Andhra HC (Pre-Telangana)
Nimmakayala Seetha, W/O ... vs Kothapalli Ramesh Kumar, S/O Sru ... on 23 December, 2014
Author: Nooty Ramamohana Rao
Bench: Nooty Ramamohana Rao
THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION NO. 2211 of 2014 23-12-2014 Nimmakayala Seetha, W/o Suryanarayana, Aged 61 Years, Occu:House-wife. R/o Ramanayyapeta, Kakinada, East Godavari District...Petitioners Kothapalli Ramesh Kumar, S/o Sru Durt\ga Raju, Aged: 58 Years. R/o Sudha Colony, Peddapuram, East Godavari District and another./...Respondents Counsel for the Petitioners:Smt N(P) Anjana Devi Counsel for the respondents: Sri pasam Srinivasa Reddy <Gist: >Head Note:L ?Cases referred: THE HONBLE SRI JUSTICE NOOTY RAMAMOHANA RAO CIVIL REVISION PETITION NO. 2211 of 2014 ORDER:
Plaintiff filed this revision challenging the orders passed in I.A.No.285 of 2014 moved by her in O.S.No.1580 of 2007 on the file of the I Additional Junior Civil Judge, Kakinada, under Order VI Rule 17 C.P.C for amendment of the plaint. The suit is filed for recovery of possession of land of an extent of Ac.0.18 cents lying on the western and northern side of the plaint schedule property which is shown in red colour in the plaint plan after ejecting the defendants there from and for mesne profits of Rs.18,750/- and also to grant future profits which may be worked out on a separate application. The suit is instituted on 31.10.2007. Along with the plaint, plaint schedule describing the suit property is filed together with a rough sketch. The case of the plaintiff was that, she acquired title and interest in the plaint schedule property through a registered settlement deed dated 26.08.1970 executed in her favour by her mother. It is set out in the plaint that land of an extent of Ac.7.00 lying in old survey no.384 corresponding to new survey no.539 of Samalkot Village was the joint family property of Sri Kothapalli Rama Rao and Sri Kothapalli Chakradharudu. When they partitioned, the southern half-Ac.3.50 cents-fell to the share of Sri Kothapalli Chakradharudu, Sri Chakradharudu disposed of his share of Ac.3.50 cents on different dates. On 10.07.1961, plaintiffs mother purchased from him Ac.1.00 of land lying on the northern side of his share. Out of this Ac.1.00 of land, land of an extent of Ac.0.75 cents was settled by the mother of the plaintiff under a registered settlement deed dated 22.02.1965 in favour of the plaintiff. The remaining land of an extent of Ac.2.50 cents was purchased by the plaintiff and her sister jointly under a registered sale deed dated 15.07.1964 from Sri Chakradharudu and his sons. The plaintiff and her sister have equal interest. Accordingly, they have acquired Ac.1.25 cents each. Ac.0.25 cents of land which was initially retained by the mother of the plaintiff is given gift by her to the plaintiff under a registered gift deed dated 26.08.1970. Thus, the plaintiff has acquired right, title and interest over Ac.2.25 cents while her sister has right, title and interest in Ac.1.25 cents. It is the further case of the plaintiff that the defendants have purchased Ac.0.75 cents of land on 17.07.1991 from Sri K. Rama Rao and sons. It is the case of the plaintiff that during the agricultural year 2003-2004, in the course of transplantation, the defendants encroached into the plaint schedule property on the western and northern sides. During summer of 2004, as per the advise of the village elders, the plaintiff got the measurements of her land and thus realized that the defendants have encroached land of an extent of Ac.0.18 cents and hence, suit is filed for their ejectment.
It is to be noted that the plaintiff filed I.A.No.149 of 2010 for appointment of an Advocate Commissioner for inspecting the plaint schedule land and to take measurements thereof. The learned Advocate Commissioner filed report before the Trial Court setting out that the boundaries to the plaint schedule land are not tallying with the ground realities and hence, returned the warrant. At this stage, the plaintiff has filed I.A.No.177 of 2012 on 03.02.2012 seeking amendment of the plaint. This I.A.No.177 of 2012 has been closed by the Court preserving liberty to seek amendment later on. At this stage, it is appropriate to notice that in the written statement filed in the suit, the defendants have disputed the correctness of the plaint schedule and the rough plan annexed to the plaint while denying any encroachment of land of Ac.0.18 cents of the plaintiff.
On behalf of the plaintiff, P.W.1 was examined. P.W.1 filed his chief affidavit into the Court on 19.07.2013 and he has been cross-examined on 30.07.2013. During the course of cross- examination, his attention has been drawn to the discrepancies with regard to the plaint averments, the plaint plan and the rough sketch annexed to the plaint. Chief affidavit of D.W.1 was filed into the Court on 25.02.2014 and D.W.1 was cross-examined on 12.03.2014. Thereafter, the suit was posed for arguments. At that stage, I.A.No.285 of 2014 is moved on 05.05.2014 seeking amendment of the plaint. It is this application which is opposed by the opposite side setting out that the said application is moved at a time when the suit is coming up for arguments and hence, it cannot be allowed. The defendants have also urged that the plaintiff is now seeking to fill up the gaps in her evidence and the plaintiff was not diligent at all. The defendants disputed the bonafidees behind the amendment.
