Andhra Pradesh High Court - Amravati
Gavara Venkateswara Rao, vs Gavara Chandrakantha Mani, on 23 December, 2024
APHC010155232024 IN THE HIGH COURT OF ANDHRA
PRADESH
[3311]
AT AMARAVATI
(Special Original Jurisdiction)
MONDAY, THE TWENTY THIRD DAY OF DECEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE MS JUSTICE B S BHANUMATHI
CIVIL REVISION PETITION NO: 941/2024
Between:
Gavara Venkateswara Rao, ...PETITIONER
AND
Gavara Chandrakantha Mani and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. G RAMA GOPAL
Counsel for the Respondent(S):
1. MAHADEVA KANTHRIGALA
The Court made the following:
BSB, J
2 C.R.P.No.941 of 2024
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, by the petitioner/1st defendant is directed against the order, dated 08.01.2024, allowing I.A.No.236 of 2023 in O.S.No.15 of 2016 on the file of the Court of II Additional District Judge, Amalapuram, filed by the plaintiffs under Order VI Rule 17 CPC and Section 151 CPC to permit them to amend the plaint schedule by correcting the extent of the properties and by deleting some of the items and by adding item Nos.62 to 71 in the plaint 'A' schedule and suitably amend the plaint valuation para.
2. Heard Sri G. Rama Gopal, the learned counsel appearing for the revision petitioner/1st defendant and Sri Mahadeva Kanthrigala, learned counsel for the respondents 1 & 2/plaintiffs 1 & 2. The parties shall hereinafter be referred to as the plaintiffs and defendants for the sake of convenience and clarity.
3. The case of the plaintiffs in the affidavit filed in support of the petition seeking amendment, in brief, is as follows:
(a) The plaintiffs 1 & 2 are mother and daughter. The suit was filed seeking partition of the plaint A & B schedule properties. At the time of filing of the suit, the 1st plaintiff showed total 65 items in plaint 'A' BSB, J 3 C.R.P.No.941 of 2024 schedule pertaining to the properties in Kapileswarapuram, Kothapeta, Palivela and Mandapalli villages. The entire properties shown in the plaint 'A' schedule are in the management of the 1st defendant and situated in four villages in two revenue mandals and in the names of eighteen (18) family members. The plaintiff was unable to get the entire information of the details of all the joint family properties. Hence, as per the information available as on the date of filing of the suit, the 1 st plaintiff showed 65 items in the plaint 'A' schedule. The defendants filed their written statement pleading that some items of the properties do not belong to the joint family. The 1st plaintiff made an elaborate enquiry and verified the revenue records of Adangals, 1B and A register of the properties managed by joint family and came to know that some items shown in the schedule do not exist at all in the name of the joint family members and some other properties belonging to the joint family were not added in the schedule. Item No.1 of the plaint 'A' schedule in R.S.No.481/1 shown as total extent of Ac.25.99 cents, but the actual extent is Ac.21.99 cents. In Item No.5, the extent was shown as Ac.0.52 cents but actual extent is Ac.1.52 cents. In item No.7, the extent was shown as Ac.2.47 cents, but the actual extent is Ac.1.47 cents. In item No.13, the extent was shown as Ac.4.82 cents, but the actual extent is Ac.3.62 cents, in item No.19, the extent was shown as Ac.3.19 cents but the actual extent is Ac.4.54 cents. In item No.22, the BSB, J 4 C.R.P.No.941 of 2024 extent shown was Ac.3.00 cents, but, the actual extent is Ac.1.70 cents.
