Andhra Pradesh High Court - Amravati
Bandi Padmaja Rani 2 Ots vs Nimmagadda Vijaya Rani 5 Ots on 16 August, 2019
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.Nos.2481 & 2479 of 2012
COMMON ORDER:
Both these civil revision petitions are directed against the order in I.A.Nos.603 and 602 of 2011 in O.S.No.58 of 2005 on the file of the Court of learned VIII Additional District & Sessions Judge, Vijayawada, dated 16.03.2012 respectively.
2. I.A.No.602 of 2011 in O.S.No.58 of 2005 was filed under Order VI Rule 17 C.P.C. to permit addition of petition schedule land therein, viz., a RCC building bearing Door No.51-1-1A along with an open site of Ac.0.11 cents or 532.4 sq. yds., in R.S.No.403/2, Ward No.33C, Old assessment No.39553A/1 with New assessment No.291731-G, Gundadala, Vijayayada, as Item No.8 to the plaint schedule as well as to permit necessary amendments in the plaint.
3. I.A.No.603 of 2011 in the same suit was filed purportedly under Order VIII Rule 6A C.P.C., raising a counter claim with reference to the above property.
4. Defendants 1 to 3 in the suit are the petitioners herein as well as in I.A.No.602 of 2011 and I.A.No.603 of 2011 referred to above. The 1st respondent herein as well as in the above I.As is the plaintiff, whereas the other respondents are defendants 4 to 8 respectively.
5. The 1st respondent laid a suit for partition and for division of plaint schedule property into five equal shares and to allot one such share to her.
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6. In the course of hearing, on behalf of the petitioners copies of plaint and written statement of the 1st petitioner herein are produced for reference of this Court.
7. As per the plaint averments the plaint schedule properties belonged to Sri late Bandi Koteswara Rao, who died intestate on 25.08.2001. Smt. Bandi Nagendramma is the wife of Sri late Bandi Koteswara Rao. The 1st respondent and the 6th respondent are the daughters while Sri late Bandi Sivaji/the 2nd respondent and Sri late Sambasiva Rao are the sons of this couple. The plaint averments are also that Sri Sivaji died on 24.04.2005 leaving behind respondents 3 to 7 being the wife, son and daughter respectively, whereas Sri Samba Siva Rao also died leaving behind the petitioners herein, who are the wife and the daughters respectively. It is further averred in the plaint that upon the death of Sri Bandi Koteswara Rao all the above parties succeeded to the plaint schedule property and that they are in joint possession and enjoyment of these properties..
8. The 1st petitioner, in the written statement filed by her, denied such claim of the 1st respondent herein, raising several contentions including the identity of certain items of the plaint schedule. With reference to the claim in the plaint that an extent of 1000 sq. yds., in R.S.No.378/3C at Gundala and house site in an extent of 338 Sq. Yds., in R.S.No.403/2 at Gunadala, gifted to the 1st respondent as Pasupu Kumkuma, the 1st petitioner specifically denied. R.S.No.403/2 to an extent of 338 Sq. yds. is the property concerned to the present matter and it is the defence of the 1st petitioner that this item was bequeathed to the petitioners 2 and 3 herein by Sri late Bandi Koteswara Rao, and thus she on behalf of her daughters has been managing this property where a 3 MVR,J C.R.P.Nos2481 & 2479 of 2012 house was constructed, as described above, as the petition schedule property.
9. It is the contention of the petitioners either in these revision petitions and was also in the trial Court that this item of property should also be included in the plaint schedule, in as much as it originally belonged to Sri late Bandi Koteswara Rao, who made an arrangement, as reflected in his letter dated 29.06.1991 regarding which he had executed a will that was registered at the instance of his sister Smt. Kodali Varalakshmamma, in favour of petitioners 2 and 3. Therefore, according to the petitioners, in order to avoid multiplicity of proceedings, in the light of the claim made by the 1st respondent in the plaint it is requested that this item of property be the subject matter of the suit.
