T. Raju Rajesh vs Gouni Ramulu
2022 Latest Caselaw 759 Tel

     HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

         CIVIL REVISION PETITION No.1058 OF 2019

ORDER:

This Civil Revision Petition is filed under Article 227 of the

Constitution of India assailing the orders dated 25.01.2019

in I.A.No.869 of 2018 in O.S.No.155 of 2001 on the file of the

learned II Additional Senior Civil Judge, Ranga Reddy District

at L.B. Nagar.

2. This application in I.A.No.869 of 2018 was filed by the

plaintiff No.3 under Order VI Rule 17 of the Code of Civil

Procedure (for short, 'C.P.C.') with a prayer to amend the plaint

by introducing Para 5(A) and Para 5(B).

3. Heard learned counsel for the petitioner. Though notice is

served on respondent No.1, he is called absent, no

representation. Respondent Nos.2 and 3 are not necessary

parties to this Civil Revision Petition.

4. For the sake of convenience, the parties are referred to as

arrayed in the Original Suit.

5. Originally, plaintiff Nos.1 and 2 have filed O.S.No.155 of

2001 for declaration of title and perpetual injunction in respect

of suit schedule land admeasuring Acs.2.30 guntas in Survey

No.338 situated at Turka Yamzal Village, Hayathnagar Mandal,

Ranga Reddy District. During the pendency of the suit, plaintiff

No.3 is impleaded as per the orders in I.A.No.1215 of 2017,

dated 10.10.2018. The said orders attained finality. Plaintiff

No.3 is a subsequent purchaser from plaintiff No.1.

6. Plaintiff No.3 has filed this I.A.No.869 of 2018 under

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

plaintiffs have executed Agreement of Sale-cum-General Power

of Attorney dated 10.01.2003 with Document No.343 of 2003 in

favour of B. Krishna Reddy in respect of suit schedule

'A' property, who in turn sold the suit schedule 'A' property to

plaintiff No.3 as per the sale deed vide document No.6033 of

2003 dated 25.04.2003 and that from the date of purchase,

plaintiff No.3 is in possession and enjoyment of schedule 'A'

property. The Mandal Revenue Officer, Hayathnagar, also

issued pattadar passbook in favour of plaintiff No.3 and he is in

exclusive possession and enjoyment of the same. Subsequently,

during the pendency of the original suit, he was impleaded as

plaintiff No.3 being the purchaser of suit schedule 'A' property.

Accordingly, the proposed amendment is very much essential to

resolve the issue amicably between the parties.

7. This application filed by plaintiff No.3 was resisted by the

defendant stating that plaintiff No.3 is impleaded only as per the

orders in I.A.No.1215 of 2017, dated 10.10.2018, if the

proposed amendments, as Para 5(A) and Para 5(B) are

introduced, it would change the nature of the suit and it is not

permissible. The transaction between plaintiff No.3 and other

plaintiffs is subject to the result of the suit. In fact, the plaintiff

No.3 has no locus standi to challenge the pleadings in the

present suit in the absence of plaintiff Nos.1 and 2, who

instituted the suit. The alleged mutation proceedings before the

Mandal Revenue Officer, Hayathnagar, also took place during

the pendency of the suit. The entire documents that are

referred by plaintiff No.3 are invalid documents obtained during

the pendency of the suit. Therefore, plaintiff No.3 is not entitled

for the proposed amendment.

8. The Court below through the docket order dated

25.01.2019, after considering the rival contentions, dismissed

the application with an observation that the plaintiff No.3 is a

subsequent purchaser, entered into the shoe of the plaintiff as

his rights to the property will be affected by the decree that may

be passed in the suit. Merely because he was impleaded,

he cannot ask amendment of the original plaint introducing the

Para 5(A) and Para 5(B) and subsequent events in the suit.

Accordingly, the Court below dismissed the said application.

9. Learned counsel for plaintiff No.3 seeks to submit that

after purchasing the suit schedule 'A' property, plaintiff No.3 is

in exclusive possession and mutation was also effected in the

revenue records, he has constructed 12 mulgies in schedule 'A'

property, proposed amendment is very much required for proper

adjudication of the case, explaining the events that took place

subsequent to the filing of the suit and that the plaintiff Nos.1

and 2 are not prosecuting the suit, the defendant cannot resist

plaintiff No.3 from filing this application seeking amendment of

the plaint introducing Para 5(A) and Para 5(B).

10. It is a fact that plaintiff Nos.1 and 2 have filed Original

Suit in respect of suit schedule property of Acs.2.30 guntas of

which schedule 'A' property is Acs.2.08 guntas, whereas

schedule 'B' property is Ac.0.22 guntas covered by the land in

Survey N.338 of Turka Yamzal Village, Hayathnagar Mandal,

Ranga Reddy District. It is pertinent to note that plaintiff No.3

is only claiming his right title or possession in respect of

schedule 'A' property and he is not claiming any manner of right

title or interest in respect of schedule 'B' property.

