Sodari Mallaiah vs Jadi Mallaiah

Telangana High Court

Sodari Mallaiah vs Jadi Mallaiah on 28 January, 2021

Bench: G Sri Devi

           THE HONOURABLE JUSTICE G. SRI DEVI


           CIVIL REVISION PETITION No.1345 of 2020

ORDER:

This Civil Revision Petition is filed against the order of the

Junior Civil Judge, Chennur, dated 02.12.2020, dismissing I.A.No.54

of 2020 in O.S.No.49 of 2017 filed by the petitioner/plaintiff, under

Order VI Rule 17 C.P.C., seeking to amend the plaint.

The facts, in issue, are as under:

The petitioner/plaintiff filed the above suit for perpetual

injunction restraining the respondents/defendants, their men and

servants from entering and interfering with his possession over the

suit land admeasuring Ac.2.00 guntas in Sy.No.418/10 situated at

Dubbapally Shivar, R/M Jaipur, Mancherial District. When the suit

was posted for further evidence of the petitioner/plaintiff, he filed

I.A.No.54 of 2020 seeking amendment of the plaint, stating that in

the plaint the survey number was mistakenly mentioned as

Sy.No.418/10 instead of Sy.No.418/6 and that the same was caused

due to clerical mistake and as such amendment of survey number

in the plaint, schedule of property and Form No.8 is necessary, for

proper adjudication of the matter and further stated that if the said

amendment is permitted, no prejudice would be caused to the other

side since it will not change the nature of the suit. 2

Respondents/defendants filed counter denying the

averments made in the affidavit filed in support of the petition. It is

stated that the present petition was filed after commencement of

trial that too at the stage of further evidence of the

petitioner/plaintiff. Since the present petition is filed after cross-

examination of P.W.1, in which P.W.1 was questioned regarding the

survey number, the petition is not maintainable and is liable to be

dismissed.

After considering the aforesaid rival submissions, the trial

Court dismissed the petition. Challenging the same, the present

Civil Revision Petition is filed by the plaintiff.

Learned counsel for the petitioner/plaintiff would submit

that the amendment that is sought to be made is a very innocuous

one and that the nature of the suit will not get altered or changed.

He further submits that no prejudice would be caused to the

respondents/defendants if the survey number is amended.

Learned counsel for the respondents would submit that as

per the proviso to Order VI Rule 17 of C.P.C. no amendment can be

permitted by the Court after the trial has commenced, unless the

Court comes to a conclusion that in spite of due diligence the party

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

He further submits that the petitioner/plaintiff does not know the

survey number where his land is situated and that the present 3

petition is filed only to cover his mistakes and if the amendment is

allowed, the respondents/defendants will be put to irreparable loss

and that the said application was rightly dismissed by the trial

Court.

Before proceeding further it would be appropriate to refer to

Order VI Rule 17 of C.P.C., which reads as under:

"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."

Admittedly, the suit was coming up for further evidence of

the petitioner/plaintiff, but under Order VI, Rule 17 of the Code,

the Court may, at any stage of the proceedings, allow either party to

amend his pleadings and all such amendments shall be made as

may be necessary for the purposes of determining the real

questions in controversy between the parties.

While ordering an amendment, the Court has to see whether

such amendment is imperative for proper and effective

adjudication of the case; whether the amendment sought is a 4

bona fide one or made with a mala fide intention; and whether any

prejudice would be caused to the other party which cannot be

ultimately compensated in terms of money. The Court must also

consider as to whether the amendment if refused, would lead to

injustice or multiple litigation. One more principle to be followed

while considering the request for amendment is as to whether it

would change the character or nature of the case.

In Pankaja v. Yellappa1 the Apex Court held as under:

"If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. An amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title."

In Sampath Kumar v. Ayyakannu and another2 the Apex

Court while dealing with the scope of Order VI Rule 17 of C.P.C.

held as under:-

"Order VI Rule 17 of the C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference

1 (2004) 6 SCC 415 2 (2002) 7 SCC 559 5

to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment."

In the case of Mohinder Kumar Mehra v. Roop Rani Mehra3

the Apex Court has held that application filed by plaintiff for

amendment of plaint and the trial court rejected the application of

amendment holding that the claim is barred by limitation. Newly

inserted Rule 17 of Order VI of the C.P.C. is to control filing of

application for amendment of pleading subsequent to

commencement of trial. It has been held that in view of object of the

proviso it cannot be said that amendment is barred in view of the

proviso and final determination as to whether the claim was barred

would have been decided after considering the evidence led by the

parties.

In the case of Rajesh Agrawal v. K. K. Modi4 the Apex Court

held in paragraphs 16, 17 and 18 as under:-

(2018) 2 SCC 132 4 (2006) 4 SCC 385 6

"16. Order VI Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.

17.In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.

18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court."

In the instant case, the suit was filed for perpetual injunction

and the amendment sought is only with regard to survey number 7

and that nature and character of the suit will not be changed by

permitting amendment of the survey number and the nature of the

suit shall remain that of perpetual injunction. Such being the

position, no prejudice would be caused to the respondents/

defendants if the said amendment is allowed.

For the aforesaid reasons, I do not find any reason to reject

the application for amendment of the survey number. Hence, in

view of the judgments of the Apex Court referred to above and

having regard to the facts and circumstances of the case, the

impugned order is set aside. The petitioner/plaintiff is permitted