I.A.No.285 of 2014 has been dismissed by the Court by its order dated 30.06.2014. Hence, this revision.
Heard Sri P. Satyanarayana, learned counsel for the petitioner and Sri Pasyam Srinivas Reddy, learned counsel on behalf of the respondents.
Order VI, Rule 17 C.P.C, as stood amended by the Amending Act, 2002, reads as under:
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.
It is true that 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, if such amendment is considered necessary for the purpose of determining the real questions in controversy between the parties. In view of the language of wide import employed in the main part of the rule, generally, Courts take a very lenient view and allow parties to amend their pleadings in an appropriate and suitable manner at any stage of the proceedings. Particularly, when the amendments are sought for prior to the commencement of the trial, unless gross prejudice is likely to be caused to the opposite side, the amendments of pleadings are liberally allowed. But however, it is apt to note, once the Trial of the suit commences, the entire situation gets governed by the proviso to Rule 17 of Order VI, C.P.C., wherein, it is set out that no application for amendment shall be allowed after trial is commenced. That is to ensure that there is no element of surprise when parties lead evidence. However, the exception curved out was that should the Court come to the conclusion that inspite of due diligence, the party could not have raised the amendment before the commencement of trial. Therefore, there is a fundamental difference in the approach that is needed to be adopted by the Court in the matter of permitting the pleadings to be amended once the trial has commenced. It should be remembered that the parties are required to lead evidence on the issues got framed and for resolution of the controversy raised in their respective pleadings. Once, they understand the case of each other, the parties would appropriately lead evidence. Therefore, once the Trial commences, a different set of considerations will have to weigh with the Court in allowing amendment of the pleadings. The Court must be satisfied for allowing the amendment of pleadings that inspite of due diligence exercised by the party concerned, the amendment sought for could not have been moved earlier.
Therefore, it is required of me to consider whether the petitioner/plaintiff herein is diligent enough or not.
As was already noticed supra, the plaint was presented to the Court on 31.10.2007. The written statement is filed on 12.12.2010. In paragraph 5 of the written statement, there is clear and categoric averment made that there was no necessity for the defendants to encroach on to the land of the plaintiff and that the alleged encroachment of land is absolutely incorrect. In paragraph 6, the inaccuracy of the plaint schedule is pointed out. It is also appropriate to notice that the Advocate Commissioner Smt. V. Annapurna who filed her interim report on 17.07.2012, has clearly brought out that the boundaries mentioned in the plaint plan and plaint schedule for Ac.0.25 cents of land are not tallying with each other. She also went on to observe that the boundaries mentioned in the suit document dated 26.08.1970 are not tallying with the land on the ground. Therefore, she felt that it is impossible to identify the land and measure the land and hence stopped execution of the warrant and returned the same. Thus, by 17.07.2012 the plaintiff is clearly in the know of the necessity for correction of the pleadings set out by her. It should also be noted that I.A.No.177 of 2012 was moved by he plaintiff seeking amendment of the plaint averments. That I.A was closed by the Court granting liberty for taking out such an application at a later point of time. Thereafter, without availing the said liberty, petitioner/plaintiff proceeded with the trial of the suit. P.W.1 filed his chief affidavit on 19.07.2013 and he was cross-examined on 30.07.2013 and D.W.1 was cross-examined on 12.03.2014 and long thereafter on 05.05.2014 and when the suit was posted for arguments, I.A.No.285 of 2014 is moved seeking amendment. It is, therefore, crystal clear that the plaintiff is not diligent in seeking amendment of the plaint averments and in particular, the plaint schedule and the rough sketch annexed to the plaint. The laxity shown by the plaintiff is incapable of being condoned. The amendment sought for now is in the nature of changing the complexion and the principal controversy in the suit.
It is appropriate to notice that the Advocate Commissioner in her interim report, while returning the warrant, has also pointed out that the boundaries mentioned in the title deed dated 26.08.1970 are also not tallying with the ground realities. Therefore, no useful purpose would be served in allowing the amendment of the plaint Averments at this stage.
In view of the proviso contained under Rule 17 of Order VI of C.P.C, the Trial Court has rightly rejected the application moved by the plaintiff seeking amendment of the plaint averments after Trial was concluded. Amendment if permitted at this stage, would cause grave hardship to the defendants. They perhaps, will have to reframe their defense and in such an event, evidence will have to be lead in by both parties all over once again. As it is more than seven years time has elapsed from the date the suit is instituted. Thus, looked at from any angle the amendment cannot be allowed at a belated stage.
For sheer lack of due diligence on the part of the plaintiff, I.A.No.285 of 2014 has been rightly dismissed by the Court. I, therefore, do not find any justification whatsoever to interfere with the exercise of jurisdiction carried out by the Trial Court in the matter.
Accordingly, this civil revision petition stands dismissed. No costs.
________________________________ NOOTY RAMAMOHANA RAO, J 23rd December, 2014