Telangana High Court
K.Prabhakar Reddy vs K.Srinivas Reddy Another on 7 April, 2022
Bench: G.Anupama Chakravarthy
HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY
CIVIL REVISION PETITION No.4466 of 2013
ORDER :
1. This revision is arising out of the orders in I.A.No.195 of
2009 in O.S.No.263 of 2002, dated 22.10.2009.
2. The aforesaid I.A. has been filed by the
petitioners/plaintiffs under Order XXIII Rule 3(b) of CPC to
amend the plaint from perpetual injunction to that of
declaration, mandatory injunction, recovery of possession and
to remove the structures raised by the respondent/defendant in
the suit schedule property during the pendency of status quo
orders. For the sake of convenience, the parties are hereinafter
referred to as plaintiffs and defendant.
3. In the said application, a detailed counter affidavit was
filed by the defendant before the trial Court. On considering
the contentions of both sides, the trial Court has allowed the
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CRP.No.4466 of 2013
application of plaintiffs for amendment of plaint. Aggrieved
of the same, the defendants have filed this revision.
4. Heard both sides and perused the record.
5. It is urged by the learned counsel for revision
petitioner/defendant that the order impugned is contrary to law
and the trial Court has failed to see that Order XXIII Rule 3(b)
has no application for amending the plaint. It is further
contended that the suit was initially filed for perpetual
injunction and with the amendment sought for i.e. declaration
of title, mandatory injunction and also for recovery of
possession will change the nature of the suit itself, but the trial
Court, without properly appreciating the said fact, had allowed
the petition. It is further contented that the petition filed before
the trial Court was silent as to when possession of suit
schedule property was taken by the defendant, and therefore,
the trial Court ought to have dismissed the said application.
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CRP.No.4466 of 2013
6. On the other hand, learned counsel for respondents/
plaintiffs contended that there is no error or irregularity in the
order passed by the trial Court, as initially the suit was filed
for perpetual injunction and during the pendency of the suit,
inspite of status quo orders, as the defendant had encroached
into the suit schedule property and raised walls in the land of
the plaintiffs, the plaintiffs were constrained to file the
application for amendment of plaint seeking for declaration of
title, grant of mandatory injunction and for recovery of
possession. Accordingly, prayed to dismiss the revision
petition.
7. A perusal of the record reveals that the suit is of the year
2002 and the interlocutory application was filed in the year
2009 i.e. after 7 years of institution of the suit, for amending
the plaint on the ground that during pendency of suit
proceedings, the defendant had encroached into the land of the
plaintiffs and raised a wall. It is the contention of plaintiffs
that in view of the interim orders passed by this Court which
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CRP.No.4466 of 2013
were extended from time to time, the matter is pending before
the trial Court since 2002.
8. Admittedly, the lis is pending for the past 20 years.
Moreover, the case is coming up for cross-examination of
PW-1 as has been admitted by both the parties. If at all
amendment of plaint is not sought for by the plaintiffs, the
remedy available for them is to file a fresh suit for mandatory
injunction, recovery of possession and for declaration of title.
This Court is of the considered view that it is not justifiable to
drive the plaintiffs to file a fresh suit after lapse of 20 long
years. Further, even if the plaintiffs are allowed to amend the
plaint as sought for, it would not change the nature of the suit,
as the burden will always be on the plaintiffs to establish their
case that initially they were in possession of the suit schedule
property as the suit was originally filed by them seeking
perpetual injunction. Further, it is for the plaintiffs to adduce
evidence before the trial Court that during subsistence of
status quo orders, the defendant has encroached upon the
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CRP.No.4466 of 2013
subject property and constructed a wall. Therefore, no
prejudice will be caused to the defendant if the plaint is
amended as prayed for.
9. In this connection, a reference can be made to the
judgment of this Court in R.Vikram v. Mena Bapata1,
wherein, this Court has held that in appropriate cases i.e.
where the nature of suit does not change and no prejudice
would be caused to the defendant, amendment of plaint can be
allowed instead of driving the plaintiff to file another suit. As
has been observed above, in the present case also, if
amendment of plaint as sought for by the plaintiffs is allowed,
the nature of the suit is not going to be changed and no
prejudice is going to be caused to the defendant, as the burden
still lies on the plaintiffs to establish their possession over the
suit schedule property as on the date of filing of the suit which
was originally filed for perpetual injunction. Therefore, the
2009 (5) ALT 49
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CRP.No.4466 of 2013
aforesaid judgment squarely applies to the facts of the present
case.
10. For the aforesaid reasons, this revision petition is devoid
of merits and the same is accordingly dismissed. However,
taking into consideration the fact that the suit is pending for
the past 20 years and admittedly it is coming up for cross-
examination of PW-1, the trial Court is directed to dispose of
the suit as expeditiously as possible, preferably within three
months from the date of receipt of a copy of this order. Both
the parties are directed to co-operate with the trial Court for
expeditious disposal of suit as directed above. No order as to
costs.
11. Pending miscellaneous applications, if any, shall stand
closed.
_________________________________
G.ANUPAMA CHAKRAVARTHY, J
Date: 07.04.2022
ajr
