M/S. Sri Sai Mourya Estates And Projects ... vs V. Suresh Reddy

Telangana High Court

M/S. Sri Sai Mourya Estates And Projects ... vs V. Suresh Reddy on 25 January, 2024

                               1
                                                           SK,J
                                            CRP.No.2953 of 2023

       THE HON'BLE SRI JUSTICE K.SARATH

     CIVIL REVISION PETITION No.2953 of 2023
ORDER:

1. This Civil Revision Petition is filed under Article

227 of the Constitution of India, aggrieved by the order

dated 16.08.2023 in I.A.No.319 of 2023 in O.S.No.8 of

2012 on the file of I Additional District and Sessions

Judge, Bhongir, whereunder the petition filed by the

petitioner/plaintiff to amend the plaint was dismissed.

2. Heard the learned Counsel for the petitioner and

the learned Counsel for the respondents.

3. For the sake of convenience the parties herein are

referred to as arrayed in the suit.

4. The revision petitioner is the plaintiff and the

respondent Nos.1 to 4 are defendants in the suit.

5. The learned Counsel for the revision

petitioner/plaintiff submits that the plaintiff filed suit in

O.S.No.8 of 2012 on the file of I-Additional District and 2 SK,J CRP.No.2953 of 2023

Sessions Judge, Bhongir for cancellation of registered

agreement of sale cum-GPA bearing document No.390

of 2009 dated 21.01.2009, which was said to have been

executed by the defendant No.1, on behalf of the

company, in favour of the defendant No.2. In the said

suit interim injunction was granted in I.A.No.292 of

2012 restraining the respondents from alienating the

suit schedule property. In spite of there being interim

injunction order, the defendant No.2 transferred the

suit schedule property in favour of her daughter and

grand-daughter, defendants 3 and 4, through registered

document Nos.9814 and 9815 of 2019 dated

12.07.2019 and later the defendant No.2 died on

13.11.2020 and the said transactions are hit by 52-A of

Transfer of Property Act and therefore if the said

documents are not cancelled and remains in the public

domain it would give scope to play mischief and

therefore it being a consequential document to AGPA,

which was sought to be cancelled as main relief, it is 3 SK,J CRP.No.2953 of 2023

necessary to amend the plaint and the petitioner filed

I.A.No.319 of 2023 in O.S.No.8 of 2012 for amendment

of plaint. In the said petition the defendant No.3 filed

counter. The Court below after hearing both sides

dismissed the petition stating that the

petitioner/plaintiff has failed to show sufficient grounds

to amend the plaint and dismissed the petition. Being

aggrieved by the same, the petitioner filed the present

revision.

6. The learned Counsel for the petitioner would

submit that the impugned order passed by the Court

below is illegal, contrary to law and facts and the same

is liable to be set aside. The learned Counsel for the

petitioner would submit that there is no bar to allow the

petition even after commencement of trial and it can be

allowed even at the stage of appeal. The amendment

sought by the petitioner, more precisely to declare the

registered sale deed and registered gift settlement deeds

as null and void and not binding on the petitioner, 4 SK,J CRP.No.2953 of 2023

except that no substantial amendment is sought for,

the amendment sought for is to avoid further

transferring the property to third parties it leads to

multiplicity of litigation. The Court below had given

utmost importance to the technicalities rather to do

justice to the parties. The Court below failed to see

that the subsequent events that took place during the

pendency of the suit, transferring the suit property and

the subsequent events are necessary to determine the

real questions and the controversy involved in the lis

among the parties, which the court below ignored and

dismissed the petition and requested to set aside the

impugned order by allowing the Civil Revision Petition.

7. The learned Counsel for the petitioner, in support

of his contention, placed reliance on the following

Judgments:

1. Life Insurance Corporation of India Vs. Sanjeev Builds Private Limited and others 1

1 2022 AIR (SC) 4256 5 SK,J CRP.No.2953 of 2023

2. Boya Pikkili Pedda Venkataswamy Vs. Boya Ramakrishnudu 2

8. On the other hand the learned Counsel for the

respondents submit that the amendment sought in the

petition is not legally tenable and as per Rule 28 of Civil

Rules of Practice all the consequential amendments

have to be sought in the petition for amendment and if

such consequential amendments are not sought, then

the main petition itself shall be rejected. Admittedly the

petitioner has not sought the consequential amendment

in the earlier petition and therefore the petitioner is not

entitled to seek such relief.

