Smt. Nomula Sarojana vs Smt. Jama Rakhee
2022 Latest Caselaw 1492 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

               CRP Nos.139 and 204 of 2021

COMMON ORDER:

1.

C.R.P.No.139 of 2021 is filed under Article 227 of the

Constitution of India assailing the order dated 14.02.2020

in IA No.413 f 2019 in OS No.245 of 2016 on the file of the

III Senior Civil Judge, Secunderabad. The said IA was filed

under Order-I Rule-10 of the Civil Procedure Code, 1908

(for short 'CPC') filed by the petitioner/plaintiff. Whereas,

CRP No.204 of 2021 is filed under Article 227 of the

Constitution of India assailing the order dated 14.02.2020

in IA No.412 of 2019 in OS No.245 of 2016 on the file of

the III Senior Civil Judge, Secunderabad. The said IA was

filed under Order-VI Rule-17 of CPC. Since both the CRPs

are arising out of same OS No.245 of 2016, it is proposed

to dispose of the same, through this common order.

2. The plaintiff has filed IA No.413 of 2019 under Order-I

Rule-10 of CPC to implead the Tahsildar, Marredpally,

Secunderabad as defendant No.2 in the original suit in OS

No.245 of 2016. The learned III Senior Civil Judge, City

AVRJ CRP Nos.139 & 204 of 2021

Civil Court, Hyderabad, has dismissed the said application.

Feeling aggrieved by the said orders, the plaintiff has filed

CRP No.139 of 2021.

3. The plaintiff has filed IA No.412 of 2019 in OS No.245

of 2016 under Order-VI Rule-17 CPC to amend para-IX (a)

of plaint seeking for cancellation of registered conveyance

deed document No.324 of 2017, dated 08.02.2017 stating

that during pendency of the suit, on 08.02.2017 the said

conveyance deed was executed and it is creating cloud on

her title and the same needs to be cancelled. The learned

III Senior Civil Judge, City Civil Court, Secunderabad,

through the order impugned, dismissed the said

application. Feeling aggrieved by the said orders, the

plaintiff has filed CRP No.204 of 2021.

4. Heard the learned counsel on both sides. Perused the

material available on record. The detailed submissions

have been made by both the parties, which are more or less

on pleaded lines. Therefore, it may not be necessary for

this Court to refer in detail such submissions. However,

AVRJ CRP Nos.139 & 204 of 2021

the submissions so made have received due consideration

of the Court.

5. For the sake of convenience, the parties are

hereinafter referred to as plaintiff and defendant as arrayed

in the original suit.

6. The plaintiff has filed the original suit for declaration

of title and recovery of possession of suit schedule

property. The written statement of defendant is also filed.

The issues are settled. At that stage, the present

application in IA No.413 of 2019 was filed under Order-I

Rule-10 CPC to implead the Tahsildar, Marredpally,

Secunderabad as defendant No.2. This application was

dismissed by the Court below with an observation that the

suit is filed for declaration of title and recovery of

possession in respect of suit schedule house bearing

No.10-4-A/447/1, Addagutta, East Marredpally,

Secunderabad admeasuring 47.9 square yards, out of 96

square yards by virtue of assigned patta issued by the

Tahsildar, Marredpally on 25.05.2015. As such, she has

no title and approached the Court to declare her title which

AVRJ CRP Nos.139 & 204 of 2021

is in dispute and she cannot claim any right to cancel the

registered document in dispute.

7. It appears, during pendency of the said suit, the

Tahsildar, Marredpally has executed a conveyance deed

document No.324 of 2017, dated 08.02.2017 in favour of

the defendant conveying an extent of 47.8 square yards in

Survey No.74 with premises bearing No.10-4-A/447/1,

Addagutta, East Marredpally, hence, a request was made

for adding Tahsildar as necessary party to the suit.

