Andhra Pradesh High Court - Amravati
Mattukoyaa Nageswara Rao vs Nanduri Nagendram on 29 July, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition Nos.775 & 914 of 2019
COMMON ORDER:
The unsuccessful petitioners - defendants filed these revision petitions, assailing the orders, dated 05.02.2019, of the learned Senior Civil Judge, Mangalagiri, passed in IAno.1550 of 2018 in OS.no.26 of 2015 & IA.no.1551 of 2018 in IA.no.142 of 2015 in OS.no.26 of 2015.
1.1 The said applications are filed by the defendants under Order VI Rule 17 of the Code of Civil Procedure, 1908, read with Rule 28 of the Civil Rules of Practice for permission to amend the written statement and the pleading in IA.no.142 of 2015.
1.2 By the orders impugned in these revision petitions, the trial Court dismissed both the said applications.
2. I have heard the submissions of learned counsel appearing for the petitioners - defendants and of the learned counsel appearing for the respondents - plaintiffs. I have perused the material record.
3. The introductory facts are as follows:
The plaintiffs instituted the suit for partition. In the said suit, the defendants filed their written statement. They also filed IA.no.142 of 2015. During the pendency of the suit, the defendants filed the subject two Interlocutory Applications viz., IA.nos.1550 & 1551 of 2018. The first of the said two applications viz., IA.no.1550 of 2018 is filed for permission to amend the written statement by deleting the word 'notarized Will' and for insertion of the words 'unregistered Will, dated 10.01.2005', and permit to make consequential amendments. The second of the applications viz., IA.no.1551 of 2018 in IA.no.142 of 2015 was filed for permission to amend the pleadings in MSRM, J C.R.P.nos.775 & 914_2019 2 the afore-stated IA.no.142 of 2015 by deleting the words 'notarized Will' and insert in its place the words 'unregistered Will, dated 10.01.2005' and permit to make consequential amendments in the said IA.no.142 of 2015. The plaintiffs filed counters resisting both the said Interlocutory Applications. By separate orders, dated 05.02.2019, passed in both the IAs, the trial Court dismissed both the applications of the defendants. Hence, the defendants filed these two revision petitions.
3.1 In view of the commonality of the subject matter and the likeness of the questions involved, both the revision petitions are being disposed of by this common order.
4. The case of the defendants in support of their request for amendment of their pleadings in regard to the description of the Will by deleting the words 'notarized Will' and for insertion of the words 'unregistered Will, dated 10.01.2005', as stated by the 1st defendant in the affidavits filed in support of the applications, in brief, is as follows:
The defendants are father and son. The suit is filed by the plaintiffs for partition. The 1st defendant's father came to the 1st defendant on the death of his mother, and he served his father till his death, on 12.08.2005. His father executed an unregistered Will, on 10.01.2005, in a sound and disposing state of mind bequeathing the plaint schedule property in his favour. After the death of his father, 1st defendant became the owner of the said property. He is also in possession of the same. He executed a registered gift deed, dated 03.06.2011, in favour of his son, the 2nd defendant. While so, the plaintiffs got issued a legal notice, dated 12.12.2014, claiming that the father of the 1st defendant, Venkateswarlu, died intestate without executing any Will and that they being the daughters of Venkateswarlu are entitled to equal shares along with the 1st defendant. This 1st defendant gave instructions to his counsel to issue a reply notice by stating that his father executed an unregistered Will, MSRM, J C.R.P.nos.775 & 914_2019 3 dated 10.01.2005, in his favour. The 1st defendant's advocate issued reply notice, dated 23.12.2014. In the reply, it was mentioned that the father of this defendant executed a registered Will, dated 10.01.2005, instead of stating unregistered Will, dated 10.01.2005. It is a typographical mistake and not an intentional mistake. Further, after the suit is instituted, the 1st defendant instructed the advocate to prepare a written statement. At that time, the 1st defendant stated to his advocate that his father executed an unregistered Will, dated 10.01.2005, in his favour. However, in the written statement it was mentioned that the father of this 1st defendant executed a notarized Will, dated 10.01.2005, instead of mentioning that the 1st defendant's father executed unregistered Will, dated 10.01.2005. The said mistake is also a typographical mistake and not an intentional mistake. In view of the said mistakes committed by the then advocate of the defendants, the pleadings taken in the defence of the defendants are contrary to the fact that the father of the 1st defendant executed an unregistered Will, dated 10.01.2005; and, the said mistake caused great damage and injury to the defendants. Therefore, they filed both the present interlocutory applications for permission to amend the written statement as well as the pleading in the afore-stated IA.
