Telangana High Court
Mohammed Moinuddin vs Sri. L. Rajasekhar Reddy on 17 April, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
THE HONOURABLE SRI JUSTICE P.SAM KOSHY
C.R.P.Nos.551 & 555 OF 2025
COMMON ORDER:
Heard Mr. M.Ravindranath Reddy, learned Senior
Counsel representing Mr. B.Srinarayana, learned counsel for the
petitioner and Mr. D.S.V.G.Nagaraju, learned counsel for the
respondent No.1. Perused the record.
2. These are two civil revision petitions which have been filed
against the orders dated 03.01.2025 passed by the learned
XII Additional District and Sessions Judge, Ranga Reddy District,
at L.B.Nagar in I.A.No.1026 of 2024 in I.A.No.765 of 2024 in
O.S.No.322 of 2018 and also the order dated 03.01.2025 passed in
I.A.No.765 of 2024 in O.S.No.322 of 2018.
3. The suit has been filed by the plaintiffs seeking for the
cancellation of the registered irrevocable General Power of
Attorney dated 28.09.1992 and has also been filed seeking for
declaration of the two registered sale deeds dated 01.02.1995 and
06.01.2000 to be null and void and further seeking an injunction
against defendant Nos.1 to 5 from the interference of the suit
schedule property.
4. The suit has been filed way back in the year 2018.
The defendants immediately on entering appearance have raised
an objection under Order VII Rule 11 CPC that the suit does not
disclose cause of action and also is barred by limitation. The said
I.A was registered as I.A.No.432 of 2021 and it was fixed for
hearing and the arguments on behalf of the respondents/defendants
were already recorded and the matter was fixed for arguments of
the plaintiffs on the said petition under Order VII Rule 11 CPC.
Meanwhile, the petitioner had filed a petition under Order VI Rule
17 CPC seeking for amendment of the suit to the extent of certain
corrections to be made so far as the date of death of certain persons
where references have been made in the plaint. Further, the
petitioner/plaintiff No.18 had also sought for seeking amendments
so far as the subsequent developments subsequent to the filing of
the suit to be brought on record. It was this petition which was
rejected by the trial Court vide the impugned order leading to the
instant civil revision petition. There was yet another I.A i.e.,
I.A.No.1026 of 2024 which was filed by the petitioner/plaintiff
No.18 seeking for certain corrections in the contents of the
amendment that were sought for to the extent of the dates reflected
in the amendment that was sought for under Order VII Rule 17
CPC to be corrected,. as inadvertently wrong year of death has
been reflected. Both these interlocutory applications were taken up
together and decided leading to the filing of these two civil revision
petitions.
5. The learned Senior Counsel appearing for the petitioner/
plaintiff No.18 contended that the perusal of the averments that the
petitioner/plaintiff No.18 to amend the suit itself would go to show
that except for the correction of the dates of death of certain
persons and also so far as certain subsequent developments that
have arisen, plaintiff No.18 does not intend to improve upon the
case of the plaintiffs in any manner, inasmuch as neither is the
cause of action of the suit being tampered or altered by way of
amendment sought nor does the question of limitation getting
improved or changed pursuant to the amendment that has been
sought for. Another aspect which is apparently visible is that the
suit has not travelled much during the said period as in spite of the
fact that the suit was filed in the year 2018 which is still at the stage
of objection filed by the defendants under Order VII Rule 11 CPC
is concerned which further proves that the suit has not progressed
substantially which could have an adverse bearing to the outcome
of the suit in any manner.
6. The bare perusal of the contents of the impugned order
would go to show that, in fact, while deciding the petition under
Order VI Rule 17 CPC i.e., I.A.No.765 of 2024 and also the
correction that has been sought to the proposed amendment is not
in any manner touching the merits of the case except for a
clarification of the facts reflected in the original suit. The trial
Court, on the other hand, has ventured into the merits of the suit
itself while deciding both the interlocutory applications, inasmuch
as the Court has reached to the conclusion that the amendment
sought for was only to defeat the petition under Order VII Rule 11
CPC filed by the respondent/defendant No.1 whereas admittedly
with the amendment that has been sought for neither does it change
the cause of action in any manner nor would it improve upon the
question of limitation in any manner. Moreover, since the suit
itself having not progressed substantially and is still at the stage of
Order VII Rule 11 CPC, the pendency of the suit for six years
cannot be a ground on which the Court below could have refused
the plaintiff's right to amend the pleadings in respect of certain
corrections which were required so far as the factual aspect is
concerned, particularly the dates of death which are mentioned in
the original suit.
7. At this juncture, it would be relevant to take note of the
decisions rendered by the High Court of Delhi in the matter of
WASUDHIR FOUNDATION vs. C.LAL & SONS 1 wherein in
paragraphs 2, 4, 7 and 9 it was held as under:
The facts need not detain me for long. A bonsai view
would do. The plaintiff has sought recovery of license
fee for a period subsequent to the service of notice or
revocation of the license. The defendant states that the
plaintiff can lay no claim for license after the revocation
of the license and that consequently the plaint discloses
no cause of action. The plaintiff, instead of facing the
challenge, is seeking permission to amend the plaint.
