Telangana High Court

Mothkupally Narsimhulu vs Adimalla Susheela on 14 March, 2023

Bench: P.Madhavi Devi

     THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                           C.R.P.No. 502 of 2023

ORDER:

This Civil Revision Petition is filed against the order of the

Principal Senior Civil Judge, Bhongir, dated 28.12.2022 in

I.A.No.3 of 2022 in O.S.No.53 of 2006 in allowing the

amendment of prayer.

2. Brief facts leading to the filing of the present Civil

Revision Petition are that the plaintiff had filed O.S.No.53 of

2006 for the relief of:

(a) declaration of title in respect of the suit scheduled property;

(b) declaration that the deed of revocation of gift settlement dated 09.12.2005 and registered as document No.6262 of 2005 revoking the gift settlement deed dated 02.04.2004 wherein the document No.4868 of 2004 as null and void;

(c) to grant permanent injunction restraining the defendant No.1 therein, his agents, representatives and other persons claiming through him from interfering with the peaceful possession of the plaintiff and to grant such other relief or other reliefs.

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3. The trial of the suit has commenced and is at the stage of

final arguments and at that stage, the petitioner filed I.A.No.3 of

2022 stating that amendment of prayer is to direct the

defendants to restore the possession of the suit land to the

plaintiff immediately. It was submitted that in the month of

July, 2020, the defendants taking advantage of fabricated

Revenue entries, came along with his henchmen and unsocial

elements and dispossessed her from the suit land. The

petitioner/defendant had objected to the I.A. and had raised

objections about the maintainability of the I.A. itself on the

ground that an application for amendment cannot be filed post

commencement of trial and that the I.A. is barred by limitation.

4. The learned Senior Civil Judge, however, allowed the

same by taking into the consideration the contention of the

petitioner that she was dispossessed in the month of July, 2020

i.e., after the commencement of trial and therefore, the proviso

to Order 6 Rule 17 would be applicable to the case of the

petitioner in I.A.No.3 of 2022. He further observed that the

amendment will not change the nature of the suit in any

manner and also curtails the multiplicity of proceedings in

PMD,J CRP.No.502 of 2023

future. Challenging the same, the present Civil Revision Petition

is filed.

5. Learned counsel for the petitioner submitted that the suit

was filed in the year 2006, whereas the amendment of prayer is

being sought in the year 2022 i.e., after the lapse of 16 years

and therefore, it is barred by limitation. He further submitted

that the petitioner has not filed any proof of her dispossession

in the month of July, 2020 and even if the said fact were to be

true, the petitioner has filed the I.A.No.3 of 2022 in the year

2020 itself and it is not filed along with any evidence in support

of the same and therefore, the trial Court ought not to have

entertained the application. In support of his above contentions,

he placed reliance upon the judgment of the Hon'ble Supreme

Court in the case of Pandit Malhari Mahale Vs. Monika Pandit

Mahale and Others1 and the case of Vidyabai and Others Vs.

Padmalatha and Others2.

6. Learned counsel for the respondents, however, relied

upon the averments made in the I.A. and submitted that it was

only in the year 2020 that she was dispossessed and therefore,

1 (2020) 11 SCC 549 2 AIR (2009) SC 1433

PMD,J CRP.No.502 of 2023

after taking the legal advice, the petitioner has filed the present

I.A. in the year 2022. He further submitted that the judgment of

Hon'ble Supreme Court in the case of LIC Vs. Sanjeev Builders

Private Limited and Another3, has gone into all the provisions

and has given guidelines as to when and how the amendment of

the prayer can be allowed under C.P.C. Therefore, he relied on

the said judgment in support of the order of the learned Senior

Civil Judge.

7. Having regard to the rival contentions and the material on

record, this Court finds that the suit was filed in the year 2006

and it is at the verge of closure. Therefore, the proviso to Order

VI Rule 17 would come into play and unless the lower Court is

satisfied that in spite of due diligence, the petitioner could not

have raised the matter before the commencement of trial the

amendment petition could not have been allowed. The petitioner

has filed the docket orders of the Civil Court and as seen

therefrom, the issues were framed in the year 2006 itself and

trial has commenced immediately thereafter and the chief and

cross examinations of the plaintiffs as well as the defendants

was almost completed. The contention of the plaintiff was that

3 2022 SCC Online SC 1128

PMD,J CRP.No.502 of 2023

she was dispossessed in the month of July, 2020, however, the

application in I.A.No.3 of 2022 was filed on 07.06.2022 i.e.,

nearly after two years of the alleged dispossession. The

petitioner, in the affidavit filed in support of the said petition,

has not explained the reasons as to why she has taken two

years to file the application. She has also not filed any evidence

in support of her contention that she was dispossessed in the

month of July, 2020.

8. The learned Senior Civil Judge has observed that the

petitioner could not have filed the amendment petition before

the commencement of trial. However, he ought to have

considered whether the petitioner has also filed any documents

in support of her contentions that she has been dispossessed

from the property only in the month of July, 2020. In the latest

judgment, the Hon'ble Supreme Court has considered the issue

and issued the following guidelines as given in Para 70 of the

order and for ready reference, it is reproduced hereunder:

70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.

PMD,J CRP.No.502 of 2023

(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) ****

(iv) ****

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) ****

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) ****

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) ****

9. The guideline number (ii) in Para 70 of the above order is

applicable to this case and as no injustice or prejudice would be

caused to the other side by the amendment allowed by the lower

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Court, this Court is also of the opinion that the amendment has

to be upheld as it would avoid multiplicity of proceedings. As

rightly observed by the learned Senior Civil Judge, that the

plaintiff has been claiming possession of the property all along,

whereas the defendant had stated that the possession was never

given to the plaintiff.

10. In view of the same, the issue as to who was in possession