8. Order-I Rule-10 of CPC enables the Court to add any

person as a party at any stage of the proceedings if the

person whose presence before the Court is felt necessary in

order to enable the Court to effectively and completely

adjudicate upon and settle all the questions involved in the

suit. Avoidance of multiplicity of proceedings is also one of

the objects of said provision. However, the object of this

provision is not to change the scope and character of suit

by adding new parties. The intendment and object of the

provision is only to invest the Court with ample power and

jurisdiction to strike out name of any party improperly

AVRJ CRP Nos.139 & 204 of 2021

joined or to add any person who ought to have been joined

or whose presence is necessary to enable the Court to

effectively adjudicate upon and settle all the questions

involved in the suit.

9. Reverting back to the facts of the case on hand, the

plaintiff has filed original suit on 12.09.2016 for

declaration of title and recovery of possession. During

pendency of the said suit, the Tahsildar, Marredpally

allegedly executed conveyance deed in respect of land

admeasuring 47.8 square yards in Survey No.74 with

premises bearing No.10-4-A/447/1, Addagutta, East

Marredpally, Secunderabad, vide document No.324, dated

08.02.2017 in favour of the defendant, whereby the

plaintiff has sought to implead the Tahsildar, East

Marredpally as defendant No.2 in the original suit for

effectively and completely adjudicating the matter in

dispute.

10. The contention of the plaintiff is that by virtue of the

said conveyance deed document No.324 of 2017 dated

08.02.2017 executed by the Tahsildar, East Marredpally,

AVRJ CRP Nos.139 & 204 of 2021

the defendant started claiming title adverse to that of the

plaintiff and the said document is executed without any

basis during pendency of the original suit, hence, Tahsildar

is a necessary party to be impleaded as defendant No.2 in

the original suit.

11. Having regard to the provisions of Order-I, Rule-10 of

CPC in the given facts and circumstances of the case, it

cannot be said that the application filed by the plaintiff for

impleadment of the Tahsildar, who executed conveyance

deed in respect of disputed property in favour of the

defendant during pendency of the suit, is misconceived or

not maintainable. The plaintiff is directly and substantially

concerned with and effected by the conveyance deed

executed by the Tahsildar, Marredpally. Accordingly, the

plaintiff is entitled to implead the Tahsildar, Marredpally as

one of the defendants in a suit for declaration of title and

recovery of possession. Therefore, I find a jurisdictional

error committed by the Court below in dismissing the

application filed under Order-I Rule-10 CPC to implead the

Tahsildar, Marredpally, Secunderabad as defendant No.2

AVRJ CRP Nos.139 & 204 of 2021

in the original suit in OS No.245 of 2016. Accordingly, the

order impugned is liable to be set aside.

12. CRP No.204 of 2021 is filed by the plaintiff assailing

the order dated 14.02.2020 in IA No.412 of 2019 in OS

No.245 of 2016 wherein the application filed by the plaintiff

under Order-VI Rule-17 of CPC was dismissed by the Court

below. The plaintiff has sought amendment of the

pleadings in the plaint by introducing the subsequent

events alleging that during pendency of the original suit,

the Tahsildar, East Marredpally has executed a conveyance

deed document No.224 of 2017 on 08.02.2017 in favour of

the defendant and by virtue of the said conveyance deed,

the defendant started making rival claim, hence, the

subsequent events during pendency of the suit need to be

incorporated in the pleadings of the plaint. The trial Court

has dismissed the said application.

13. Feeling aggrieved by the same, CRP No.204 of 2021 is

filed alleging that the Court below has failed to observe that

pending disposal of the suit, the Tahsildar has executed a

conveyance deed for the part of the land in respect of which

AVRJ CRP Nos.139 & 204 of 2021

the Tahsildar has issued assignment patta under

possession of the plaintiff, vide Tahsildar proceedings

No.BPLHYD150123002780, dated 28.05.2015 without

verifying the record, without inspecting the suit schedule

property and without issuing notice to the plaintiff, who is

effected party.

14. Order-VI Rule-17 of CPC deals with amendment of

pleadings. The Court may at any stage of the proceedings

allow either party to alter or amend the pleadings in such

manner and on such terms as may be just and necessary

for the purpose of determining the real question in

controversy between the parties. Provided no such

application for amendment shall be allowed after the trial

is 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.