9. The learned Counsel for the respondents would

further submit that amendment now sought is also not

legally permissible. As per law, relief of cancellation of

a document can be sought by a person only if he is a

party to the document in dispute. Any third party

cannot seek relief of cancellation of a document as per

2 (2013) (2) ALT 214 6 SK,J CRP.No.2953 of 2023

the law settled by the Supreme Court and in view of the

defects existing in the petition the petition is not legally

maintainable and the Court below rightly dismissed the

petition and there are no grounds in the revision and

requested to dismiss the revision petition.

10. The learned Counsel for the respondents, in

support of their contentions, relied on the following

judgments:

1. Revajeetu Builders and Developers vs. Narayanaswamy and sons and others 3

2. Rama Chandra Nayak vs. Jadu Simadri and others 4

11. After hearing both sides and on perusing the

record this Court is of the considered view that the

revision petitioner herein filed suit for cancellation of

registered Agreement of Sale-cum-GPA No.390 of 2009

dated 21.01.2009 on the file of Sub-Registrar,

Choutuppal. In the said suit the Court below passed

interim injunction order on 25.01.2012 in I.A.No.292 of 3 (2009) 10 SCC 84 4 Law Finder Document ID# 2052888 Of Orissa High Court dt.06.09.2022 7 SK,J CRP.No.2953 of 2023

2012 in O.S.No.8 of 2012, restraining the

respondents/defendants from alienating the suit

schedule property or creating any third party interest

in the suit schedule property, on compliance Order-39,

Rule 3 (a) of Civil Procedure Code. When the suit was

coming for trial, the revision petitioner filed I.A.No.319

of 2023 for amendment of the plaint and the Court

below through impugned order rejected application filed

by the petitioner. The reasons given by the Court below

are that further amendment is not necessary to

effectively adjudicate on the main issues in controversy

between the parties since the real issue is between the

plaintiff and the deceased-defendant No.2 with regard

to AGPA executed by the defendant No.1 in favour of

defendant No.2 and the registered sale deed basing on

which the amendment is sought was subsequently

executed by the defendant No.2 in favour of defendant

No.3 and 4 basing on the AGPA during the pendency of

the suit and it is hit by Section 52 of Transfer of 8 SK,J CRP.No.2953 of 2023

Property Act and it will have its validity subject to the

result of the main suit and the petitioner/plaintiff failed

to explain as to why he could not sought the said

amendment before the trial is commenced despite

exercising due diligence and that the petitioner has

failed to show sufficient grounds to amend the plaint as

prayed for by the petitioner.

12. The Court below in the impugned orders held that

the judgments relied on by the learned Counsel for the

petitioner in Life Insurance Corporation of India Vs.

Sanjeev Builders (supra 1 ) and the Judgment of this

Court in Boya Pikkili Pedda Venaktaswamy Vs.

Boya Ramakrishnudu (supra 2) are not applicable to

the facts of the instant case.

13. In Life Insurance Corporation of India vs.

Sanjeev Builders (supra 1), the Hon'ble Supreme

Court of India, held as follows:

"70. our final conclusions may be summed up thus:

xxx 9 SK,J CRP.No.2953 of 2023

xxx

(iv) A prayer for amendment is generally required to be allowed unless;

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

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

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(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) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

SK,J CRP.No.2953 of 2023

(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) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed".

SK,J CRP.No.2953 of 2023

14. This Court in Boya Pikkili Pedda

Venkataswamy's case (supra 4), at para No.13, held

that :

"This decision makes it very clear that by virtue of taking place of subsequent events, necessary amendment can be carried out in spite of the terminology used in the proviso to Order VI Rule 17 C.P.C. This also makes it very clear that by adding the reliefs the matter need not be remanded to the concerned trial Court from the concerned appellate Court for taking next course of action. Pertinently the plaintiffs' advocate wants to dispose of the matter during the appellate stage itself just on the basis of the evidence recorded already. Apart from that it is always necessary to see that the suit is disposed of administering justice to the parties litigating as required. The matter is to be viewed in a broad perspective always instead of disposing of it on the basis of narrow considerations. If relevant technicalities are to be given utmost importance, that may cause injustice to either of the parties to a litigation. The question as to whether the plaintiffs got knowledge about the possession of the defendant over the property is a question to be decided on the basis of evidence to be recorded".

