HON'BLE SRI JUSTICE A.SANTHOSH REDDY
C.R.P.No.448 of 2020
ORDER:
This civil revision petition under Article 227 of the
Constitution of India is directed against the order,
dated 22.02.2019, passed in I.A.No.74 of 2019 in O.S.No.98 of
2013 by Principal Junior Civil Judge, Kamareddy.
2. The petitioner-plaintiff filed suit in O.S.No.98 of 2013 for
perpetual Injunction against the respondents-defendants. While so,
the petitioner filed I.A.No.74 of 2019 under Order VI Rule 17 of
the Code of Civil Procedure, 1908 (for short "C.P.C.") to amend
the plaint for suit claim by inserting "Declaration of title, recovery
of possession and mandatory injunction. The respondents resisted
the application. On consideration of the material on record, the trial
Court dismissed the application vide order dated 22.02.2019 by
mainly taking a view that the proposed amendment would change
the nature of the suit and the relief would be different from that
was claimed in the suit. Aggrieved by the same, the present
revision is preferred.
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3. Learned counsel for the petitioner submits that the suit filed
by the petitioner for perpetual Injunction was dismissed for default
on 20.04.2015 and subsequently, the same was restored on
09.01.2018. Taking advantage of dismissal of the suit, the
respondents illegally occupied the suit schedule property in the last
week of March, 2016. Therefore, the present application was filed
to amend the plaint seeking the relief of title and recovery of
possession and mandatory injunction and to make suitable
amendments at relevant paras. In support of his contentions, he
has placed reliance on the decisions of P.Shailaja Kumar @
Shaila Kumari, Hyderabad v.Vasantha Malavika1, Liquidator
Maratha Market People's Co-op Bank Ltd (in liquidation) v.
Jeejaee Estate2, Mohinder Kumar Mehra v. Roop Rani Mehr3
and Vidyabai v. Padmalatha4.
4. Per contra, learned counsel for the respondents supported
the impugned order and submits that the petitioner filed the present
application at a belated stage and the proposed amendment would
1 2019 SCC Online TS 3535 2 2019 SCC Online Bom 32 3 (2018) 2 Supreme Court Cases 132
4 (2009 ) 2 Supreme Court Cases 409 3
change the nature of the suit. As such, the trial Court has rightly
dismissed the application. He has placed reliance on the decision
of Ajendraprasadji N.Pande v. Swami Keshavprakeshdasji5.
5. I have considered the submissions of learned counsel for
the petitioner and the learned counsel for respondents. Perused the
record.
6. A perusal of the material on record would disclose that the
petitioner filed suit for perpetual Injunction in the year 2013
against the respondents and the same was dismissed for default on
20.04.2015. On being application filed by the petitioner in
I.A.No.68 of 2015, the suit was restored on 09.01.2018. During
the pendency of the said application, the respondents illegally
occupied and constructed open shed in the suit schedule property.
The petitioner went to Saudi Arabia on his employment and
returned to India on 14.03.108 and he noticed that the respondents
are in illegal occupation of the suit schedule property. Therefore,
the present application was filed for amendment to the pleadings
5 AIR 2007 Supreme Court 806 4
seeking declaration of the title and recovery of possession and
mandatory injunction.
7. The respondents filed written-statement and the issues were
settled. The suit was coming-up for trial, when the impugned
application was filed.
8. Order VI Rule 17 of C.P.C. as it now exists is as follows:-
17. Amendment of Pleadings.- The Court may at any stage of the proceedings 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 par- ties:
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.
9. In Mohinder Kumar Mehra's case (3 supra), the Apex Court
at para No.14 and 17 held as under:
14. By Amendment Act 46 of 1999 with a view to shortage litigation and speed of the trial of the civil suits, Rule 17 of Order VI was omitted, which provision was restored by Amendment Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to a considerable extent. The object of newly inserted Rule 17 is to control filing of application for amending the pleading subsequent to commencement of trial. Not permitting amendment subsequent to commencement of the trial is with the object that when evidence is led on pleadings in a case, no new case be allowed to set up by amendments. The proviso, however, contains an exception by reserving right of the Court to grant amendment even after commencement of the trial, when it is shown that in 5
spite of diligence, the said pleas could not be taken earlier. The object for adding proviso is to curtail delay and expedite adjudication of the cases.