5. Per contra, the case of the plaintiffs is this:
The allegations in the affidavit of the 1st defendant that his father came to him on the death of his mother and he served his father till his death, on 12.08.2005, and that his father executed an unregistered Will, on 10.01.2005, in a sound and disposing state of mind bequeathing the plaint schedule properties and that after the death of his father, he became the owner of the property and that he was in possession of the same and that he executed a registered gift deed, dated 03.06.2011, in favour of his son, the 2nd defendant, are all false. The further allegations that while instructing the advocate to issue a reply notice, 1st defendant instructed the advocate to state that his MSRM, J C.R.P.nos.775 & 914_2019 4 father executed an unregistered Will, dated 10.01.2005, and that by mistake, it was mentioned in the reply notice that his father executed a registered Will, dated 10.01.2005, and that the said mistake is a typographical and not an intentional mistake are false. The allegations in the affidavit of the 1st defendant that he gave instructions to the advocate to prepare written statement stating that his father executed an unregistered Will, dated 10.01.2005, and that instead of mentioning that his father executed an unregistered Will, dated 10.01.2005, it was mentioned in the pleadings of the 1st defendant that the father of the 1st defendant executed a notarized Will and that the said mistakes in the pleadings are typographical mistakes and unintentional are all false. Even along with the application filed for amendment of pleadings, the defendants have not produced the alleged Will alleged to have been executed by the father of the 1st defendant. The said aspect speaks volumes about the genuinity and existence of any such Will. No reasons much less valid reasons are stated in support of the reliefs claimed.
The father of the 1st defendant died intestate and the alleged Will, dated 10.01.2005, said to have been executed by the father of the 1st defendant in favour of the 1st defendant is a rank forged one and it is intended to avoid giving legitimate shares in the plaint schedule properties to the plaintiffs. The provisions of law mentioned in the IAs filed for amendment of pleadings have no application. The applications may be dismissed.
6. Learned counsel for the defendants submitted as follows:
The specific case of the 1st defendant is that his father executed an unregistered Will, dated 10.01.2005. According to him, after receiving the notice from the plaintiffs, he instructed his counsel to mention about the said Will in the reply notice but in the reply notice it was mistakenly mentioned that the Will is a registered Will though the date of the Will is correctly mentioned. Even at the time of drafting the written statement and pleadings MSRM, J C.R.P.nos.775 & 914_2019 5 in IA.no.142 of 2015, the 1st defendant correctly instructed the counsel by stating that his father executed an unregistered Will, dated 10.01.2005; however, once again by mistake in the written statement and in the pleadings in the said IA, it was mentioned that the Will as a notarized Will instead of mentioning that the Will is an unregistered Will. The 1st defendant's father executed a Will is the consistent case of the 1st defendant. There is also consistency in mentioning the date of the Will. The mistakes are only with regard to the description of the Will in the reply notice as registered Will and as notarized Will in the written statement as well as in the pleadings in the IA, though in fact the Will is an unregistered Will. After the pleadings are filed, the trial Court framed the issues. One of the issues is to the following effect:
'Whether the father of the 1st defendant executed a Will, dated 10.01.2005, in favour of the 1st defendant or not?' The trial Court dismissed the applications of the defendants for amendment of the written statement and the pleadings in IA.no.142 of 2015 stating that the defendants have taken three different versions and that the amendment applications are filed when the suit is coming for cross examination of PW1 and that they did not file the Will either with the written statement or along with the applications filed seeking amendment of the pleadings or even at the time of hearing of the applications filed for amendments of pleadings and that the said aspects reflect that the defendants' version lacks bona fides. However, the defendants are not properly advised. Subsequently, after filing of these revisions, the Will is filed before the trial Court along with a petition to receive the same on file. The said application is pending. In the said circumstances, the orders impugned are unsustainable. Hence, the orders impugned in these revisions may be set aside and the defendants may be permitted to amend their pleadings insofar as the description of the Will by deleting the words 'notarized will' and inserting the words 'unregistered Will, dated 10.01.2005'.