In item Nos.36 & 39, the properties are in the name of the other family members and item Nos.52 & 53, the property stands in the name of the 3rd parties. Hence, these properties are to be deleted. In item No.63, the extent was shown as Ac.0.07 ½ cents but the actual extent is Ac.0.19 cents. In item No.64, the extent was shown as Ac.0.165 cents but the actual extent is Ac.0.135 cents. At the time of filing of the suit, the plaintiffs are unable to get the entire information regarding the entire joint family properties as some of the properties were not included in the schedule. Hence, those items are also to be included. The said properties have to be added in the schedule after deleting item Nos.36, 39 and 53 in the original schedule and rearrange the existing total items upto serial numbers 61 and items Nos.62 to 71 are to be added in the plaint schedule and also suitably amend paragraph relating to valuation of the properties and the court fee.
(b) The 1st respondent/defendant filed counter opposing the petition and mainly contending that admittedly, the counter and written statement were filed in the month of August 2016 which is more than 6 years back and thereafter, certain interlocutory applications were filed and enquiry was conducted and the issues were also framed and when the matter was posted for commencement of trial as a last chance, BSB, J 5 C.R.P.No.941 of 2024 surprisingly, the petitioners came up with similar application in I.A.No. 1001 of 2022 and after filing counter, the petitions were not pressed by the petitioners. The schedule properties shown in the said application were also disputed, and therefore, they again came up with the present application by modifying them without any proper explanation. The petitioners/plaintiffs are not entitled to make an application to get the plaint schedule amended at this belated stage, that too, adding more than double of the extent of the properties than what was originally shown. The petitioners are admittedly out of possession of the proposed properties and further, inclusion of the items changes the cause of action and also the nature of possession and in that perspective also, the present petition is not maintainable and liable to be dismissed.
4. On contest, the trial Court allowed the petition. The operative portion of the order reads as follows:
" .....hereby allows the application by permitting the petitioners/plaintiffs to make necessary amendments in the body of the plaint and 'A' schedule of the plaint by permitting them to amend extent of items 1, 5, 7, 13, 19, 22, 63 and 64 of plaint A schedule, by permitting them to delete items 36, 39, 52, 53 of plaint A schedule and by permitting them to add an extent of Ac.1-00 cents covered by S.No.117/3 of Kapileswara puram, Ac.0-22 cents, Ac.0-26 cents, Ac.0-49 cents, Ac.0-32 cents covered by S.Nos.57/5, 56/6B, 56/6A BSB, J 6 C.R.P.No.941 of 2024 and 57/4 of Mandapalli, Ac.0-26 cents, Ac.0-10 ½ cents, Ac.0- 06 cents, Ac.0-93 cents and Ac.0.99 cents covered by S.Nos.210/8, 210/7, 210/7, 210/12, 803/2A and 614/2 of Kothapeta as items 62 to 71 of plaint 'A' schedule."
5. Therefore, the aggrieved 1st defendant is before this Court.
6. In view of the facts and the rival contentions, it is profitable to refer to the legal position relevant to the relief sought in the petition. Order VI Rule 17 of the Code reads as under:
"Amendment of Pleadings.--- 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial."
7. The learned counsel for the petitioner submitted that the Supreme Court in Ajendraprasadji N. Pande and Anr Vs. Swami Keshavpradeshdasji N. and ors1 held that after framing of the issues, the trial commences and vehemently contended that the trial in the 1 AIR 2007 SUPREME COURT 806 BSB, J 7 C.R.P.No.941 of 2024 present case shall be considered as commenced as on the date of filing of the petition since the issues had been framed by then and that the trial Court ought not to have allowed the amendments without the petitioners/plaintiffs establishing that such amendments could not be taken in spite of due diligence exercised by them. He further submitted that there was seven years of delay after filing of the suit to file petition for amendment of the plaint and the same has not been duly explained and thus, the petitioners/plaintiffs failed to establish due diligence on their part. In this regard, he further submitted that the petitioners/ plaintiffs failed to state how and when the enquiries revealed the information relating to the proposed amendments and in the absence of such information, it cannot be treated that the petitioners discharged their obligation in the proviso to Order VI, rule 17 CPC to seek permission to amend the plaint.
