Parsi Shashank vs T.Linga Reddy
2023 Latest Caselaw 694 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

        CIVIL REVISION PETITION No. 2172 of 2022

ORDER:

This Civil Revision Petition is filed against the Order of the

trial Court in I.A.No.1486 of 2021 in O.S.No.111 of 2021 dated

05.01.2022.

2. Plaintiffs in O.S.No.111 of 2021 filed an application in

I.A.No.1486 of 2021 for amendment of the pleadings of the

plaint. In fact, they filed suit for specific performance of

agreement of sale. One of the amendments is regarding the

typographical error in the date. It was mentioned as 10.04.2007

instead of 10.07.2007 and apart from that they also sought for

another amendment in the relief portion and also in the cause

of action, but the trial Court observed that they failed to

mention cause of action due to oversight and allowed the

amendment application. Aggrieved by the same, respondent in

the said petition preferred the present Civil Revision Petition.

3. The appellant mainly contended that initially a suit in

O.S.No.10 of 2009 was filed for recovery of Rs.24,54,521/- with

costs and future interest @ 36% basing on the agreement of sale

dated 04.07.2007 executed by him in favour of

petitioners/plaintiffs for purchasing the property in

Sy.No.3222/AA measuring an extent of Acs.2 - 05 gts situated

at Nizamabad and also filed I.A.No.2176 of 2009 for adding the

relief to cancel the sale agreement and the same was allowed by

the trial Court. The said suit was filed against three persons on

the ground that they offered to sell Ac.0 - 35 gts of land @

20,51,000/- per acre in Sy.No.3222/AA basing on the

agreement of sale dated 04.07.2007 and the Judgment and

decree was granted on 04.04.2014. Aggrieved by the same,

defendant in the suit filed A.S.No.449 of 2014, in which interim

stay was granted on 14.10.2014 with a condition to deposit half

of the decreetal amount within a period of six weeks. When he

could not comply the said Order, plaintiffs have filed E.P.No.38

of 2014 for execution of the decree dated 04.04.2014, as such

he raised funds and complied the decree by depositing the total

decreetal amount on 04.11.2020, and thus the appeal was

dismissed as withdrawn by Order dated 26.03.2021.

4. A claim petition was filed in E.A.No.5 of 2017 in

E.P.No.38 of 2014 and also filed E.A.No.52 of 2019 for

commission to demarcate the land/property, but it was

dismissed on 19.06.2019. Against which they preferred

C.R.P.No.1266 & 1267 of 2021 before this Court and the same

were also dismissed for non-prosecution by Order dated

23.04.2021. Plaintiffs falsely claim that possession was handed

over to him basing on the agreement of sale, but they never

pleaded the said fact in the earlier proceedings. Instead of

withdrawing the amount, they filed another suit for specific

performance of the agreement of sale dated 04.07.2007 and in

the said suit they filed I.A for amendment of the pleadings and

the same was allowed by the trial Court without considering his

contentions. They filed O.S.No.10 of 2009 selectively for the

purpose of cancellation of agreement of sale and for recovery of

amount in pursuance of the agreement of sale dated 04.07.2007

without taking a plea of specific performance of contract.

Therefore, the observation of the trial Court that there is no

prejudice would be caused to the defendant is not proper and

the present suit itself is hit by Order 2 rule 2 of C.P.C.

5. The main pleadings in the earlier suit and the present suit

are totally inconsistent. They never pleaded in O.S.No.10 of

2009 that they are in possession of the suit schedule property,

but now they are trying to introduce new theory of possession

by way of proposed amendment and the said handing over the

possession was not reflected in the said agreement of sale. They

have not stated regarding possession either in O.S.No.10 of

2009 or in the amendment plaint or in E.P.No.38 of 2014 and

filed the present suit for specific performance with a malafide

intention. The trial Court without appreciating all the facts

allowed the amendment application and it is liable to be set

aside.

6. Plaintiffs stated that on 11.03.2008 defendant interfered

with their possession, as such they are in continuous

possession of the suit schedule property since 10.07.2007.

7. Heard arguments of both sides and perused the entire

record.

8. The revision petitioner relied upon the citation reported in

2014(1) ALT (SC) 25 and argued that initially plaintiffs filed

suit only for recovery of amount and for cancellation of the

agreement of sale by giving up relief of specific performance, as

such the suit filed by them at later point of time for specific

performance of agreement of sale is hit by Order 2 rule 2 CPC.

As per the Order 2 rule 2 CPC, unity of all claims based on the

same cause of action should be taken in one suit and it does not

contemplate unity of distinct and separate cause of action. If the

plaintiff is entitled to seek reliefs against the defendant in respect

of the same cause of action, the plaintiff cannot split up the claim

so as to omit one part to the claim and sue for the other. If the

cause of action is same, the plaintiff has to place all his claims

before the Court in one suit, as Order 2 rule 2 CPC is based on

the cardinal principle that defendant should not be vexed twice

for the same cause.

9. The learned Counsel for the revision petitioner also relied

upon the decision of the Hon'ble Supreme Court in the case of

Revajeetu Builders and Developers Vs. Narayanaswamy

and Sons and others1, in which guidelines while dealing with

applications for amendments were given as follows:

"i) Whether the amendment sought is imperative for proper and effective adjudication of the case.

ii) Whether the application for amendment is bonafide or malafide.

iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.

iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation.

v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case.

vi) as a general rule, the Court should decline amendments if a fresh suit on the amended claim would be barred by limitation on the date of application."

(2009) 10 SCC 84

10. Now, it is for this Court to see that the application for

amendment is a bonafide or not.

11. In this case the revision petitioner contended that

initially suit was filed for recovery of amount and the

amount was also deposited, as such another suit filed by

them for specific performance of agreement of sale is not

maintainable and is hit by Order 2 rule 2 C.P.C, but in the

said suit they filed I.A for amendment and the amendment

sought by them at later point of time is not a bonafide and it

causes prejudice to him and effects his rights which are

already accrued to him. Therefore, this Court finds that the

Order of the trial Court is erroneous and is liable to be set

aside.

In the result, the Civil Revision Petition is allowed by

setting aside the Order of the trial Court in I.A.No.1486 of

2021 in O.S.No.111 of 2021 dated 05.01.2022.

Miscellaneous petitions pending, if any, shall stand

closed.

_________________________ JUSTICE P.SREE SUDHA

DATED: 10.02.2023 tri

THE HONOURABLE SMT. JUSTICE P.SREE SUDHA

CIVIL REVISION PETITION No. 2172 of 2022

DATED: 10.02.2023

TRI