Andhra Pradesh High Court - Amravati
Sri. Nemaliapudi Janardhana vs Poosa Muthyalu And Others on 19 November, 2024
APHC010656232023
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3311]
(Special Original Jurisdiction)
TUESDAY, THE NINETEENTH DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION Nos.3 & 4/2024
Between:
Sri. Nemaliapudi Janardhana ...PETITIONER
AND
Uppalapati Venkata Krishna Rao ...RESPONDENT
Counsel for the Petitioner:
1. K PALLAVI
Counsel for the Respondent:
1. P S P SURESH KUMAR
The Court made the following:
2
BSB, J
C.R.P.Nos.3 &4 of 2024
COMMON ORDER:
These two revisions are filed challenging the orders, dated
27.09.2023, dismissing I.A.Nos.486 of 2021 and 487 of 2021 in
O.S.No.152 of 2021 on the file of the Court of the Principal Junior Civil
Judge, Gudur, SPSR Nellore District.
2. C.R.P.No.3 of 2024 is filed aggrieved by the order passed in
I.A.No.486 of 2021 whereas C.R.P.No.4 of 2024 is filed aggrieved by
the order passed in I.A.No.487 of 2021.
3. I.A.No.486 of 2021 is filed under Order VI Rule 17, Section 151
CPC to permit the petitioner to amend the plaint adding the relief of
declaration of title and to carry out the consequential amendments.
I.A.No.487 of 2021 is filed under Order 1 Rule 10 & Section 151 CPC
seeking permission to add the respondents 2 to 10 as party defendants
2 to 10 in the suit.
4. Heard Ms. K. Pallavi, the learned counsel for the petitioner/
plaintiff and Sri P.S.P.Suresh Kumar, the learned counsel for the
respondent/defendant. In C.R.P.No.4 of 2024, the notices sent to
respondents No.2 to 4 & 6 to 10 returned un-served; and in spite of
service of notice on respondents No.5 & 11, there is no appearance on
their behalf. Since both the interlocutory applications arise out of the
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C.R.P.Nos.3 &4 of 2024
same suit and they are interconnected, these revisions, which were filed
challenging the orders in those applications, are heard together and are
being disposed of together.
5. The facts necessary for disposal of these revisions, in brief, are
as follows:
a. The plaintiff brought the suit for permanent injunction on the basis
of a sale deed executed in his favour apart from 1-B register, adangal
and E pass book issued in his favour. Ad interim injunction order was
granted in favour of the plaintiff. Meanwhile, the respondent/defendant
is trying to sell the land purchased by him, which includes the land sold
in favour of the plaintiff with a different subdivision. On enquiries, the
plaintiff came to know that when the plaintiff applied for conversion of
his land into non-agricultural land, the revenue authorities made
unauthorized subdivisions without entering the same in the F.M.B. and
in making the sub-divisions, the land belonging to his vendor, P.
Venkatasubba Reddy, was included in sub-division 33/3 and 34/1. The
said subdivision was made without any enquiry as to title and without
giving any notice either to the plaintiff or his vendor, who are actually in
possession and enjoyment of the land. In survey no.34, only two
subdivisions were made whereas the name of the plaintiff was
mentioned in Sy.No.34/5 in 1-H adangal. The plaintiff obtained copy of
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C.R.P.Nos.3 &4 of 2024
the report of the Tahsildar, Chillakur, under the provisions of the Right to
Information Act along with FMB copy and found that there were no
subdivisions at the time of his purchasing the land and now the land
was included in subdivision 33/3 and 34/1 of Kadivedu village. Taking
advantage of the fictitious subdivisions, 1-B and adangal and the order
permitting conversion of land into non-agricultural land, the defendant is
making hectic efforts to sell the land of the plaintiff. The plaintiff was
advised to amend the plaint by including the prayer for declaration to
protect his possession. For the same reason, the petitioner sought
impleadment of the respondents No.2 to 11.
b. The defendant filed counter opposing the petitions and stating
that the plaintiff obtained a sale deed from his vendor in collusion with
him as, in fact, his vendor has been suffering from psychiatric problem
for several years, and therefore, the alleged sale deed executed by
such a person is void and unenforceable. There was a sub-division
made by the revenue authorities in relation to the property purchased by
the defendant and sub-division numbers 33/1, 33/3 and 34/1 were
allotted, whereas the alleged sale deed is in relation to survey numbers
33/5 and 34/5. Therefore, there is no co-relation between the above
said survey numbers. The sub-division took place in the year 2015 on
the basis of the conversion proceedings issued by the Sub-Collector,
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C.R.P.Nos.3 &4 of 2024
Gudur. The plaintiff is not entitled to implead the proposed respondents
and seek declaration as the suit is for bare injunction. The application
for impleadment can be heard only after disposal of the application
seeking amendment. After obtaining ex parte temporary injunction, the
petitioner raised this frivolous litigation. There are no merits and the
petitions are liable to be dismissed.