11. Be it stated that the suit is filed by plaintiff Nos.1 and 2

and they are not parties to this application. Plaintiff No.3 alone

has filed this application seeking amendment of the original

plaint filed by plaintiff Nos.1 and 2 in respect of schedule 'A' and

schedule 'B' properties. Whereas plaintiff No.3 is impleaded

subsequently in the year 2017 alleging that he has purchased

schedule 'A' property only. Plaintiff Nos.1 and 2 being the

dominus litis in respect of suit filed by them, did not join in this

application and the present application is only filed in respect of

schedule 'A' property leaving schedule 'B' property.

12. Learned counsel for the petitioner relied on the principles

laid by this Court in Manne Jhansilaxmi and another Vs.

Apasani Atchuta Ramamohana Rao and others1. On a

careful perusal of the above judgment, I am of the view that the

principles laid in the above decision are not applicable to the

facts of the present case, as in that case defendant No.3 had

transposed himself as a plaintiff and thereafter sought for

amendment of the plaint, whereas in the present case, plaintiff

No.3, being the subsequent purchaser during the pendency of

the suit, entered into the shoe of the plaintiffs only to protect

his rights in respect of schedule 'A' property. Merely because

2015 (4) ALD 729

plaintiff No.3 is impleaded during the pendency of the suit as a

subsequent purchaser, he cannot seek to amend the original

plaint filed by plaintiff Nos.1 and 2 introducing the new facts

which are subsequent to the filing of the suit. Thus, plaintiff

No.3 alone cannot request to amend the plaint originally filed by

plaintiff Nos.1 and 2. A party to the plaint can only request for

amendment of his own pleadings, whereas plaintiff No.3 was not

a party to the pleadings in the plaint, but he was subsequently

impleaded now making an attempt to amend the pleadings set

up by plaintiff Nos.1 and 2.

13. Admittedly, the Original Suit is filed in the year 2001 and

trial commenced long back. Therefore, proviso under Order VI

Rule 17 C.P.C. comes into operation. As per 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 the trial. Thus,

ordinarily after the trial of the case has commenced, no

application for amendment of pleadings be allowed unless the

requirement as envisaged in proviso to Rule 17 of Order VI of

C.P.C. is satisfied.

14. The Hon'ble Supreme Court in Vidyabai and others Vs.

Padmalatha and others2 in paragraph Nos.14 to 16 held

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.

15. In Salem Advocate Bar Association Vs. Union of India (AIR 2005 SC 3353), this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question.

16. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned Trial Judge exercise its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it."

15. That being the legal position, the facts of the present case

as indicated below would demonstrate, how plaintiff No.3 is not

AIR (2009) SC 1433

entitled for the proposed amendment. Originally, plaintiff Nos.1

and 2 have filed the suit in the year 2001 for declaration of title

and perpetual injunction in respect of schedule 'A' and schedule

'B' properties. It appears, during the pendency of the suit,

plaintiff No.3 has purchased schedule 'A' property and made an

application before the trial Court and he was impleaded as

plaintiff No.3 as per the orders in I.A.No.1215 of 2017. Plaintiff

No.3 without adding plaintiff Nos.1 and 2, on his own sought for

amendment of the pleadings in the plaint filed by plaintiff Nos.1

and 2 at belated stage after commencement of trial, that too in

respect of only schedule 'A' property. Therefore, the rider

incorporated under proviso to Rule 17 of Order VI C.P.C., comes

into operation, since plaintiff No.3 allegedly purchased the said

property as per his own pleadings on 24.05.2003 through the

sale deed vide document No.6033 of 2003 and obtained entries

in the revenue records, but remained silent till the year 2018

and filed the present application in the original suit relating to

the year 2001, after the commencement of the trial. Therefore,

viewed from any angle, I do not find any irregularity in the order

impugned, it is sustainable and plaintiff No.3 is not entitled for

the proposed amendment.

16. In the result, the Civil Revision Petition is dismissed

confirming the order impugned. However, considering the fact

that the Original Suit is filed in the year 2001 and the

proceedings are stalled by one way or the other, the trial Court

shall expedite the disposal of the Original Suit and shall make

every endeavour to dispose of the Original Suit within six

months from the date of receipt of the copy of the order. The

parties to the suit shall cooperate with the trial Court for

expeditious disposal of the suit, as directed. Miscellaneous

Petitions, if any, pending in this Civil Revision Petition shall

stand closed.

__________________________________ A. VENKATESHWARA REDDY, J

Date:18.02.2022 KH

HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

CIVIL REVISION PETITION No.1058 OF 2019

Date:18.02.2022

KH