Gaddam Gangamani vs Gaddam Shobha
2022 Latest Caselaw 622 Tel

THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                        CRP No.2751 of 2019
ORDER:

1. This Civil Revision Petition is filed under Article 227 of the

Constitution of India, assailing the order dated 18.10.2019 in I.A.

No.121 of 2019 in A.S.No.19 of 2018 on the file of the learned

VIII Additional District Judge at Nizamabad.

2. The application in IA No.121 of 2019 was filed under Order-

VI, Rule-17 of the Civil Procedure Code, 1908 (for short 'CPC') to

amend the plaint including para 4 (a) as mentioned in the petition.

3. The brief facts of the case are that the plaintiff has filed the

original suit in OS No.16 of 2009 before the Senior Civil Judge's

Court, Nizamabad, for declaration of title, recovery of possession and

perpetual injunction and also for damages. The defendants have filed

their written statement. In the plaint, the cause of action shown by the

plaintiff to file the suit was that when the defendants claimed

ownership over the suit schedule property, vide notice dated

27.09.2007, and when plaintiff's husband has got issued a legal notice

dated 15.02.2006 to vacate the premises. After full length trial, the

suit of the plaintiff was dismissed. In the original suit, issue No.1 was

framed as "whether the husband of the plaintiff purchased the suit

schedule property and he was the absolute owner and possessor of the

suit schedule property?". The learned trial judge while answering the

issue held that Ex.A.1 sale deed dated 10.10.1991 does not create any

AVRJ CRP No.2751 of 2019

right or title in favour of Chandraiah and consequently, execution of

Ex.A.16-gift settlement deed dated 29.03.2005 by Chandraiah in

favour of the plaintiff, does not entitle the plaintiff to claim title over

the property, as no person without title in transfer of property to

another person. Accordingly, issue No.1 was decided against the

plaintiff in the original suit.

4. From the pleadings in the plaint, the plaintiff has been claiming

title and possession over the suit schedule property-tin shed house

with open area bearing municipal No.3-5-208 with its corresponding

old No.3-5-448/1 situated at Gouthama Budha Veedi, Kotagally,

Nizamabad, approximate extent of 100 square years bounded on

East : house of Susheela Gangareddy West : house of Nanchari Venkatesham North : Municipal road South : house of Aruna Jyothi.

The plaintiff has been claiming the suit schedule property stated

above, through the gift settlement deed dated 29.03.2005 executed by

Chandraiah in her favour. The said Chandraiah has claimed the said

property through Ex.A.1 sale deed dated 10.10.1991. Aggrieved by

the dismissal of the original suit, an appeal vide AS No.19 of 2018

was filed and pending on the file of the VIII Additional District Judge,

Nizamabad.

5. During pendency of the appeal, the plaintiff has filed the

application under Order-VI, Rule-17 CPC seeking amendment of

AVRJ CRP No.2751 of 2019

pleadings in the plaint by incorporating the para 4 (a) in the plaint in

OS No.16 of 2009 to the effect that the plaintiff's husband has

obtained agreement of sale dated 10.10.1991, subsequently, Smt. Dara

Laxmi has executed a registered sale deed, vide document No.3064 of

2018, dated 23.03.2018 conveying the title in favour of the plaintiff in

the above said sale deed. Thus, the plaintiff has right, title over the

suit schedule property and the defendants are liable to be evicted.

Such amendment is required for fair adjudication even at the belated

stage and the proposed amendment does not change the nature of the

suit, inasmuch it can only help for proper adjudication of the suit, it

does not prejudice the rights of the defendants in any manner. The

plaintiff is seeking amendment in view of the subsequent

developments after the dismissal of the original suit by the trial Court,

during pendency of the appeal the original owner has agreed to sell

and execute a sale deed in her favour and executed the document

No.3064 of 2018, dated 23.03.2018.

6. A perusal of the schedule mentioned in the registered sale deed

document No.3064 of 2018, dated 23.03.2018 is as follows:

"SCHEDULE OF THE PROPERTY

All that existing tin shed roofed house with open plot in ward No.3, block No.5, with H.No.3-5-448/1 (Old), New No.3-5-208 admeasuring 134 Sq. Yards, situated at Gautam Buddha Veedhi, Kota Galli, Nizamabad, within the Municipal Corporation limits of Nizamabd."

AVRJ CRP No.2751 of 2019

A careful perusal of the schedule of property as mentioned in the

plaint and in the registered sale document No.3064 of 2018, dated

23.03.2018, it is found that it is not one and the same. The extent

mentioned in the plaint schedule is 100 square yards, whereas the

extent mentioned in the above sale deed is about 134 square yards.

Further, the cause of action shown by the plaintiff is when the

defendants claimed ownership over the suit property, vide legal notice

dated 27.09.2007, the plaintiff's husband has got issued legal notice

date 15.02.2006 to vacate the premises. Through the proposed

amendment of the plaint, the plaintiff intends to claim the right over

the suit schedule property by virtue of registered sale deed document

No.3064 of 2018, dated 23.03.2018 executed by Dara Laxmi in her

favour after passing the judgment and decree by the trial Court in OS

No.16 of 2019. Thus, the extent of the land mentioned in the schedule

of property and in the sale deed is quite distinct and separate. A fresh

cause of action is introduced by virtue of execution of sale deed

document No.3064 of 2018, dated 23.03.2018 subsequent to the

judgment and decree in OS No.16 of 2009 at the belated stage.

7. The learned counsel on behalf of the petitioner/appellant/

plaintiff seeks to submit that while considering the request for

amendment, the Court should not look into the merits of the

amendment, in fact the document dated 01.10.2003 is regularized.

