Andhra HC (Pre-Telangana)
K. Ram Reddy vs K. Kantha Reddy And Ors. on 24 June, 1997
Equivalent citations: 1998 A I H C 314, (1998) 3 CIVILCOURTC 162, (1997) 5 ANDHLD 98, (1997) 5 ANDH LT 603, (1997) 3 APLJ 255, (1998) 1 ICC 247
ORDER D.H. Nasir, J.
1. This Civil Revision Petition is directed against the order passed by the learned Additional District Judge, Ranga Reddy District, at Saroornagar, in I.A. No. 563 of 1996 in O.S. No. 48 of 1993 on 14-6-1996 refusing to grant permission to the plaintiff/petitioner to amend the plaint 'B' schedule by inserting Sy. Nos. 404, 414 and 417, situated at Atapur village, Rajendernagar Mandal, Ranga Reddy District and lands in Sy. No. 21, situated at Nandimusalaiahguda village, Charminar Mandal, Hyderabad District.
2. The petitioner before this Court filed O.S. No. 48 of 1993 for partition and separate possession of the suit schedule properties. The properties shown in Schedules A and B of the plaint were, according to the petitioner, their joint family properties and the same were agricultural lands. Item Nos. 5 to 8 of Schedule B lands and Sy. Nos. 404, 414 and 417 were purchased under an agreement of sale dated 15-1-1975 in the name of defendant No. 3 respondent No. 3 for and on behalf of the joint family and, according to the petitioner, since the date of purchase they were in joint possession and enjoyment of the said lands. The same were declared by respondent No. 3 in his declaration No. 6089/76 before the land ceiling authorities stating that the same were joint family lands and he was entitled to l/5th share therein. Respondent Nos. 1, 2 and 3 were also entitled to l/5th share each, according to the petitioner.
3. However, according to the petitioner, Sy. Nos. 404, 414 and 417 were inadvertently not included in the Schedule B properties of the plaint. Further, according to the petitioner, the 1st respondent with the help of respondent No. 6 started construction over the lands purchased under the agreement of sale dated 15-1-1975 and when the petitioner objected to the same, the respondents 1 and 6 informed him that they were raising construction in Sy. No. 414 which was not the subject matter of the suit. According to the petitioner, he realised on going through the plaint B Schedule properties that the said the said survey Nos. 404, 414 and 417 were not included in plaint B Schedule properties. According to him, this was inadvertently not done. The lands were in joint possession and enjoyment and that he was entitled to a share in it. The plaint was, therefore, required to be amended for the purpose of including these survey numbers in the plaint B Schedule.
4. Similarly, the land bearing survey No. 21 of Nandimusalaiahguda village was also inadvertently not included in the plaint B Schedule lands. These lands, according to the petitioner, were also in joint possession and he was entitled to a share in it. The petition was, therefore, made before the trial Court for amending the plaint for that purpose. However, the trial Court refused to grant the proposed amendment mainly on the ground that there was an inordinate delay in making the application for amendment of the plaint.
5. The proposed amendment is emphatically resisted by the respondents. The 6th respondent by filing a counter affidavit stated, apart from the ground of inordinate delay, that the lands covered by the proposed amendment did not belong to the petitioner; he was neither the owner nor possessor nor pattedar thereof and, therefore, there was no cause for including the same to the suit schedule properties. He further alleged that the application for amendment was made with a mala fide intention of protracting the proceedings. The respondent No. 6 thereafter deals with the ownership of the said lands in para 6 of his counter affidavit. According to him, there were two protected tenants of the said lands who had died leaving behind them their legal heirs and representatives and that after the death of the original protected tenants, their respective legal heirs purchased the said lands bearing survey No. 414 admeasuring Ac. 1.34 guntas situated at Attapur village. Mutation had also been done in the names of the purchasers and, therefore, according to respondent No. 6, they became absolute owners and exclusive possessors of the same. Further transactions in relation to the said lands have also been narrated in the counter affidavit. As regards other survey numbers, according to respondent No. 6, the petitioner's claim was false and baseless, and therefore, according to him the petition for amendment of the plaint was liable to be dismissed.
6. At the outset, I may state that the merits of the claim advanced by the petitioner in respect of the aforesaid survey numbers are not required to be looked into at the present stage. Only a prima facie satisfaction whether there is any substance in the claim advanced by the petitioner need be examined at this stage. Whether the nature and character of the suit is likely to change drastically on account of the proposed amendment and whether there was any mala fide intention on the part of petitioner to protract the proceedings by filing the amendment petition are the factors which are required to be looked into for the purpose of deciding whether the proposed amendment could be allowed or not. The question whether any prejudice is likely to be caused to the respondents is also to be gone into.
7. It appears that the learned trial Judge has erroneously gone into the merits of the question whether there was any truth or substance in the claim advanced by the petitioner by way of amendment, which was an exercise in futility at the present juncture, in my considered opinion. The mere fact that 34 guntas of land in Sy .No. 404 of Attapur village were purchased by the 1st respondent long after the partition and separate possession of the joint family properties took place makes it obligatory on the trial Court to decide the veracity of the same at the trial of the suit instead of accepting the contentions raised by the 1st respondent and throwing away or disbelieving the petitioner regarding the necessity of including the same in the suit schedule properties as joint family properties at this stage. I believe that it is not in order to take this approach towards an amendment petition. The only point which, according to me, necessitates a serious consideration is the allegation made by the respondents whether the amendment petition was made with a mala fide intention of protracting the present proceedings and whether the amendment petition was barred by limitation or by the principles of laches and delay.
