Andhra Pradesh High Court - Amravati
Vempati Rama Kotamma vs Oruganti Jayaprakash Reddy on 28 October, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.2073 of 2022
ORDER:
Plaintiffs in the suit filed the above revision against the order dated 20.09.2022 in I.A.No.1205 of 2022 in O.S.No.1 of 2014 on the file of Principal Junior Civil Judge, Macherla.
2. Plaintiff filed suit O.S.No.1 of 2014 against the defendants for perpetual injunction.
3. In the plaint, it was contended interalia that plaint schedule property, mud terraced structure bearing Door No.1-112 was constructed about 50 years back by the mother of plaintiff by name Telluri Lingamma and after her death, the schedule property devolved upon the plaintiff; that during the lifetime of Lingamma, she leased out the plaint schedule property to the father of defendants on a rent of Rs.160/- per year; that Lingamma died on 10.11.1994; that in the year 2004, father of defendants vacated the schedule property as it is in dilapidated condition; that plaintiff has been residing in Koppunuru village and taking advantage of it, defendants, who are boundary owners on Northern side of the schedule 2 property hatched a plan to occupy the schedule property; that on 26.12.2013 when the plaintiff was at the plaint schedule property, defendants came there and tried to occupy the schedule property and the same was resisted; that the defendants are proclaiming in the village that they are going to occupy the plaint schedule property and hence, the suit was filed for the relief stated supra.
4. Defendants filed written statement and are contesting the suit. Defendants denied title of plaintiff.
5. Pending the suit, plaintiff filed I.A.No.1205 of 2022 under Order VI Rule 17 r/w Section 151 of CPC to permit the plaintiff to amend the plaint for declaration of title and possession.
6. In the affidavit filed in support of said petition, it was contended interalia that Thelluri Kotamma, who is second wife of Thelluri Bhaskara Reddy, father of petitioner did not get her share in the schedule property and she illegally executed sale deed in favour of Iruvanti Satyanarayana and thus, the sale deed executed by Thelluri Kotamma in favour of Iruvanti Satyanarayana is invalid document; thus the 3 contentions of defendants are based upon void document and are baseless; that under these circumstances, plaintiff intended to amend the plaint seeking declaration of title.
7. Respondents filed counter and opposed the application. In the counter, it was contended interalia that petition is filed belatedly to drag the suit proceedings; that defendants filed written statement long back and the evidence of plaintiff and her daughter proved lawful possession and enjoyment of father and mother of defendants over the schedule property; that proposed amendment is introduced to fill up lacunas and the petitioner/plaintiff is not allowed to introduce new facts; that the affidavit is silent regarding the plaintiff's dispossession; that the plaintiff was cross examined on 01.04.2019 and further cross examined on 29.04.2019; that daughter of plaintiff was cross examined as P.W.2 on 10.06.2019; that plaintiff as P.W.1 and her daughter as P.W.2 pleaded that they are not in possession and enjoyment of schedule property in their chief examination, however in the cross examination, P.W.1 admitted that "For the past 30 years, the family of the defendants are residing in the suit schedule property. It is true by the date of filing of suit, the 4 mother of defendants constructed a house with two rooms in the schedule property. It is true the wife of second defendant is running a fair price shop in the said house. I filed the suit for recovery of possession from the defendants"; that proposed amendment is barred by limitation; that on 22.03.2022 the petitioner/plaintiff was recalled and marked Exs.A-4 to A-7 and she was cross examined; that P.W.2 was also recalled for further evidence and she was cross examined; that plaintiff reported no further evidence and the suit was posted for arguments and the Court heard arguments on either side, at that point of time, this petition is filed and prayed the Court to dismiss the petition.
8. Trial Court by order dated 20.09.2022 dismissed the application. Aggrieved by the same, the above revision is filed.
9. Heard Sri G.Elisha, learned counsel for revision petitioner.
10. Learned counsel for revision petitioner would submit that the trial Court initially granted injunction and in spite of injunction, respondents/defendants occupied some portion of suit schedule property and hence, the plaintiff filed the 5 application seeking amendment. He would also submit that the proposed amendment will not cause any prejudice to the respondents/defendants. Learned counsel relied on the judgment of the composite High Court of Andhra Pradesh in A.Krishna Rao Vs. A.Narahari Rao and others1.
11. Suit O.S.No.1 of 2014 was filed for injunction simplicitor. A perusal of the plaint filed along with revision would disclose that plaintiff got the property from her mother and she has been in possession of the property; that property was leased out to defendants' father and they vacated the same in the year 2004 as the schedule property is in dilapidated condition; that since the defendants tried to trespass into schedule property in December, 2013, suit was filed. However, defendants by filing written statement while denying the averments in the plaint, further contended about their title to the property and, also their possession over the plaint schedule property.
12. The evidence of plaintiff was closed and in fact, going by the averments in the counter, arguments were also heard. 1 2014 (6) ALD 258 6 Plaintiff was examined as P.W.1 and her daughter was examined as P.W.2 initially in April, 2019. In March, 2022 they were recalled and further examined. In fact, in the written statement defendants contended that plaint schedule property belonged to Bhadra Reddy; that mother of plaintiff Lingamma and one Kotamma are two wives of Bhadra Reddy and said Bhadra Reddy died in the year 1945; that in the year 1949 partition was taken place and in the partition Kotamma got the schedule property and in the year 1961, Kotamma sold the schedule property to I.Satyanarayana under a registered sale deed, who in turn sold the schedule property to defendants' father in the year 1975 etc., and that the schedule house is not available on the ground.
