Telangana High Court

D. Ravinder vs Sri. Narsimaha Rao on 4 November, 2024

Author: G.Radha Rani

Bench: G.Radha Rani

         THE HONOURABLE DR.JUSTICE G.RADHA RANI

           CIVIL REVISION PETITION No.2790 of 2024

ORDER:

This Civil Revision Petition is filed by the petitioner - plaintiff aggrieved

by the order dated 12.07.2024 passed in I.A.No.1786 of 2023 in O.S.No.207 of

2018 by the learned Junior Civil Judge at Zaheerabad, Sangareddy District.

2. The facts of the case in brief are that the petitioner - plaintiff filed the suit

for perpetual injunction in respect of the suit schedule property admeasuring

Ac.3-25 guntas agricultural land in Survey No.8/A situated at Singitham Village,

Raikode Mandal, Sangareddy District. The respondent - defendant filed written

statement. After framing of issues, trial was commenced and the petitioner filed

his evidence affidavit as PW.1 on 29.03.2023 and got marked the documents as

Exs.A1 to A6. When the suit was coming for cross-examination of PW.1, the

petitioner filed I.A.No.1786 of 2023 seeking amendment of the plaint

contending that originally he purchased an agricultural land total admeasuring

Ac.6-38 guntas in Survey No.8/A through registered sale deed document

No.147 of 1991 dated 24.01.1991. Thereafter his name was mutated in the

revenue records and obtained pattadar passbook and title deed, etc. After

purchase, to meet his personal and family requirements, he sold part of the

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agricultural land total admeasuring Ac.3-10 guntas i.e.Ac.1-18 guntas through

registered sale deed document No.2069 of 2005 dated 18.06.2005 to one

Madhukar and admeasuring Ac.1-32 guntas through registered sale deed

document No.1912 of 2006 dated 24.03.2006 to one B.Bharathamma and the

remaining land admeasuring Ac.3-28 guntas was standing in his name and he

obtained pattadar passbook for Ac.3-28 guntas in Survey No.8/A. From out of

the Ac.3-28 guntas, he sold out part of the land admeasuring Ac.3-25 guntas by

executing registered sale deed document No.6499 of 2007 dated 03.11.2007 in

favor of respondent - defendant, but not delivered the physical possession of the

said land and also not delivered the link documents because the respondent -

defendant had not paid the sale consideration at the time of execution of sale

deed. As per his promise, the respondent agreed to pay the sale consideration

within two (02) months. But as he failed to pay the same, the land was not

mutated in the name of the respondent - defendant in the revenue records and

the petitioner - plaintiff was cultivating the same by raising seasonal crops and

his name was continuously reflecting in the revenue records. The petitioner -

plaintiff was regularly receiving the Rythu Bandhu scheme benefits from the

Government. In view of the said facts, his earlier counsel advised him at the

time of filing the suit that there was no necessity to seek any relief seeking

cancellation of the registered sale deed, as the alleged registered sale deed

would become infructuous by operation of law. As such, the petitioner -

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plaintiff filed the suit only seeking relief of perpetual injunction without seeking

the relief to declare the said registered sale deed as null and void and not

binding on the petitioner - plaintiff.

2.1. It was further averred that during the pendency of the above suit, in the

month of February, 2023, the petitioner came to know that the respondent

gained over the revenue authorities and got mutated his name in the revenue

records without issuance of notice to the petitioner - plaintiff and also got

deleted his name from the records without following due process of law.

Aggrieved by the said arbitrary and illegal action of the revenue authorities, the

petitioner - plaintiff filed W.P.No.10733 of 2023 before the High Court for the

State of Telangana and the same was pending adjudication. After filing the

chief affidavit of PW.1 on 29.03.2023, the earlier counsel on record for the

petitioner - plaintiff gave NOC vakalat. As such, the petitioner - plaintiff was

compelled to engage another advocate on 02.06.2023 and on the advice of the

counsel, the petitioner - plaintiff filed the petition to declare the sale deed

bearing document No.6499 of 2007 dated 03.11.2007 as null and void and not

binding on him.

3. The respondent - defendant filed counter contending that the suit was

filed by the petitioner - plaintiff against him in the year 2018 and for the last

five (05) years, he had not filed the above application. But when the matter was

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coming for cross-examination of PW.1, the petition was filed only to drag the

matter. The petitioner - plaintiff deliberately suppressed the material facts and

filed the suit without stating about executing the registered sale deed document

No.6499 of 2007 dated 03.11.2007 in favor of the defendant in respect of the

petition schedule property and delivery of possession to the defendant and

obtained ad interim injunction. After receiving the summons / notice from the

Court, the defendant filed his counter and written statement. On considering the

arguments, the trial court dismissed the I.A. on 05.03.2019. Against the said

dismissal, the petitioner filed C.M.A.No.2 of 2019 on the file of the learned

Senior Civil Judge, Zaheerabad. The same was also dismissed on 17.03.2022

confirming the order of the trial court. Basing on the registered sale deed

document in the name of the defendant, the revenue authorities mutated the

name of the defendant in the revenue records and issued pattadar passbook in

his favor. The petitioner had created a new story to amend the suit with false

claim to grab the valuable property pertaining to the defendant. The sale deed

which was executed by the petitioner was binding on him and prayed to dismiss

the petition.

4. On hearing both the learned counsel, the learned Junior Civil Judge,

Zaheerabad dismissed the petition.

5. Aggrieved by the same, the petitioner - plaintiff preferred this CRP.

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6. Heard Sri Bethi Venkateshwarlu, learned counsel for the petitioner and

Sri Praveen Kumar Challa, learned counsel for the respondent.