8. On the other hand, the learned counsel for the respondents 1 & 2/plaintiffs submitted that the affidavit clearly explained the reasons as to why the amendment is needed after filing of the suit, i.e., there are many properties the details regarding which could not be procured at a time of filing the suit and the details of the properties as in the proposed amendments could be secured gradually after filing of the suit and the written statement and that is the reason for the delay and the same is BSB, J 8 C.R.P.No.941 of 2024 the reason for not being able to plea them at the time of filing of the application. He further submitted that since the nature of the suit is not changed and furthermore, all the properties required to be divided are unless included, the decree for partition cannot be granted, and so, it is necessary to permit the amendments. He further submitted that it is not only addition of properties but deletion of some properties which were found to be not joint family properties was also sought by way of amendment, and therefore, no mala fides can be attributed to the petitioners. He further placed reliance on the decisions of the Supreme Court in Vidya Bai Vs. Padmalatha2; Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited 3 and Rajkumar Gurawara Vs. S.K.Sarwagi and Co. Pvt. Ltd.4
(i) In Vidyabai and Ors. vs. Padmalatha and Ors (3 supra), it was held at para no.13 as follows:
"13. Reliance has also been placed by Ms. Suri on Pradeep Singhvi and Anr. v. Heero Dhankani and Ors. [(2004) 13 SCC 432.] Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order VI, Rule 17 of the Code of civil Procedure had no application. Reliance has also been placed by Ms. Suri on Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. [AIR 2006 SC 1647]. No doubt, 2 LAWS (SC)-2008-12-15 3 LAWS (SC)-2022-9-2 4 LAWS (SC)-2008-5-6 BSB, J 9 C.R.P.No.941 of 2024 as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side."
(ii) In Life Insurance Corporation of India (4 supra), it was held at para No.70 as follows:
"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, BSB, J 10 C.R.P.No.941 of 2024
(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,
(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.
BSB, J 11 C.R.P.No.941 of 2024
(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 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)".
BSB, J 12 C.R.P.No.941 of 2024
(iii) In Rajkumar Gurawara (Dead) thr. L.Rs. vs. S.K. Sarwagi and Co. Pvt. Ltd. and Ors. (5 supra), it was held at para No.5 as follows:
" 5. xx..xx.xx..xx.. .. .. ..
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of BSB, J 13 C.R.P.No.941 of 2024 prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."
The learned counsel further stated that though the trial commences after framing of the issues, there is no absolute bar preventing a party to amend the pleadings and since the proposed amendments are necessary and the petitioners have shown why they could not be asked earlier before commencement of the trial, the permission for amending the application was rightly granted by the trial Court. It is also pleaded by him that as on date, after the amendments were permitted, neat copy of the plaint had been submitted, additional written statement had been filed by the revision petitioner and PW1 had been examined in chief as well as cross by 02.12.2024 and now the affidavit of PW2 had also been taken on file on 09.02.2024 and the matter stands posted for cross- examination of PW2 on 26.12.2024 because the same was adjourned from the previous day as the Presiding Officer was on leave. Therefore, he contended that at this juncture, there is no need to interfere with the order of the trial Court.
9. In reply, the learned counsel for the petitioners submitted that this revision petition was filed much before commencement of the evidence of PW1 as it was filed on 27.03.2024, and therefore, the order impugned shall be independently examined.
BSB, J 14 C.R.P.No.941 of 2024
10. As can be seen from the affidavit of the petitioners, as noted above, the circumstances under which details of the properties which were not in the knowledge of the petitioners were duly explained. Therefore, the petitioners have established that in spite of due diligence, the amendment could not be taken up as required under the proviso to Order VI Rule 17 CPC. Moreover, in a suit for partition, all the partiable properties must be included for rendering complete justice. The trial Court has not committed any error or illegality in passing the impugned order. Therefore, it does not require any interference.
11. Accordingly, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
__________________ B.S BHANUMATHI, J 23-12-2024 RAR