15. In Vidyabai and others v. Padmalatha and others1

the Hon'ble Supreme Court of India has discussed the

legislative intent behind making the provision of Rule 17 of

AIR 2009 SC 1433

AVRJ CRP Nos.139 & 204 of 2021

Order 6 of CPC. At para-7 of the said judgment, it was

observed that the provisions of Order-VI Rule-17 of CPC

are mandatory in nature. The Court's jurisdiction to allow

an application under Order-VI Rule-17 of CPC is taken

away unless the condition precedent therefor is satisfied

i.e., the Court must come to a conclusion that in spite of

due diligence, the parties could not have raised the matter

before the commencement of trial.

16. Thus, the object of Rule-17 of CPC is to minimise the

litigation and to minimise the delay to avoid multiplicity of

suits. Therefore, Courts while determining the applications

filed under Order-VI Rule-17 of CPC considered such

applications which are filed at the earliest stage before

commencement of the trial and as and when the parties

have exercised due diligence.

17. In Pandit Malhari Mahale v. Monika Pandi Mahale2,

the Supreme Court has held that an application for

amendment of plaint can be allowed by a Court even after

the trial has begun only on the ground that such additional

(2020) 11 SCC 54

AVRJ CRP Nos.139 & 204 of 2021

plea could not have been raised by the plaintiff before

commencement of the trial and that the Court is satisfied

that such an amendment is necessary to decide the real

dispute between the parties.

18. In N.C. Bansal v. Uttar Pradesh Financial

Corporation and another3, the Supreme Court while

summarizing the principles for consideration in respect of

application under Order-VI Rule-17 CPC, held that i) when

the suit is still at the initial stage i.e., when the trial has

not yet begun; ii) where the proposed amendment sought

in the plaint does not change the nature of the cause of

action; and iii) where applications are not filed at belated

stage; under these circumstances Court should be liberal

in allowing the proposed amendments.

19. Reverting back to the facts of the present case, the

application filed by the plaintiff under Order-I Rule-10 CPC

vide IA No.413 of 2019 to implead the Tahsildar,

Marredpally as defendant No.2 in the original suit.

Undisputedly, during pendency of the suit, the Tahsildar,

(2018) 2 SCC 347

AVRJ CRP Nos.139 & 204 of 2021

Marredpally has executed a conveyance deed as indicated

above in favour of the defendant in respect of part of the

property for which a patta certificate is issued to the

plaintiff and immediately after knowing the execution of

conveyance deed by the Tahsildar, Marredpally in favour of

the defendant. The plaintiff has filed the present

application in IA No.412 of 2019 for amendment of the

pleadings in the plaint. This Court as indicated in para-11

supra allowed the application filed in IA No.413 of 2019,

impleading the Tahsildar as defendant No.2. Therefore,

when the facts of the case on hand are tested on the

touchstone of the principles laid in the above decisions, the

answer is in the positive, the plaintiff is entitled for the

proposed amendments introducing the plea for cancellation

of the said conveyance deed executed by the Tahsildar,

Marredpally in favour of the defendant No.1 during

pendency of the original suit.

20. In the facts and circumstances of the case, as

discussed above, I find a jurisdictional error committed by

the Court below in dismissing the application filed under

AVRJ CRP Nos.139 & 204 of 2021

Order-VI Rule-17 CPC for amendment of the pleadings in

the plaint by incorporating the subsequent events of

execution of conveyance deed by the Tahsildar,

Marredpally in favour of defendant No.1 during pendency

of the suit and the order impugned is liable to be set aside.

21. In the result, CRP Nos.139 and 204 of 2021 are

allowed. The orders impugned dated 14.02.2020 in IA

Nos.413 and 412 of 2019 in OS No.245 of 2016

respectively on the file of the III Senior Civil Judge,

Secunderabad, are hereby set aside and the said IA

Nos.413 and 412 of 2019 are allowed. Consequently, the

plaintiff is permitted to amend the pleadings in the plaint

as proposed and also to implead the Tahsildar, Marredpally

as defendant No.2 in the original suit. However, there shall

be no order as to costs.

As a sequel, interlocutory applications, if any

pending, shall stand closed.

_________________________________ A. VENKATESHWARA REDDY, J.

Date: 25.03.2022 Isn