The defendant is no other than the co-sister of the plaintiff, the parties

to the suit are interrelated. The very same lady has agreed to execute

AVRJ CRP No.2751 of 2019

the sale deed after dismissal of the original suit. The nature of the suit

will not be changed, such amendment is required to put an end to the

litigation in future and relied on the principles in the following

decisions:

1) Institute of Education, Ramachandrapuram v. Ramachandrapuramm Municipality and others1;

2) Puspa Dey and others v. Sukanta Dey and others2;

3) M.S. Nanambika v. V. Subramanyam3;

4) Orders in CRP (PD) No.4735 of 2013, dated 03.09.2019 of Madras High Court.

8. The Order-VI, Rule-17 of CPC deals with amendment of

pleadings, which reads as follows:

"The court may at any stage of the proceeding 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".

From the above said provision, it is clearly mentioned that no

application for amendment shall be allowed after the trial has

2014 (1) ALD 680

2019 (2) CCC 298

2019 (6) ALD 514

AVRJ CRP No.2751 of 2019

commenced unless and until the Court comes to the conclusion that in

spite of due diligence the party could not raise the matter before

commencement of trial.

9. It is this proviso which falls for consideration of the Hon'ble

Supreme Court of India in Salem Advocate Bar Association v. Union of

India4. In paragraph Nos.42 and 43, the Hon'ble Supreme Court has

held as under:

"42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.

43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the abvoe requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hestitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule."

AIR 2005 SC 3353

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10. In Vidyabai and others v. Padmalatha and others5 at paragraph

No.14, it is held by the Hon'ble Supreme Court of India, as under:

"14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.

However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

11. The Hon'ble Supreme Court in Salem Advocate Bar

Association's case (4 cited supra) upheld the validity of proviso to

Rule-17 of Order-VI CPC.

12. As per the proviso, it is to be established by the party that in

spite of "due diligence", the party could not have raised the matter

before the commencement of trial depending on the circumstances,

the Court is free to order such application. The words "due diligence"

have not been defined in the Code. According to Oxford Dictionary

(Edition 2006), the word "diligence" means careful and persistent

application or effort. "Diligent" means careful and steady in

application to one's work and duties, showing care and effort. As per

the Black's Law Dictionary (Eighth Edition), "diligence" means a

continual effort to accomplish something, care; caution; the attention

AIR 2009 SC 1433

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and care required from a person in a given situation. "Due diligence"

means the diligence reasonably expected from, and ordinarily

exercised by, a person who seeks to satisfy a legal requirement or to

discharge an obligation. It means, such diligence as a prudent man

would exercise in the conduct of his own affairs. Thus, it is clear that

unless the party takes prompt steps, mere action cannot be accepted in

filing a petition for amendment of pleadings after the commencement

of trial.

13. I have carefully perused the principles laid in the decisions

relied by the learned counsel for the petitioner. In view of the settled

legal position by the Hon'ble Supreme Court in the case of Salem

Advocate Bar Association's case (4 cited supra) and in Vidyabai's case

(5 cited supra) as discussed above and in the facts and circumstances

of the case, I am of the considered view that the principles laid in the

decisions relied by the learned counsel for the petitioner/appellant/

plaintiff are not helpful to the petitioner/appellant in any way.

14. Notably, in the proposed amendment the plaintiff is changing

the cause of action, introducing a new cause of action of subsequent

events after dismissal of the original suit, the extent of the land from

the schedule of property and that is mentioned the registered sale deed

executed subsequent to the decree is quite distinct and separate though

the parties appear to be interrelated and that as the sale deed executed

in favour of plaintiff in view of the promise made by vendor pursuant

AVRJ CRP No.2751 of 2019

to the agreement of sale in the year 2003, all such things cannot be

looked into at this belated stage.

15. Be it stated that the plaintiff was not at all diligent in

prosecuting the litigation failed to take prompt steps and such action

of obtaining the registered sale deed after disposal of the original suit

during pendency of appeal and making a request for amendment of

the plaint introducing para 4 (a) defeats the rights that are accrued in

favour of the defendants.

16. In such facts and circumstances of the case, as the original

claim of the plaintiff is based on Ex.A.1 sale deed dated 10.10.1991

followed by Ex.A.16-gift settlement dated 29.03.2005 and as those

two documents were not believed by the trial Court and dismissed the

suit, thereafter the plaintiff has obtained a registered sale deed

document No.3064 of 2018, dated 23.08.2018 from Dara Laxmi, as

mentioned above. Now, she intends to introduce a fresh cause of

action by incorporating para-4 (a) in the plaint during pendency of the

appeal after disposal of the original suit introducing a new cause of

action, additional extent of the land without assigning valid reasons

for not obtaining any sale deed right from 10.10.1991 i.e., from the

date of Ex.B.1 till 23.03.2018. In my considered view, the plaintiff is

not entitled for the proposed amendment at the belated stage after

disposal of the original suit, I find no reason to interfere with the order

of the first appellate Court, dismissing the application filed under

Order-VI, Rule-17 CPC.

AVRJ CRP No.2751 of 2019

17. In the result, the Civil Revision Petition is dismissed confirming

the impugned order dated 18.10.2019 in I.A. No.121 of 2019 in

A.S.No.19 of 2018 on the file of the learned VIII Additional District

Judge at Nizamabad. However, in the circumstances of the case, there

shall be no order as to costs. Miscellaneous applications, if any

pending in this revision petition shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 14.02.2022 Isn