builders Private

Limited and another4, wherein the amendment is allowed, this Court

finds that it has no application to the facts of the case as the suit in the

said case has been instituted on 08.06.1979 before the amendment to

Order 6, Rule 17 C.P.C. and further, the suit is yet to be adjudicated.

17. Learned counsel for the petitioners also relied on a decision

reported in Vineet Kumar vs Mangal Sain Wadhera5, wherein the

Hon'ble Apex Court held that:

"17. The appellant in the present case only seeks the protection of the new Rent Act, which became applicable to the premises in question

4 2022 S.C.C. OnLine SC 1128 5 (1984) 3 SCC 352

T.M.R.,J I.A. No.1 of 2023 in A.S. No.751 of 2010

during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be not given to the appellant. Section 20 of the new Rent Act provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section.

Section 39 also indicates that the parties are entitled to make necessary amendments in their pleadings and to adduce additional evidence where necessary."

18. As it is a suit instituted subsequent to the amendment to Order 6

Rule 17 of C.P.C., the learned counsel for the petitioners needed to

explain how the above observations can be made applicable to the

present facts of the case, more particularly when the New Rent Act

provide provision to make necessary amendments in the pleadings.

19. Even otherwise, as per proviso to Order 6, Rule 17 C.P.C., no

application for amendment shall be allowed after the trial has

commenced unless the Court concludes that despite due diligence, the

party could not have raised the matter before the commencement of trial.

The principles applicable to the amendments of the plaint are equally

applicable to the amendments to the written statement. Here, in this

case, the suit is disposed of, and the appeal is pending for more than ten