SK,J CRP.No.2953 of 2023

15. The amendment sought by the petitioner in

precise is to declare the registered documents executed

consequent to the interim orders passed by the Court

below as null and void and not binding on the

petitioner. The prayer sought by the petitioner is

consequential amendment to the main prayer, as even

after passing interim orders restraining the respondents

from alienating the property, the respondent No.2

transferred the suit property in her favour through

registered document No.2760 of 2018 dated 08.03.2018

and thereafter the respondent No.2 transferred part of

the schooled proeorty in favour of her daughter and

granddaughter through registered sale deed No.9814

and 9815 of 2009 dated 12.07.2010 and in view of the

same the conduct of the parties has to be taken into

account for adjudicating the matter and to avoid

multiplicity of litigation or creating third party interest

pending the suit is to be taken into consideration. In

view of the same, the judgments relied on the learned 13 SK,J CRP.No.2953 of 2023

counsel for the petitioner squarely apply to the instant

case.

16. In the Judgment relied on by the learned

Counsel for the respondents in Revajeetu Builders

and Developers Vs. Narayanaswamy and sons and

others (supra 3), the Hon'ble Supreme Court, held as

follows:

"Factors to be taken into consideration while dealing with the applications for amendments:

63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper effective adjudication of the case;

(2) Whether the application for amendment is bona fide or mala fide;

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

(4) refusing amendment would in fact lead to injustice or lead to multiplies litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) As a general rule, the court should decline amendments, if a fresh suit on the maddened claims would be barred by limitation on the date of application; 14

SK,J CRP.No.2953 of 2023

17. In view of the guidelines framed by Hon'ble

Supreme Court of India in the above judgment in Para

63 (4) squarely apply to the instant case, as refusing

amendment would in fact lead to injustice to the other

side which cannot be compensated adequately in terms

money.

18. In view of the same, the judgments relied on by

the learned Counsel for the respondents not apply to

the instant case.

19. The Hon'ble Supreme Court in Andul Rehaman

and another Vs. Mohd. Ruldu and others 5 ) held as

follows:

10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-

"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 parties: Provided that no application for amendment

5 (2012) 11 SCC 341 15 SK,J CRP.No.2953 of 2023

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."

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

11. The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, could not have raised the matter before the commencement of trial. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage 16 SK,J CRP.No.2953 of 2023

of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment"

(Emphasis added)

20. In the instant case, the defendant No.2 in spite of

interim injunction passed by the Court below executed

consequential documents in favour of defendant No.3

and 4 and the proposed amendment would not

constitutionally or fundamentally change the nature

and character of the suit. In view of the principles laid

down by the Hon'ble Supreme Court in Abdul

Rehman's case (supra 5) the present revision is liable

to be allowed.

21. The Court below in the impugned order held that

the subsequent document executed by the defendant 17 SK,J CRP.No.2953 of 2023

No.2 is hit by Section 52 of Transfer of Property Act and

it will have its validity subject to the result of the main

suit. The defendant No.2, in spite of interim injunction

passed by the Court below, executed registered

document in favour of the defendant No.3 and 4, which

clearly shows the mala fide intention of the defendant

No.2. In view of the same, the Court below failed to

consider the conduct of the parties and basing on mere

technicalities passed the impugned order and the filing

of the amendment petition after commencement of the

trial is not a ground for rejecting amendment petition

and the Court below has to take into consideration of

the facts of the case. In view of the same, in the instant

case, to avoid multiplicity of litigation in view of

consequential events, the amendment sought by the

petitioner is liable to be allowed.

22. With the above findings, the revision petition is

allowed by setting aside the impugned order dated

16.08.2023 passed in I.A.No.319 of 2023 in O.S.No.8 of 18 SK,J CRP.No.2953 of 2023

2012 on the file of the I Additional District and Sessions

Judge at Bhongir and consequently, I.A.No.319 of

2023 in O.S.No.8 of 2012 stands allowed.