13. Thus, the amendment sought for by the plaintiff is post trial amendment. It is settled law that the Court shall consider pre-trial amendments liberally. However, post-trial amendments the Court must exercise its discretion and should see that whether the amendment is necessary for the purpose of determining the real controversy between the parties. If it finds that the parties could not have raised the issue in spite of due diligence before commencement of trial 7 and such discretion must be exercised by applying the judicial mind.
14. In the case on hand, amendment application was filed at the stage of arguments. The affidavit filed in support of the petition does not contain any explanation regarding delay. Written statement was filed long back immediately after filing of suit. Learned counsel for the petitioner/plaintiff in the lower court would contend that to avoid multiplicity of proceedings, amendment is necessary. Whereas, Learned counsel for revision petitioner would submit that in spite of injunction, defendants occupied the schedule property and hence, amendment petition was filed.
15. By way of proposed amendment, plaintiff sought different parts of the plaint to be amended. Plaintiff's intends to contend about two wives of Bhadra Reddy, filing of suit for partition, preliminary decree and no final decree, alienation of property by Kotamma in favour of I.Satyanarayana. This part of the amendment was sought to be introduced after entire evidence is completed and when the suit is coming for arguments. In fact, in the counter respondents contended 8 that regarding the admissions made by P.W.1 regarding their possession over the plaint schedule property for a quite long time and fair price shop being run in the plaint schedule property.
16. In Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi and Others2, the Hon'ble Apex Court considered T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Ors3, wherein the Apex Court declined to allow amendment on the ground of limitation.
17. In Ashutosh Chaturvedi's case, the Apex Court held at Para-15 thus:
"15. The only remedy which was, thus, available to the appellant might be to file a suit. But as the same itself being barred by limitation, we are of the opinion that the Court would not exercise its discretionary jurisdiction to allow the amendment of the plaint."
18. In Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Ors.4, the Hon'ble Apex Court laid the following guidelines to consider the prayer for amendment:
2
AIR 2008 SC 2171 3 (2004) 3 SCC 392 4 AIR 2022 SC 4256 = MANU/SC/1093/2022 9
70. Our final conclusions may be summed up thus:
i. Order II Rule 2 Code of Civil Procedure operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 Code of Civil Procedure is, thus, misconceived and hence negatived.
(ii) 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 Code of Civil Procedure.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) 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 and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(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, 10
(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 hypertechnical 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.
(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 11 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. (See Vijay Gupta v. Gagninder Kr. Gandhi and Ors., MANU/DE/2236/2022)".
19. Thus, in the light of the expression of the Hon'ble Apex Court, the amendment now sought by the plaintiff/petitioner, in the opinion of this Court is barred by limitation. In spite of defence in the written statement, plaintiff proceeded with trial. The present interlocutory application came to be filed after the plaintiff and her daughter were recalled and reexamined and that too when the suit is coming up for arguments. The proposed amendment causes prejudice to the respondents.
20. The proposed amendment is liable to be rejected in view of proviso to Order VI Rule 17 of CPC. The affidavit does not satisfy the scrutiny of due diligence test. P.Ws.1 and 2 were examined in the year 2019 at first instance and after recalling, they were examined in 2022.
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21. In J. Samuel and Ors. vs. Gattu Mahesh and Ors.5, the Hon'ble Apex Court while dealing with an application to amend the plaint on the ground of typographical error held thus:
"15. In the given facts, there is a clear lack of 'due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code."
22. In Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Ors.6, the Hon'ble Apex Court held thus:
"Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party;5
(2012) 2 SCC 300 6 (2008) 14 SCC 364 13
(iii) when allowing amendment application defeats the law of limitation."
23. In Vidyabai and Ors. Vs. Padmalatha and Ors.7, the Hon'ble Apex Court held thus:
"Proviso to Order VI Rule 17 of CPC, is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties."
24. In Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors.8, the Hon'ble Apex Court observed that some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment, which are:
(1) Whether the amendment sought is imperative for proper and 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 multiple litigation;7
(2009) 2 SCC 409 8 (2009) 10 SCC 84 14 (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 amended claims would be barred by limitation on the date of application.
25. As observed supra, in the case on hand, by filing written statement immediately after filing of the suit, defendants denied the title and possession of the plaintiff. Defendants pleaded about their right over the property 30 years prior to filing of the suit. The affidavit filed in support of the petition does not indicate regarding the date of plaintiff's dispossession. P.Ws.1 and 2 also admitted about defendants' possession over the plaint schedule property.
26. The scope of revision under Article 227 of the Constitution of India was considered by Hon'ble Apex Court in Surya Dev Rai vs. Ram Chander Rai and Ors. 9. The order of the lower is neither perverse nor amounts to failure to exercise jurisdiction vested with it. Hence, the order of the trial Court dismissing the application does not call for interference of this Court under Article 227 of the Constitution of India.
9 (2003) 6 SCC 675 15
27. Accordingly, the Civil Revision Petition is dismissed at the admission stage. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J 28th October, 2022 PVD