6. After hearing both parties, the trial Court dismissed both the
petitions observing that the petitioner suppressed all the material facts
by the date of filing of the suit and filed the suit for permanent injunction
and after obtaining ex parte orders even prior to service of notice on the
opposite party came up with the petition for amendment of the plaint
and further there are no grounds to implead the proposed parties as
defendants 2 to 11 in the suit.
7. Aggrieved thereby, the plaintiff preferred these two revision
petitions.
8. The contention of the petitioner is that the amendments sought
could not be pleaded when the plaint was originally filed as they came
to the knowledge of the petitioner subsequently and moreover, all those
amendments are required for complete adjudication of the actual
dispute involved in the case or else, the petitioner would be deprived of
leading evidence of the actual dispute involved. It is also contended
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C.R.P.Nos.3 &4 of 2024
that the trial Court erred in proceeding under the conception that the
petitioner played fraud to obtain the interim order and now is seeking
amendment of the prayer and that the bona fides of the petitioner have
been wrongly understood by the trial Court. It is further contended that
amendment of pleadings can be permitted at any stage of the suit,
however, the petitioner approached the Court shortly after filing of the
suit, and therefore, the Court should be more liberal in allowing the
amendments than rejecting them and particularly, in this case, no
prejudice would be caused as the defendant has an ample opportunity
of filing the written statement after the amendments are allowed.
9. On the other hand, the learned counsel for the respondent
contended that the trial Court rightly appreciated the contentions of both
sides and dismissed the petition. In support of his contention, the
learned counsel placed reliance on the decision in P. Prakash Vs.
Poosa Muthyalu and others1, wherein it was held at paragraph No.6
as follows:
"6. It is true that the Court may at any stage of the
proceedings allow either party to alter or amend the pleadings
in such manner and all such amendments shall be made as
may be necessary for purposes of determining the real
question involved between the parties. It is equally true, that a
2015 (6) ALT 296
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C.R.P.Nos.3 &4 of 2024
very liberal approach is to be adopted in matters relating to
the amendment of the pleadings, so long as the period of
limitation provided has not expired, adversely affecting the
accrued rights of others. The principal object in allowing the
amendments is to facilitate the Court to decide the rights of
the parties in a comprehensive manner. But however, no
amendment will be allowed to introduce a new set of ideas to
the prejudice of any right acquired by any party by lapse of
time. The relevant principles in this regard have been
crystallized by Sarkar, J., in A.K. Gupta & Sons Limited v.
Damodar Vally Corporation [AIR 1967 SC 96], in the
following words:
"7. It is not in dispute that at the date of the application for
amendment, a suit for a money claim under the contract was
barred. The general rule no doubt, is that a party is not
allowed by amendment to set up a new case or a new cause
of action particularly when a suit on new case or cause of
action is barred: Weldon v. Neale, (1887) 19 QBD 394. But it
is also well recognized that where the amendment does not
constitute the addition of a new cause of action or raise a
different case, but amounts to no more than, a different or
additional approach to the same facts, the amendment will be
allowed even after the expiry of the statutory period of
limitation : see Charan Das v. Amir Khan, [AIR 1921 PC 5]
and L.J. Leach and Company Ltd. v. Jardine Skinner and
Company, [1957 SCR 438 : AIR 1957 SC 357].
8. The principal reasons that have led to the rule last
mentioned are first, that the object of Courts and rales of
procedure is to decide the rights of the parties and not to
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C.R.P.Nos.3 &4 of 2024
punish them for their mistakes {Cropper v. Smith, (1884) 26
Ch D 700 (710-711) and secondly, that a party is strictly not
entitled to rely on the statute of limitation when what is sought
to be brought in by the amendment can be said in substance
to be already in the pleading sought to be amended Kisandas
Rupchand v. Rachappa Vithoba, [ILR (1909) 33 Bom. 644
at 651] approved in Pirgonda Hongonda Patil v. Kalgonda
Shidgonda, [1957 SCR 595 (603) : AIR 1957 SC 363 at
P.366].
9. The expression "cause of action" in the present context
does not mean "every fact which it is material to be proved to
entitle the plaintiff to succeed" as was said in Cooke v. Gill,
(1873) 8 CP 107 (116), in a different context, for if it were so,
no material fact could ever be amended or added and of
course, no one would want to change or add an immaterial
allegation by amendment. That expression for the present
purpose only means, a new claim made on a new basis
constituted by new facts. Such a view was taken in Robinson
v. Unicos Property Corporation Ltd., 1962 (2) All ER 24,
and it seems to us to be the only possible view to take. Any
other view would make the rule futile. The words "new case"
have been understood to mean "new set of ideas": Dornan v.