10. The petitioners further referred to a suit for permanent injunction filed by the 1st respondent against Sri Bandi Sivaji and upon his death the legal heirs of Sri Bandi Sivaji, viz., respondents 3 to 5 were brought on record in O.S.No.3210 of 2004 on the file of the II Additional Junior civil Judge, Vijayawada. It is also stated by the petitioners that upon its dismissal by the judgment and decree dated 21.08.2009, she carried the matter in appeal in A.S.No.229 of 2009 on the file of the Court of learned II Additional District Judge, Vijayawada, where a compromise was entered into among these parties in Lok Adalat and obtained an award on 24.02.2010 in respect of this property by misrepresentation. It is also the contention of the petitioners that they were not parties to the above litigation at any stage and even though they made an attempt to implead themselves as parties to A.S.No.229 of 2009, their petitions were returned. Thus stating, the petitioners sought for the above relief with 4 MVR,J C.R.P.Nos2481 & 2479 of 2012 reference to this item of property against the 1st respondent/plaintiff and other respondents.
11. In these revision petitions only respondent Nos.1, 3, 4 and 6 appeared through their advocate and contested. Whereas it is represented on behalf of the revision petitioners, in the course of hearing, that notices to other respondents is unnecessary as they have been colluding with the 1st respondent. Thus notice was not taken out to other respondents. However, on behalf of respondents 3, 4 and 6 the fact of such alleged collusion is specifically denied.
12. It is the contention of respondents 3, 4 and 6 that addition of such item to the plaint schedule is not permissible in law and even otherwise such amendment was sought in the trial Court, after commencement of trial when the evidence on behalf of the plaintiff was closed. Thus, it is contended that such applications were filed in the trial Court only to protract the litigation unnecessarily even though the petitioners reserved their right to take necessary steps in respect of this item of property, as seen from the written statement of the 1st petitioner. While asserting that the property as well as the house in question, have been the absolute property of the 1st respondent to whom it was given away as a gift under Pasupu Kumkuma, which was constructed by her and has been in effective possession and enjoyment of the same according to her, addition of such property to the suit is totally uncalled for. Thus supporting the orders under revision that the proposed relief if granted to the petitioners it would cause any amount of prejudice as well as injustice to the 1st respondent, it is requested on behalf of these respondents to dismiss both the revision petitions.
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13. Now, the point for determination is - whether the property in question mentioned in the schedule in I.A.No.602 of 2011 in O.S.No.58 of 2005 be included as part of the plaint schedule property and the purported counter claim of the petitioners in respect thereof be permitted?
14. As seen from the respective pleadings of the petitioners and the 1st respondent herein, in the trial Court, both of them have referred to the existence of property in question and both of them traced title to it from Sri late Bandi Koteswara Rao. The 1st respondent did not mention this item in the plaint schedule since it is her assertion that it was given to her as a gift by her deceased father during his life time, in the shape of house site where she constructed a house and where she has been living. Referring to the earlier litigation as discussed supra in O.S.No.3210 of 2004 and A.S.No.229 of 2009, mentioned in the affidavit of the 1st petitioner herein in the trial Court, the 1st respondent is claiming that being in possession of the property right from 20.03.1990 onwards where she got constructed a building with her own funds in the year 1995 and enjoying it as a owner paying necessary property tax as well as electricity consumption charges, this property is not liable for partition among the parties to the suit.
15. The petitioners have set up a separate claim to this property by means of a bequest under a registered instrument bearing document No.1231/63 in favour of the petitioners 2 and 3 by Sri late Bandi Koteswara Rao. It is their version that the 1st respondent has been in possession of this property with their permission and in paragraph No.15 of the written statement, it is specifically pleaded on their behalf that they would take steps to evict the 1st respondent from this house.
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16. Thus, these parties have set up their claims in respect of this item of property.
17. The suit is filed for general partition of the properties mentioned in the plaint schedule by the 1st respondent against the petitioners and other respondents herein. In the above circumstances, as rightly contended for the 1st respondent, this property cannot be brought within the fold of this suit and for determination of such issues pending in between these parties in relation thereto. The cause of action, as set out in the plaint, is completely different than what is sought to be projected with reference to this property by the petitioners. Apparently, the relief in respect thereof for either of the parties, is elsewhere and not in this suit.