17. Although Order VI Rule 17 permits amendment in the pleadings "at any stage of the proceedings", but a limitation has been engrafted by means of Proviso to the fact that no application for amendment shall be allowed after the trial is commenced. Reserving the Court's jurisdiction to order for permitting the party to amend pleading on being satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of trial. In a suit when trial commences? Order XVIII of the C.P.C. deal with "Hearing of the Suit and Examination of Witnesses". Issues are framed under Order XIV. At the first hearing of the suit, the Court after reading the plaint and written statement and after examination under Rule 1 of Order XIV is to frame issues. Order XV deals with "Disposal of the Suit at the first hearing", when it appears that the parties are not in issue of any question of law or a fact. After issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences.
9. In Ajendraprasadji N.Pande's case (5 supra), the Apex
Court at para No.57 held as under:
57. The above averment, in our opinion, does not satisfy the requirement of Order VI Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in respect of due diligence. As held by this Court in Kailash vs. Nankhu & Ors. (2005) 4 SCC 480), the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.
10. In Adusumilli Venkateswar Rao v. Chalasani Hymavathi6,
this Court observed that the plaintiff in a suit for permanent
injunction is entitled to seek amendment for declaration and 6 AIR 1990 AP 161 6
recovery of possession and such amendment does not alter the
nature of the suit.
12. It is not in dispute that the trial in the present suit is not yet
commenced. Therefore, the proviso to Order VI Rule 17 of C.P.C.
would not come in the way of the Court to consider the application
for amendment made by the petitioner, even though it was filed
belatedly. Therefore, the observation of the Court below as to why
the petitioner was silent for about three years is not proper,
as the application for proposed amendment of pleadings was filed,
subsequent to the restoration of the suit as stated supra. Moreover,
the purpose for permitting the amendment of pleadings is to avoid
multiplicity of the proceedings. The trial Court has ignored the
said fundamental principle in considering the application for
amendment. The view took by the trial Court that the proposed
amendment would alter the complete nature of the suit also appears
to be in correct, in view of the judgment of Apex Court in
Sampath Kumar v. Ayyakannu7. The Apex Court in the said
judgment held that when the plaintiff is debarred from instituting a
new suit seeking relief of declaration of title and recovery of 7 (1) (2002) 6 SCC 424 7
possession on the same basic facts as are pleaded in the plaint
seeking relief of issuance of permanent prohibitory injunction and
which is pending, in order to avoid multiplicity of suits, it would
be a sound exercise of discretion to permit the relief of declaration
of title and recovery of possession being sought for in such a suit.
13. Since the respondents raised the cloud about the title of the
petitioner in view of his dispossession from the suit schedule
property, it would be appropriate that the petitioner can not be
prevented from seeking, by way of amendment, the relief of
declaration of title and for recovery of possession also. The
petitioner himself admitted that he has been dispossessed from the
suit schedule property by the respondents. As such, he is seeking
amendment seeking the reliefs as stated supra in place of suit for
the perpetual Injunction as sought earlier. It does not mean that
there is no due diligence on the part of the petitioner in seeking the
amendment. In the facts and circumstances of the case, permitting
the petitioner for amendment of pleadings as sought, would meet
the ends of justice.
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14. For the foregoing reasons, I am of the opinion that the
Court below has committed error of jurisdiction in refusing the
permit the petitioner to amend the plaint as sought by him.
15. In the result, the Civil Revision Petition is allowed. The
impugned order is set aside. I.A.No.74 of 2019 stands allowed.
No costs. Miscellaneous applications, if any, pending shall stand
closed.
______________________ A.SANTHOSH REDDY, J 03.01.2023
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