Safiya Sulthana vs Thallapalli Ashamma Died Per Lrs R4 And ...
2024 Latest Caselaw 4301 Tel

Telangana High Court

Safiya Sulthana vs Thallapalli Ashamma Died Per Lrs R4 And ... on 5 November, 2024

      THE HONOURABLE SMT. JUSTICE K. SUJANA


     CIVIL REVISION PETITION Nos.524 & 567 of 2024


COMMON ORDER:

Since the issue involved in both these revision petitions

is one and the same, they are being heard and disposed of

together by way of this common order.

2. These Civil Revision Petitions are filed aggrieved by the

order dated 29.01.2024 passed in I.A.Nos.259 and 260 of

2023 in O.S.No.18 of 2017, respectively, by the learned

I-Additional District and Sessions Judge, Jagtial.

3. The brief facts of the cases are that petitioners who are

the plaintiffs, filed O.S.No.18 of 2017 seeking perpetual

injunction to restrain the respondents/defendants from

interfering with the suit schedule property. During the course

of trial, petitioners filed I.A.Nos.259 and 260 of 2023 under

Order VI Rule 17 of the Code of Civil Procedure, 1908, to

reopen the suit and amend the plaint. This amendment was

sought to declare title and perpetual injunction, and to nullify

certain documents, including a simple sale deed, ROR

SKS,J C.R.P.Nos.524 & 567 of 2024

proceedings, a registered partition deed, and a gift settlement

deed, as void and non-binding on the plaintiffs.

4. The respondents there in filed counter denying the

averments of petition and as the evidence was closed on

behalf of both sides, and coming for arguments, petitioners

took several adjournments and the petitions are filed only to

drag on the matter. The amendment without any cause of

action is not permissible, as such, requested the trial Court to

dismiss the petitions.

5. However, the Court below after hearing both sides,

dismissed the said petitions on 29.01.2024, observing that

since suit is coming up for arguments from 12.12.2023 and

several adjournments were taken, the petition to reopen the

suit and amendment of plaint is filed. Amendment petition

has to be filed before commencement of trial, whereas it is

filed at the belated stage. Challenging the said dismissal

order, petitioners filed the present civil revision petitions.

6. Heard Sri Kondadi Ajay Kumar, learned counsel

appearing on behalf of the petitioners as well as Sri K. Sai

Sruthin Rao, learned counsel appearing on behalf of the

respondents.

SKS,J C.R.P.Nos.524 & 567 of 2024

7. Learned counsel for the petitioners submitted that the

order of Court below is illegal, contrary to law, facts, evidence,

and probabilities. He further submitted that the Court below

erred in not allowing the petitioners to amend the nature of

suit under Order VI Rule 17 of C.P.C, which permits

amendments at any stage and by dismissing the petition, the

Court below overlooked the bona fide attempt of the

petitioners to avoid multiple suits. He further submitted that

the title of petitioners was disputed by the respondents,

necessitating an amendment to seek declaration and

cancellation of deeds for proper adjudication which will reduce

multiplicity of litigation.

8. Learned counsel for the petitioners further contended

that law permits amendments at any stage, and the proposed

changes are essential to resolve the title dispute. He further

submitted that denying amendment would force the

petitioners to file a separate suit leading to unnecessary

litigation. Therefore, reopening the case is inevitable to permit

necessary amendments, as such, he prayed the Court to set

aside the orders dated 29.01.2024 by allowing these civil

revision petitions.

SKS,J C.R.P.Nos.524 & 567 of 2024

9. In support of his contentions, learned counsel for the

petitioners, relied upon the judgment of the Hon'ble Supreme

Court in Surender Kumar Sharma v. Makhan Singh 1 ,

wherein in paragraph Nos.5 and 7, it is held as under:

"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.

7. So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The

1 2009 AIR SCW 6131

SKS,J C.R.P.Nos.524 & 567 of 2024

suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed."

10. Learned counsel further relied upon the judgment of the

Hon'ble Supreme Court in Abdul Rehman and another v.

Mohd. Ruldu and others 2, wherein in paragraph Nos.11 and

16, it is held as under:

"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, the party 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

2 (2012) 11SCC 341

SKS,J C.R.P.Nos.524 & 567 of 2024

decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimise 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 v. Gattu Mahesh [(2012) 2 SCC 300 : (2012) 1 SCC (Civ) 801] and Rameshkumar Agarwal v. Rajmala Exports (P) Ltd. [(2012) 5 SCC 337 : (2012) 3 SCC (Civ) 92] Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.

16. In view of the stand taken by Respondents 1-3 herein/Defendants 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged."

11. He further relied upon the Judgment of the Hon'ble

Supreme Court in Sampath Kumar v. Ayyakannu and anr 3,

wherein in paragraph No.7, it is held as follows:

"7. In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial court, it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial court and with the High Court in

3 2002 (7) SCC 559

SKS,J C.R.P.Nos.524 & 567 of 2024

refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."

12. On the other hand, learned counsel appearing on behalf

of the respondents opposed the submissions made by the

learned counsel for the petitioners stating that the Court

below has rightly passed order. The respondents denied the

title of plaintiffs in their written statement itself, but they have

not taken care of such denial and the cross-examination and

evidence of the defendants are also on same lines and the said

petitions can be filed before settlement of issues whereas, it

was filed at a belated stage only to drag on the matter. There

is no illegality in the order of the Court below and prayed the

Court to dismiss the civil revision petition. In support of his

contention, he relied upon the judgment of the Hon'ble

Supreme Court in Basavaraj v. Indira and others 4.