18. Though, the petitioners claimed that they have raised a counter claim with reference to this property in I.A.No.603 of 2011, the material papers filed along with C.R.P.No.2479 of 2011 did not include a copy of such petition or the nature of counter claim sought to be raised by them.
19. Strenuous contentions are advanced on behalf of the contesting respondents that the amendment sought is belated and in view of the proviso to Order VI Rule 17 C.P.C., the petitioners are required to prove that they were diligent in prosecuting the matter. When this attempt was made in the trial Court the suit was already part heard where the evidence of plaintiffs was closed. However, on behalf of the petitioners it is contended that mere delay in filing a petition under Order VI Rule 17 C.P.C for amendment of written statement by itself cannot be a ground to reject such relief and it is settled law that the Courts should be more liberal in permitting amendment of written statement than that of the plaint. Even otherwise according to the contention of the petitioners, the question of delay can be addressed by suitably awarding compensation by 7 MVR,J C.R.P.Nos2481 & 2479 of 2012 means of costs to the other side. While referring to order under revision it is further contended for the petitioners that learned trial Judge did not address the issue in proper perspective and when the question is whether such amendment is permissible or not, no finding as such on that aspect has been recorded. It is also contended for the petitioners that when specific contention was already raised in the written statement with reference to the property in question, it is an indication that they have been diligent in this respect. Thus mainly contending, it is requested to allow these revision petitions while pointing out that they were not parties to the earlier litigation and the trial Court unnecessarily had referred to such facts in the order under revision.
20. Reliance is placed for the petitioners in Pankaja and another v. Yellappa (D) by L.Rs. and others1, where in paragraph 12 it was observed as under:
"So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permit, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application."
21. Further reliance is placed in Sushil Kumar Jain v. Manoj Kumar & anr.2, where in paragraph 11 it was observed as under:
"It is equally well settled that in the case of an amendment of a written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed.1
AIR 2004 SC 4102 2 AIR 2009 SC 2544 8 MVR,J C.R.P.Nos2481 & 2479 of 2012
22. Further reliance is also placed for the revision petitioners in Suraj Prakash Bhasin v. Smt. Raj Rani Bhasin and Ors.3, in this respect.
23. Reasons are already assigned as to impropriety in seeking addition of the property in question as a part of the plaint schedule property. Going by the case set up in the pleadings by the revision petitioners, this property neither can become nor can be included as a part of partible estate belonging to Sri late Bandi Koteswara Rao. In such an event and also considering the fact that when the claim with reference to this property is contested by the 1st respondent, if at all the petitioners were so advised they could have raised a counter claim, if permissible in law, against the 1st respondent in their written statement itself. Mere averment that they have reserved a right to seek eviction of the 1st respondent from this property as such cannot be treated an appropriate substitute, if at all their contention is taken into consideration at its face value. The delay in presenting the petition under Order VI Rule 17 C.P.C., seems to be deliberate and designed. It did not reflect any diligence on the part of the petitioners nor their explanation in this context, is acceptable.
24. Therefore, for the reasons stated above, even though the order under revision is not presenting a situation, upon discussing the claims of both the parties in respect of this property either in terms of Order VIII C.P.C., or as to application of Order VI Rule 17 C.P.C., the contention so advanced on behalf of the petitioners has to be rejected, confirming the orders under revision. In I.A.No.603 of 2011 an order was passed on 3 (1981) 3 SSC 652 9 MVR,J C.R.P.Nos2481 & 2479 of 2012 16.07.2012 consequent to the order in I.A.No.602 of 2011 on the docket. Nonetheless, reasons are assigned above not to accept the claim of the petitioners in this respect. Consequently, no permission as such at this stage can be granted to present a counter claim by the revision petitioners in respect of the property in question.
25. In the result C.R.P.No.2481 of 2012 is dismissed.
26. In the result, C.R.P.No.2479 of 2012 is dismissed. There shall be no order as to costs.
27. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
_________________________ M. VENKATA RAMANA, J.
16th August, 2019 Js.
10 MVR,J C.R.P.Nos2481 & 2479 of 2012 HONOURABLE SRI JUSTICE M. VENKATA RAMANA C.R.P.Nos.2481 & 2479 of 2012 _____ August, 2019 Js.