J.W. Ellis and Company Ltd., (1962) 1 All ER 303. This also
seems to us to be a reasonable view to take. No amendment
will be allowed to introduce a new set of ideas to the prejudice
of any right acquired by any party by lapse of time."
Again in B.K. Narayana Pillai v. Parameswaran Pillai and
another, [(2000) 1 SCC 712], the relevant principle is spelt
out as under:
BSB, J
C.R.P.Nos.3 &4 of 2024
"The principles applicable to the amendments of the plaint
are equally applicable to the amendments of the written
statements. The Courts are more generous in allowing the
amendments of the written statement as the question of
prejudice is less likely to operate in that event. The defendant
has a right to take alternative plea in defense which, however,
is subject to an exception that by the proposed amendment
the other side should not be subjected to injustice and that
any admission made in favor of the plaintiff is not withdrawn.
All amendments of the pleadings should be allowed which are
necessary for determination of the real controversies in the
suit provided that proposed amendment does not alter or
substitute a new cause of action on the basis of which the
original lies was raised or defense taken. Inconsistent and
contradictory allegations in negation to the admitted position
of facts or mutually destructive allegations of facts should not
be allowed to be incorporated by means of amendment to the
pleadings. Proposed amendment should not cause such
prejudice to the other side which cannot be compensated by
costs. No amendment should be allowed which amounts to or
relates (sic results) in defeating a legal right accruing to the
opposite party on account of lapse of time. The delay in filling
the petition for amendment of the pleadings should be
properly compensated by costs and error or mistake which, if
not fraudulent, should not be made a ground for rejecting the
application for amendment of plaint or written statement."
After exhaustively considering the subject, Justice Dalveer
Bhandari, speaking for the Court in Revajeetu Builders and
Developers v. Narayanaswamy and Sons and others,
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C.R.P.Nos.3 &4 of 2024
[(2009) 10 SCC 84], has culled out the relevant principles in
Paragraph 67 of the judgment which are as under:
"(1) Whether the amendment sought is imperative for
proper and effective adjudication of the case?
(2) Whether the application for amendment is bona fide or
mala fide?
(3) The amendment should not cause such prejudice to the
other side which cannot be compensated adequately in terms
of money;
(4) Refusing amendment would in fact lead to injustice or
lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case?
and
(6) As a general rule, the Court should decline amendments
if a fresh suit on the amended claims would be barred by
limitation on the date of application."
10. In fact, by applying the very same principles, in the present case,
amendments sought are required to be allowed and they do not come in
the way to refuse the reliefs sought.
11. It is settled law that the amendment to the pleadings proposed
before commencement of the trial must be liberally allowed and it is only
if the amendment of pleading is sought after commencement of trial, the
petitioner is required to satisfy the condition in the provision that in spite
of due diligence, the proposed amendment could not be taken before.
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C.R.P.Nos.3 &4 of 2024
In the present case, shortly after filing the suit, the petitioner has sought
the above amendment in view of the facts pleaded in the proposed
amendments and in the affidavit filed in support of the petition.
12. Apart from seeking declaration by way of amendment, the
petitioner retains other prayers of perpetual injunction sought. As such,
it is improper to comment that after obtaining ad interim injunction, the
petitioner proposed to amend the entire plaint. In fact, the nature of the
case, or the basic facts pleaded to obtain the reliefs have not been
substantially changed, but they are more elaborately described in the
amendments, in furtherance of the pleadings already taken, without
altering them or deviating from them. Therefore, it is a case fit to permit
the petitioner to make such amendment, however, the trial Court failed
to properly appreciate the legal as well factual position and refused to
exercise its jurisdiction.
13. In view of the amended pleadings, it is required to implead the
proposed parties as defendants as they are necessary and proper
parties. Therefore, the contention that the petition is premature before
allowing the amendments cannot be accepted. Therefore, the order
impugned in this regard is liable to be set aside.
14. Thus, the impugned orders need to be interfered with and
consequently, both the revision petitions are to be allowed.
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C.R.P.Nos.3 &4 of 2024
15. Accordingly, both the revision petitions are allowed setting aside
the order, dated 27.09.2023, passed by the Principal Junior Civil Judge,
Gudur, SPSR Nellore District, in I.A.Nos.486 of 2021 and 487 of 2021 in
O.S.No.152 of 2021. Consequently, I.A.Nos.486 of 2021 and 487 of
2021 are allowed.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
__________________
B.S.BHANUMATHI, J
19.11.2024
RAR