13. He further relied upon the judgment of the Hon'ble

Supreme Court in Chander Kanta Bansal v. Rajinder Singh

4 (2024) 3 Supreme Court Cases 705

SKS,J C.R.P.Nos.524 & 567 of 2024

Anand 5, wherein in paragraph Nos.11 and 12, it is held as

follows:

"11. In order to find out whether the application of the defendant under Order 6 Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC. Order 6 Rule 17 reads thus:

"17. Amendment of pleadings.--The court may at any stage of the proceedings allow either party to alter or amend his pleading 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial."

This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity

5 (2008) 5 Supreme Court Cases 117

SKS,J C.R.P.Nos.524 & 567 of 2024

of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment.

12. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This Rule had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall be allowed after the commencement of trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise."

14. In the light of the submissions made by both the

learned counsel and a perusal of the material available on

record, petitioners filed petitions under Order VI Rule 17 of

C.P.C, and under Section 151 of C.P.C, to reopen the suit for

amendment of plaint and as per the provision, the Court may

at any stage of proceedings allow either party to alter or

SKS,J C.R.P.Nos.524 & 567 of 2024

amend his pleadings which may be necessary for the purpose

of determining the real questions in controversy between the

parties and there is a proviso wherein it states that no

application for amendment shall be allowed after trial has

commenced unless the Court comes to a conclusion that

inspite of due diligence the party could not have raised the

matter before commencement of trial. Now it is to be seen

whether denial of title is after commencement of trial or before

commencement of trial.

15. As seen from the record, a copy of the written statement

is filed by the respondents herein in the Court below. In

paragraph No.4 it is clearly stated that original pattadar of

suit land to an extent of Ac.1.35 guntas had sold away

Ac.0.28 guntas to the husband of defendant No.1 and father

of defendants 2 and 3 and sold away land to an extent of

Ac.1.18 guntas to defendant No.2 for valid sale consideration

through simple sale deed dated 04.09.1981 with delivery of

possession. Subsequently, the simple sale deed was validated

under ROR proceedings vide proceedings No.B/2136/1998

dated 20.03.2006. Defendants 2 and 3 gave their consent to

mutate the suit land in the name of their mother i.e.,

SKS,J C.R.P.Nos.524 & 567 of 2024

defendant No.1, since the suit land was purchased with joint

family funds of defendants. Accordingly, the entire land was

mutated in the name of defendant No.1.

16. In paragraph No.5 of the written statement it is also

stated that defendant No.1 executed registered gift deed vide

document No.1613 of 2008 dated 23.07.2007 with delivery of

possession to an extent of Ac.1.35 guntas to defendant No.3.

The said gift deed is also accepted by defendant No.3 and

since then defendant No.3 has been in continuous possession

which shows that the respondents herein raised their defense

in the written statement itself, and it is in the knowledge of

petitioners/plaintiffs from the date of filing written statement

i.e., in the year 2018, but did not take any steps to amend the

plaint during that time before settlement of issues or after

filing of written statement. Order VI Rule 17 of C.P.C, clearly

says that burden to establish due diligence is on the petitioner

who files amendment to the pleadings of plaint. Order VI Rule

17 of C.P.C, also says 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

SKS,J C.R.P.Nos.524 & 567 of 2024

could not have raised the matter before commencement of

trial.

17. In the case on hand it is not even pleaded by the

petitioners before the Court below that inspite of due

diligence, they could not have filed petition for amendment.

When there is a clear recital in the written statement, it

cannot be said that during course of arguments it came to the

knowledge of the plaintiffs that defendants denied their title.

Further the judgment relied on by the respondents in

Basavaraj's case (supra 4) it is held as under :

"10. The proviso to Order 6 Rule 17 CPC provides 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. In the case in hand, this is not even the pleaded case of Respondents 1 and 2 before the trial court in the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment. All what was pleaded was oversight. The same cannot be accepted as a ground to allow any amendment in the pleadings at the fag end of the trial especially when admittedly the facts were in knowledge of Respondents 1 and 2-plaintiffs."

12. This Court in M. Revanna v. Anjanamma [M. Revanna v. Anjanamma, (2019) 4 SCC 332 : (2019) 2 SCC

SKS,J C.R.P.Nos.524 & 567 of 2024

(Civ) 338] opined that an application for amendment may be rejected if it seeks to introduce totally different, new and inconsistent case or changes the fundamental character of the suit. Order 6 Rule 17CPC prevents an application for amendment after the trial has commenced unless the Court comes to the conclusion that despite due diligence the party could not have raised the issue. The burden is on the party seeking amendment after commencement of trial to show that in spite of due diligence such amendment could not be sought earlier. It is not a matter of right. Para 7 thereof is extracted below : (SCC p. 335) "7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17CPC virtually prevents an application for amendment of pleadings from being 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

(emphasis supplied)

SKS,J C.R.P.Nos.524 & 567 of 2024

15. If the amendment is allowed in the case in hand, certainly prejudice will be caused to the appellant. This is one of the important factors to be seen at the time of consideration of any application for amendment of pleadings. Any right accrued to the opposite party cannot be taken away on account of delay in filing the application."

18. In view of the observations of the Hon'ble Supreme

Court in the above judgments, and the facts of the case on

hand, if amendment is allowed, it will cause prejudice to the

respondents herein. The trial Court rightly dismissed the

petition. There are no merits in these revision petitions and

the same are liable to be dismissed.

19. Accordingly, C.R.P.Nos.524 and 567 of 2024 are

dismissed. No costs.

Miscellaneous petitions, if any, pending shall stand

closed.

_______________ K. SUJANA, J Date :05.11.2024 Rds