Andhra Pradesh High Court - Amravati
Boora Krishnaveni vs Kalagarla Lakshmi Sirisha on 21 November, 2024
APHC010177762024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
THURSDAY, THE TWENTY FIRST DAY OF NOVEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL REVISION PETITION No: 970/2024
Between:
Boora Krishnaveni ...PETITIONER
AND
Kalagarla Lakshmi Sirisha and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. RAYAPROLU SRIKANTH
Counsel for the Respondent(S):
1. SARIPALLI SUBRAHMANYAM
The Court made the following:
2
ORDER:
The civil revision petitioner herein, who is the plaintiff in the suit,
filed suit O.S.No.157 of 2015 on the file of the Additional Junior Civil
Judge-cum-I Additional Judicial Magistrate of First Class, Vizianagaram,
for permanent injunction, of course, belatedly filed an interlocutory
application, vide I.A.No.121 of 2023, for amendment of the boundaries
in the schedule, wherein it is noticed that the northern and southern
boundaries were wrongly typed, hence filed an application for
amendment to note down correct boundaries.
2. The boundaries mentioned in the schedule prior to amendment:
East: Municipal Road
North : common passage
West : common stair case
South : House of Narasinga Rao
3. The amendment petition was dismissed by the learned trial Court
Judge on the following grounds:
(1) The failure to mention the correct boundaries in the original
plaint for permanent injunction raised doubts about the genuineness of
the pleadings and the due diligence of the petitioner;
(2) The amendment would not cause injustice to the other party,
and the amendment must be necessary to determine the real question
in controversy between the parties;
(3) No party should be allowed to deprive the other party of the
benefits derived from cross-examination of the opposing party's witness
by introducing any new pleadings at this stage, relying on the judgment
of the common High Court in Ponchareddy Srihari Reddy Vs.
Seeribeina Hari Krishna1.
4. The said dismissal of I.A.No.121 of 2023, vide order dated
17.04.2023, was assailed in the Civil Revision Petition on the ground
that finding of the trial Court, while dismissing the application, is
erroneous and it is contrary to the well settled principles of law and the
said amendment does not change the nature of the suit and affect the
rights of the parties and in fact it is necessary for rights of the parties
and the petitioner is seeking only amendment of the boundaries and the
trial Court has dismissed the application ignorantly and relied on the
following judgment of the erstwhile High Court of Andhra Pradesh in
(1)M/s V.I.P. Emporium and another Vs. M/s TCI Finance Ltd.2, and
(2)Yeliosetty Sahadeva Vs. Madhavilatha3, for the proposition that any
mistake, which is found to be clerical in nature, should be allowed to be
2014 (4) ALT 104
2012(3) ALD 219
(2017) 4 HLT 620
rectified by exercising inherent power vested in the court for sub-serving
the cause of justice and the amendment sought to rectify the mistake
occurred in describing the boundaries of the property in the plaint
schedule can be allowed treating the mistake as clerical mistake.
5. Repelling the contentions raised by the petitioner, learned
counsel for the respondents-defendants in the suit would submit that
documents filed, which are marked as exhibits by the petitioner,
disclose that the boundaries mentioned therein and the boundaries
mentioned in the plaint schedule are one and the same and the present
application for amendment was filed after lapse of 7½ years from the
date of filing of suit and he would contend that as held by the Hon'ble
Supreme Court in the Judgment Basavaraj and Indira and others4, no
application for amendment is maintainable after the trial commences
and the present the trial has commenced and the petitioner-plaintiff was
examined-in-chief and also argued that amendment be rejected, if the
petitioner seeks to introduce totally different new and inconsistent case
or it changes the fundamental character of the suit, hence prayed to
dismiss the Civil Revision Petition.
2024(2) ALT 33 (SC)
6. Heard Sri Rayaprolu Srikanth, learned counsel for the petitioner,
and Sri K. Subrahmanyam, learned counsel for the respondents.
7. Based on the argument advanced by the counsel for the
petitioner, it is imperative to read the provision of Order VI Rule 17 CPC,
which reads as follows:
"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 could not
have raised the matter before the commencement of trial.
8. What can be understood from a reading of the above provision is
that, (a) amendment of pleadings can be allowed at any stage; (b)
amendment must be necessary to determine the "real question of
controversy" "inter se parties"; (c) if such amendment is sought to be
brought after commencement of trial the Court must, in allowing the
same, come to a conclusion that in spite of best efforts on the part of
the party to the suit, the same could not have been brought before the
point of time, when it was actually brought.