8. The suit was filed in the year 1993 and the amendment petition was made in 1996. This delay by no means can be branded as an inordinate delay depriving the petitioner his right of seeking amendment of the plaint on a new fact allegedly revealed during the pendency of the suit. If the petitioner had already been aware of the same but deliberately and not inadvertently suppressed the fact from the Court with a mala fide intention of gaining any unlawful advantage out of the same, there would have been an ample justification in rejecting the amendment petition. But under the given circumstances, the colour of male fide intention cannot be attributed to the amendment sought by the petitioner. I am amply supported in taking this view by the decision of the Madras High Court in the case of T.P. Palaniswami v. Deivanaiammal, in which the learned single Judge expressed his opinion that the decision of the Court below declining to accept the explanation offered by the plaintiff for non-inclusion of the well earlier in the suit items pointing out certain commissions and omissions which, according to the Court below, would disentitle them from seeking the amendment at that stage. The learned single Judge found himself unable to appreciate and accept this reasoning of the Court below and went on to say that if the plaintiffs were aware of the existence of the well in the concerned survey number, it was highly improbable that they would have consciously and wilfully omitted to include the same in the suit items. It was further observed that negligence or carelessness, or belatedness need not be put against a party seeking amendment if the facts and circumstances of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same Us. The learned single Judge further observed that the rules of procedure are nothing but handmades of substantive law and justice and the intention must be to dispense justice in the real sense and pure technicalities at the level of procedure shall not stand in the way of the Courts to recognise the rights of parties which they were otherwise entitled to.
9. The situation before this Court in the present case is largely and substantially the same as in the above case before the Madras High Court and, therefore, I wonder why the same should not be applied to the facts of the present case.
10. As regards delay on part of the plaintiff in seeking amendments, in Suraj Prakash v. Raj Rani, , the Supreme Court came heavily on the High Court and observed that the trial Court, in exercise of discretion, allowed the amendment and the High Court in revision, refused to interfere. But the Supreme Court took into consideration the fact that in the view of the Courts below there was not such a total transformation of the nature of the litigation as to deny the prayer for amendment. The facts were substantially the same; the case of partnership was already present in embryonic form in the original plaint and multiplicity of suits would be avoided by grant of the amendment. The Supreme Court further observed that they were inclined to concede that if pressure of advocacy can win a weak case, success should have greeted Seita Vaidialingam. But when the position of law is so clear, when the jurisdiction of the Supreme Court is so exceptional and when the discretion exercised by the one Court and confirmed by another was not glaringly unjust or illegal, the chances of allowance of an appeal were obviously remote.
11. In paragraph 6 of the aforesaid decision, the Supreme Court observed that:
"6. The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya v. Maung Po Haung, AIR 1922 PC 249. All rules of Court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit".
12. Even in case of M. Naresh Kumar Reddy v. N. Ramamma, my learned brother Judge-Justice Mr. K.B. Siddappa held that the amendment could be allowed at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties. However, such amendments should not be based on new facts and new cause of action and that the amendment should not cause prejudice to the other side. It is further held that if the amendment amounts to merely a different or additional approach to the same facts the amendment was to be allowed even after expiry of the statutory period of limitation. These observations made in Naresh Kumar's case (4 supra) apply directly on the questions involved in the present case and, therefore, there is no reason as to why. the same should not be applied to the facts of the present case.
13. The learned Counsel for respondent No. 1 pressed into service the decision of this Court in the case of Shaik Peda Adam v. Shaik Adam, . In paragraph 11 of the said decision, the learned single Judge stated as follows:-
"11. In the judgments referred to above, parnalas (channels) for flowing water were constructed by the defendants in their properties and from time to time they were discharging water through the said parnalas into the properties of the plaintiffs and as such, each time when the water was being discharged, there was injury caused to the plaintiff and in that sense it was a continuing injury. But, in the instant case, there is a clear cut distinction as the channel was already constructed by the defendants in the land claimed by the plaintiffs as their own and the injury was complete when the channel was constructed. It is not that there is series of encroachments and illegal action of construction of channels time and again. The channel was constructed at a time and by a particular period. It is the existence of the channel, which is complained of and that is the dominating factor constituting a wrong, which is sought to be remedied and not the discharge of water therefrom. The relief is to remove the channel and the act complained of was complete as on the date of the construction of the channel, which was found to be existing on the date of the Advocate-Commissioner's inspection in the year 1984".
The principle emerging from the above observations cannot be applied to the facts of the present case because the date of knowledge could not be traced as far back as three years from the date on which the above petition for amendment was made as in the case before the High Court in Shaik Adam's case cited at 5 supra. In that case since the channel had already been constructed by the defendants in the land claimed by the plaintiffs as their own and the injury was complete when the channel was constructed. It was not that a series of encroachments and illegal action of construction of channels time and again had been resorted to. The channel was constructed at a time and by a particular period and it was the existence of the channel which was complained of and the same was the dominating factor constituting a wrong which was sought to be remedied and not the discharge of water therefrom. Evidently, the bar of limitation is not so distinctly and clearly made out in the present case by the respondents and, therefore, I am of the opinion that the above principle cannot be applied to the facts of the present case.
14. Considering the above facts and circumstances, I believe that the amendment petition deserves to be allowed and the same is hereby allowed. The impugned judgment and order of the lower Court is hereby quashed and set aside.
15. In the result, the CRP is allowed. However, with no order as to costs.