Andhra HC (Pre-Telangana)
Boya Pikkili Pedda Venkataswamy vs Boya Ramakrishnudu on 26 November, 2012
Equivalent citations: AIRONLINE 2012 AP 51, (2013) 1 CURCC 363 (2013) 2 ANDHLD 96, (2013) 2 ANDHLD 96
Author: G.Krishna Mohan Reddy
Bench: G.Krishna Mohan Reddy
HON'BLE SRI JUSTICE G.KRISHNA MOHAN REDDY C.R.P.No.1332 of 2012 26-11-2012 Boya Pikkili Pedda Venkataswamy Boya Ramakrishnudu Counsel for the Appellant: Sri M. Radha Krishna Counsel for Respondents: Sri U. Ramanjaneyulu <Gist: >Head Note: ?Cases referred: AIR 2002 SC 665 ORDER:
This Civil Revision Petition is filed under Section 151 C.P.C. aggrieved by order dated 31-01-2012 passed I.A.No.11 of 2011 in A.S.No.1 of 2011 on the file of the Court of Senior Civil Judge, Nandikotkur (I.A) which was filed against judgment and decree dated 01-12-2010 passed in O.S.No.184 of 2005 on the file of the Court of Junior Civil Judge, Nandikotkur (O.S).
2. The petitioner herein is also the petitioner in the I.A. and first plaintiff in the O.S. whereas the respondent herein is also the respondent in the I.A. and defendant in the O.S. For convenience sake, I refer the parties as arrayed in the O.S.
3. It is necessary to note the facts of the case for proper appreciation of the matter, they are as follows:
According to the plaintiffs, the suit schedule property originally belongs to one Chinna Ramanna, resident of Alaganur village. As he had no issues, he gifted the entire suit schedule property to them (the plaintiffs 1 and 2) through a gift deed dated 12-02-1962 which reveals that after the death of the executants, the property should devolve upon his wife Yellamma with limited rights and after her death should go to them (the plaintiffs 1 and 2). Accordingly they (the plaintiffs 1 and 2) became the owners of the property and have been in possession and enjoyment of the same accordingly. But the defendant tried to encroach the plaint schedule land without any manner of right. Hence, they filed the suit for permanent injunction.
4. The defendant filed written statement denying the allegations made in the plaint. It s stated that the surname of the plaintiffs 1 and 2 is 'Valiche' but not 'Pikkili' as stated in the plaint whereas the surname of the defendant is 'Pikkili' which is omitted in the plaint purposely. Chinna Ramanna did not execute any gift deed in favour of the plaintiffs keeping life interest over his wife Boya Yellamma on 12-02-1962. It is claimed that the Tahsildar, Nandikotkur issued assignment patta in favour of him (the defendant) on 06-03-1984 and since then he has been in possession and enjoyment of the suit schedule land.
5. Along with the suit the plaintiffs filed a petition for interim injunction against the defendant which was allowed. However, on appeal in C.M.A.No.9 of 2005 on the file of the Court of Senior Civil Judge, Nandikotkur, the injunction order was set aside. The claim of the plaintiffs is that on account of that the defendant occupied the property.
6. For the plaintiff the first plaintiff got himself examined as PW-1 and examined N.M.C. Umar Saheb as PW-2 and also got marked Exs.A-1 to A-5. On behalf of the defendant, the defendant got himself examined as DW-1 and also examined Venkata Subbaiah as DW-2 and got marked Exs.B-1 to B-5.
7. After full-fledged trial the trial Court dismissed the suit as not maintainable on the ground that it was filed without seeking the relief of declaration of title. Aggrieved thereby, the plaintiffs filed the appeal (A.S.No.1 of 2011). During its pendency, the first plaintiff filed the I.A. under Order VI Rule 17 C.P.C. to amend the plaint as pleaded in the petition and to make consequential amendments in the plaint. The appellate Court after hearing the parties dismissed the I.A. on the ground that the plaintiffs got knowledge about the relevant facts long prior to the filing of the suit and they cannot seek the amendment now.
8. Learned counsel for the plaintiffs contends that as the event of occupation of the property by the defendant took place during the proceedings of the suit, and as necessity arose to seek for the possession of the property following which the declaration of title of the property also should be sought, the I.A. in question was filed under Order VI Rule 17 C.P.C. accordingly before the appellate Court but the appellate Court dismissed the plea observing that it was filed at a belated stage which, therefore, is not tenable. He also has stated that no evidence will be recorded for the plaintiffs consequently. He has placed reliance upon a decision reported in OM PRAKASH GUPTA v. RANBIR B. GOYAL 1 in support of his claim.
9. On the other hand, learned counsel for the defendant has submitted that the plaintiffs got knowledge about the possession of the defendant over the property from long prior to the filing of the suit. Thus even though temporary injunction was granted in the I.A. in the suit, that order was dismissed in the C.M.A. before the appellate Court. He further has contended that by virtue of Order VI Rule 17 C.P.C., once the trial is commenced, the question of amending the plaint would not arise at all. According to him the trial Court properly examined the matter including the question of assignment of the property to the defendant, by reason of which the I.A. is not maintainable and thereby the order passed by the appellate Court is sustainable and cannot be interfered with.
10. I have gone through the record. Mainly the trial Court dismissed the suit on the ground that in the circumstances of the case the suit was not maintainable without seeking the relief of declaration of title of the property. The trial Court did not make any discussion with regards to the genuineness of the gift deed. The interlocutory application and the corresponding order passed thereunder and the dismissal of the suit are only subject to the final disposal of the suit. Thereby those factors will not determine the main issues framed in the suit. Another important factor is that as the appeal has been pending, the judgment and decree passed by the trial Court have not become final.
11. Order 6 Rule 17 C.P.C. enjoins - 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. By virtue of the proviso thereunder once the trial of the case was commenced, the question of seeking for any amendment does not arise at all, but definitely this is subject to taking place of subsequent events during the proceedings of the suit.
12. In the decision cited above, it is clearly observed:
"Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties."
13. This decision makes it very clear that by virtue of taking place of subsequent events, necessary amendment can be carried out inspite 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.
14. Under the circumstances stated, it is advisable to carry out the amendment as prayed for in the interest of justice and thereby the order passed by the Court below is not tenable.
For the same reasons necessary amendments are to be carried out in accordance with law. Thereafter the appellate Court has to dispose of the matter on the basis of evidence adduced already without taking any steps for recording further evidence in the matter in accordance with the contentions of the plaintiffs' advocate in that behalf.
15. Accordingly, the order passed by the Court below is set aside and the Civil Revision Petition is allowed. Consequently I.A.No.11 of 2011 stands allowed. No costs.
16. Consequent upon the disposal of the C.R.P., miscellaneous petitions, if any, pending shall stand closed.
_________________________ G. KRISHNA MOHAN REDDY, J Date:26-11-2012