9. Recently, the Hon'ble Supreme Court delivered a judgment in
Dinesh Goyal alias Pappu Vs. Suman Agarwal (Bindal) and Others5,
regarding the amendment of the plaint which reads thus:
11.1 The settled rule is that the Courts should adopt a liberal
approach in granting leave to amend pleadings, however, the
same cannot be in contravention of the statutory boundaries
placed on such power. In North Eastern Railway
Administration, Gorakhpur v. Bhagwan Das 2008 (8) SCC
511 it was held as under:
"16. Insofar as the principles which govern the question
of granting or disallowing amendments under Order 6
Rule 17 CPC (as it stood at the relevant time) are
concerned, these are also well settled. Order 6 Rule 17
CPC postulates amendment of pleadings at any stage of
the proceedings. In Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still
holds the field, it was held that all amendments ought to
be allowed which satisfy the two conditions : (a) of not
working injustice to the other side, and (b) of being
necessary for the purpose of determining the real
questions in controversy between the parties.
Amendments should be refused only where the other
2024 SCC Online SC 2615
party cannot be placed in the same position as if the
pleading had been originally correct, but the amendment
would cause him an injury which could not be
compensated in costs. [Also see Gajanan Jaikishan
Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC
166.]"
11.2 Over the years, through numerous judicial precedents
certain factors have been outlined for the application of Order
VI Rule 17. Recently, this Court in Life Insurance Corporation
of India v. Sanjeev Builders Pvt. Ltd. 2022 SCC Online SC
1128 , after considering numerous precedents in regard to
the amendment of pleadings, culled out certain principles:--
(i) All amendments are to be allowed which are necessary for
determining the real question in controversy provided it does
not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word "shall", in
the latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should be
ordinarily allowed if the amendment is for effective and
proper adjudication of the controversy between the parties to
avoid multiplicity of proceedings, provided it does not result in
injustice to the other side.
(iii) Amendments, while generally should be allowed, the
same should be disallowed if -
(a) By the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the party
which confers a right on the other side.
(b) The amendment does not raise a time-barred claim,
resulting in the divesting of the other side of a valuable
accrued right (in certain situations)
(c) The amendment completely changes the nature of the
suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid
defence.
(iv) Some general principles to be kept in mind are -
(I) The court should avoid a hyper-technical approach;
ordinarily be liberal, especially when the opposite party can
be compensated by costs.
(II) Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint or introduce an additional or a new approach.
(III) The amendment should not change the cause of action,
so as to set up an entirely new case, foreign to the case set
up in the plaint.
10. The grounds for dismissal of the petitioner's application to amend
the boundaries in the plaint by the learned trial Court Judge are contrary
to the established legal principles and the judgments of the Hon'ble
Supreme Court. The trial Court has failed to appreciate that allowing the
amendment would not cause injustice to the opposite party, nor would it
prejudice the rights. The amendment is necessary to determine the real
dispute between the parties, as the suit is for permanent injunction. The
petitioner is not seeking to withdraw any admission that would confer a
right on the other party as observed by the learned trial Court Judge
and, in fact, no admission was made in favour of the respondents-
defendants. Moreover, the judgment relied upon by the learned trial
Court Judge is not applicable, as in that case, an admission was
withdrawn through an amendment, whereas, in the present case, no
such admission has been made or withdrawn, and no cross-
examination has taken place. The dismissal of the amendment
application reflects a non-application of mind and is in direct
contradiction to well-settled principles of law, as well as the binding
precedent set by the Hon'ble Supreme Court, referred supra.
11. The petitioner is not seeking any amendment to the plaint itself,
but only seeks to rectify a clerical error in the description of the property
boundaries in the plaint schedule by interchanging the southern
boundary with the northern boundary. The amendment is merely
sought to correct a clerical mistake in the boundary description and
does not alter the substance of the claim. There is no specific finding
what prejudice caused to the respondents-defendants in the suit, while
interchanging the southern boundary with the northern boundary.
Merely quoting a judgment does not fulfil or serve the purpose in a legal
argument, applying case law is to discuss how the principles or
reasoning in the cited judgment are relevant to the specific facts of the
current case.
12. Hence, the impugned order dated 17.04.2023 in I.A.No.121 of
2023 in O.S.No.157 of 2015 on the file of the Additional Junior Civil
Judge-cum-I Additional Judicial Magistrate of First Class, Vizianagaram,
is hereby set aside and the said interlocutory application is allowed. The
trial Court is hereby directed to permit the petitioner-plaintiff to allow the
amendment of the boundaries in the plaint.
13. Accordingly, Civil Revision Petition is allowed, however no costs.
As a sequel, interlocutory applications pending, if any, in this case
shall stand closed.
__________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 21.11.2024
siva
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL REVISION PETITION No.970 OF 2024
Date: 21.11.2024
siva