7. Learned counsel for the petitioner submitted that the dismissal of I.A. was

contrary to the well settled principles of law. The trial court erred in not

noticing the fact that, as per the entries in the revenue records, the petitioner was

in possession of the suit schedule property continuously till date i.e. even after

lapse of more than twelve (12) years from the date of execution of registered

sale deed. The respondent did not make any efforts to pay either the sale

consideration or to recover the possession of the lands. As the petitioner's

previous counsel advised him that there was no necessity to seek any relief for

cancellation of the registered sale deed, the petitioner filed the said suit only for

permanent injunction against the respondent, but as it was necessary to seek a

comprehensive relief of cancellation of the registered sale deed, the amendment

was warranted for proper adjudication of the suit. The trial court erred in

holding that the petitioner's plea was barred by limitation and relied upon the

judgment of this Court in C.R.P.No.937 of 2023 dated 26.02.2024. Learned

counsel for the petitioner also contended that all amendments which were

necessary for determining the real questions in controversy had to be allowed

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and relied upon the judgment of the Hon'ble Apex Court in Dinesh Goyal @

Pappu v. Suman Agarwal (Bindal) & Others 1.

8. Learned counsel for the respondent on the other hand contended that the

application under Order VI Rule 17 itself was not maintainable. As such, the

trial court dismissed the said application. Originally, the suit was filed for

perpetual injunction and now the petitioner was seeking amendment to declare

the sale deed as null and void. The petitioner was converting the injunction suit

into declaration suit. Infact, the amendment sought itself was barred by

limitation. The application for amendment was filed to declare the registered

sale deed No.6499 of 2007 dated 03.11.2007 as null and void. The amendment

was barred by limitation. The petitioner filed the suit for perpetual injunction

suppressing the execution of sale deed in favor of respondent alleging that he

was in possession of the suit schedule property. The petitioner though having

knowledge about the execution of registered sale deed in favor of the defendant

in the year 2007, filed the suit in the year 2018. There were no circumstances

for the petitioner for not filing the application at an earlier stage and prayed to

dismiss the CRP with exemplary costs.

9. Perused the record.

2024 INSC 726

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10. Order 6 Rule 17 of CPC pertains to amendment of pleadings. It reads 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 parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial."

11. As seen from the above provision, the amendment of pleadings can be

allowed at any stage when it was necessary to determine the real question of

controversy inter se between the parties and if the application for amendment

was filed after commencement of trial, it has to be shown that inspite of due

diligence, it could not have been sought earlier.

12. The Hon'ble Apex Court in Dinesh Goyal @ Pappu v. Suman Agarwal

(Bindal) & Others (cited supra) considered the law relating to the amendment

of pleadings and by extracting its earlier judgments, held that:

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"11.1. The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v.

Bhagwan Das [(2008) 8 SCC 511], it was held as under:

"16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the

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same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see:

Gajanan Jaikishan Joshi vs. Prabhakar Mohanlal Kalwar [(1990) 1 SCC 166].

11.2. Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17.

Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another [2022 SCC OnLine SC 1128], after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:-

(i) 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.

(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the

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parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.

(iii) Amendments, while generally should be allowed, the same should be disallowed if -

(a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side;

(b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations);

(c) The amendment completely changes the nature of the suit;

(d) The prayer for amendment is malafide.

(e) By the amendment, the other side should not lose a valid defence.

(iv) Some general principles to be kept in mind are:-

(I) The Court should avoid a hyper-technical approach; ordinarily be liberal, especially

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when the opposite party can be compensated by costs.

(II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.

(III) The amendment should not change the cause of action, so as to set up an entire new case, foreign to the case set up in the plaint."

13. In the light of these guidelines, the merits of the petition need to be

considered.

14. The trial court observed that:

"The petitioner filed the suit in the year 2018 against the respondent herein, but nowhere in his pleadings, the petitioner mentioned about the existence of the sale deed document No.6499 of 2007. It was not the case of the petitioner that he had no knowledge about the existence of the said sale deed as on the date of filing the present suit. Further, the plea of non-payment of sale consideration amount by the respondent was completely a new plea that had not been found its place in the pleadings. For the reasons best known to the petitioner, the details of the said

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sale transaction and the existence of the sale deed vide document No.6499 of 2007 was suppressed in his pleadings. Moreover, the petitioner who is claiming threat with the existence of the above said sale deed on the ground that no consideration is being paid to him has not filed any suit for cancellation of above said sale deed since 2007 and no prudent person having executed a registered sale deed in favor of vendee would remain silent till 2023 if the consideration has not been paid under the sale transaction and the said plea of non- payment of sale consideration amount to the petitioner by the respondent for a transaction that took place in the year 2007 is far beyond imagination and even in case if it is assumed to be true, the petitioner's plea is barred by limitation as the sale deed is of the year 2007. Further, it is only in the year 2023 that the petitioner is seeking the relief of mere declaration of the said sale deed as null and void. In the circumstances discussed above, the petitioner has failed to prove that he was prevented under valid cause to raise the present claim before commencement of trial. Further, if the present relief for declaration or cancellation of the above sale deed is granted, it would completely change the nature of the suit. Hence, this Court is of considered opinion that the petitioner is not entitled for the relief as prayed for and the point is decided against the petitioner."

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15. The Hon'ble Apex Court in the above judgment in Life Insurance

Corporation of India v. Sanjeev Builders Private Limited & another in

Civil appeal No.5909 of 2022, stated that amendments, while generally should

be allowed, the same should be disallowed if the amendments would completely

change the nature of the suit, the prayer for amendment is malafide, the

amendment does not raise a time barred claim resulting in divesting the other

side of a valuable accrued right.

16. All these factors are found in the present case. The suit was initially filed

for injunction suppressing the fact of existence of the sale deed document

No.6499 of 2007 executed by the petitioner to the respondent - defendant herein;

as such the prayer for amendment was malafide. The present amendment also