And, it is this prayer which has generated the heat, for,
DRJ 1991 (Supp.)
as per the defendant, the plaint has necessarily to be
rejected, and Order 7 rule 11 cannot be defeated by
taking recourse to Order 6 rule 17 and by amending the
plaint. Two judgments of this court namely Edwin
Bhave v. Hari Chand, 1982 ILR (Delhi) Vol. 1 p: 697,
and N. D. Khannu vs Hindustan Industrial Corporation,
AIR 1981 Delhi 305 have provided the required
ammunition, for, admittedly, they do per se lend
supports to what has been contended by the defendant.
xxxxx
There is need to be reminded, lest we forget, that
courts allow amendments not really as a matter of
power but in performance of its loftier duty to deliver
substantial justice. To quota Bowmen, L.J. in Cropper
v. Smith, (1884) 26 Ch.D. 700 at pp. 710-11:
"Now I think it is a well established principle that
the object of Courts is decide the rights of the
parties and not to punish them for the mistakes
they make in the conduct of their cases by
deciding otherwise than in accordance with their
rights. Speaking for myself and in conformity
with what I have heard laid down by the other
divisions of the Courts of appeal and by myself
as a member of it. I know of no kind of error or
mistake which if not fraudulent or intended to
overreach the court ought not to correct if it can
be done without injustice to the other party.
Courts do not exist for the sake of discipline but
for the sake of deciding mistakes in controversy
and I do not regard such amendment as a
matter of favor or of grace. Order 28, R. 1 of the
Rules of 1883, which follows previous
Legislature on the subject says that all such
amendments shall be made as may be
necessary for the purpose of determining the
real question in controversy between the
parties. It seems to me that as soon as it
appears that the may in which a party has
framed his case will not lead to a decision of the
real matter in controversy it is as much a matter
of right on his part to have it connected, if it can
be done without injustice as anything else in the
case is a matter of right."
xxxxx
xxxxx
The ouster of Order 6 rule 17 will throttle the very life
line of Order 7 rule 11. Instead of promoting, it would
defeat the ends of justice. I refuse to be a party to such
an approach.
Order 6 Rule 17 is thus hold to be neither restricted
nor controlled by Order 7 rule 11.
8. So also, it would be relevant to consider the observations
made by the High Court of Bombay in the case of GAGANMAL
RAMCHAND VS. THE HONGKONG AND SHANGHAI
BANKING CORPORATION2 wherein in paragraph 3, it was
held as under:
Now, apart from authority, turning to the scheme of
the Civil Procedure Code, O. 6, R. 17, is very wide in
its terms and it gives power to the Court to allow either
party to alter or amend his pleadings in order that the
real questions in controversy between them should be
adjudicated upon. Mr. Seervai relies on O. 7, R. 11,
which provides that the plaint shall be rejected in the
cases mentioned in that rule and the one with which
we are concerned is where it does not disclose a
cause of action. Mr. Seervai's argument is that when a
AIR 1950 Bombay 345
plaint comes before the Court and that plaint does not
disclose a cause of action, it is mandatory upon the
Court to reject that plaint and dismiss the suit and the
Court has no power to permit the plaint to be
amended. In other words, Mr. Seervai's contention is
that O. 6, R. 17, is controlled by O. 7, R. 11, and in
cases falling under O. 7, R. 11, the Court has no
jurisdiction to order the amendment of the plaint. I am
unable to accept that contention. I see no reason
whatever why the power of the Court to allow
amendment of pleadings should be in any way
restricted or controlled by the provisions contained in
O. 7, R. 11. It is perfectly true that it is incumbent
upon the Court to reject a plaint that does not disclose
a cause of action, but it does not follow that it is not
open to the Court to allow a plaint to be amended so
that it should disclose a cause of action. It is only
when a plaint does not disclose a cause of action that
the Court is called upon to exercise its power under
O. 7, R. 11. But the Court may prevent the operation
of O. 7, R. 11, and may save the plaint being rejected
by exercising its power under O. 6, R. 17, and
allowing the plaint to be amended. It would indeed be
an extraordinary proposition to lay down that if various
averments had to be made in the plaint which would
go to constitute a cause of action, and by some
oversight or some mistake the plaintiff failed to make
one of the averments, then in that case the plaint
must be dismissed and the plaintiff could not apply for
an amendment and make the necessary averment.
9. In the light of the aforesaid judicial pronouncements and the
averments made, this Court is the considered opinion that the order
of the trial Court in rejecting the petition filed under Order VI Rule
17 per se seems to be not proper and justified, as from the facts
narrated in the preceding paragraphs, this Court is of the considered
opinion that no prejudice as such is caused to the other side if the
amendment would had been allowed nor would it cause prejudice
to the objection raised by the defendants insofar as the cause of
action and the suit being barred by limitation and for this reason,
the civil revision petitions deserves to be and are accordingly
allowed. Consequently, I.A.Nos.765 of 2024 and 1026 of 2024
stands allowed. Let necessary amendments be carried out and the
matter may be proceeded in accordance with law thereafter. Let
the amendments be carried out within period of one week and
thereafter the trial Court is expected to take appropriate decision
on I.A.No.432 of 2021 in accordance with law as expeditiously as
possible within an outer limit of two months. There shall be no
order as to costs.
Consequently, miscellaneous petitions pending, if any, shall
stand closed.
__________________
P.SAM KOSHY, J
17.04.2025
Lrkm