MSRM, J C.R.P.nos.775 & 914_2019 6
7. Learned counsel for the plaintiffs, while reiterating the case of the plaintiffs, which is already narrated supra, and while adverting to the contents of the counter of the plaintiffs, supported the orders of the Court below. He further forcefully contended as follows: - 'Till these revisions are filed, the alleged Will has not seen the light of the day. The Will is being sought to be filed admittedly after these revisions are filed, that too, with a petition to receive the same on file of the trial Court. As rightly held by the trial Court, three versions are projected by the 1st defendant with regard to the Will. In the reply notice it is stated that the alleged Will is a registered Will; in the written statement and in the pleadings in the IA of the defendants, it is stated that the alleged Will is a notarized Will. Now in the applications filed for amendment of their pleadings, the defendants came forward with a third version by stating that the Will is an unregistered Will, that too, without filing the alleged Will into the Court. The trial Court took note of the crucial facts. The facts and circumstances, create a genuine doubt about the existence of the Will till it was forged and fabricated recently before filing it into the trial Court, with a petition to receive the same on file. Obviously, the Will was not in existence as on the dates of reply notice, written statement and filing of the applications for amendment of the pleadings of the defendants. The suit is at the stage of cross examination of PW1. At that time, the theory that the Will is an unregistered Will was introduced by forging the alleged Will to deny the legitimate share of the plaintiffs in the plaint schedule property. Since the defendants are unsure of fabrication of a Will by forgery, they did not and could not take consistent stand. Hence, the applications are liable to be dismissed.'
8. I have given earnest consideration to the facts and submissions.
9. The defendants are seeking amendment of their pleadings in the written statement as well as their IA with regard to the description of the Will. In the MSRM, J C.R.P.nos.775 & 914_2019 7 reply notice got issued by the 1st defendant to the plaintiffs' notice, the Will said to have been executed by his father was described as a registered Will. Further, in the written statement of the defendants, the defendants stated that the 1st defendant's father executed a notarized Will, dated 10.01.2005, in favour of the 1st defendant. In the pleadings in the applications filed for amendment, they are now pleading that the Will is an unregistered Will, dated 10.01.2005. By the time the subject interlocutory applications for amendment of the pleadings of the defendants were filed, the suit is at the stage of cross examination of PW1. Even along with the said applications filed seeking permission to amend the pleadings, the defendants did not file the original Will or a copy of the Will into the trial Court. No reasons are forthcoming for not filing the Will either with the written statement or with the applications for amendments of the pleadings of the defendants though filing of the said Will is undeniably highly necessary to substantiate the contentions of the defendants. It is stated before this Court that after these revisions are filed, the defendants, for the first time filed an application before the trial Court along with the Will for receiving the same on file. The contention that the pleadings in the written statement and IA of the defendants were got drafted by their advocate merely by giving oral instructions and without production of the Will or a copy of the same cannot be believed for a moment. Had, either the Will, if any, or a copy thereof been produced before the counsel, at the time of drafting the reply notice or the written statement, the mistakes in describing the Will in the reply notice and the pleadings would not normally had occasioned. Will, being a crucial document for the defence of the defendants, should have been filed along with the written statement or at least along with the applications filed seeking amendment of pleadings of the defendants. The strong contentions of the plaintiffs, which require a relevant mention, are as under: "It is obvious that the Will was not in existence as on the dates of reply notice, written statement and filing of the applications for amendment of the MSRM, J C.R.P.nos.775 & 914_2019 8 pleadings of the defendants. When the suit is at the stage of cross examination of PW1, the theory that the Will is an unregistered Will was introduced by forging the alleged Will to deny the legitimate share of the plaintiffs in the plaint schedule property. Since the defendants are unsure of the Will that is yet to be fabricated and forged by them, they did not and could not take consistent stand.'
10. Further, the non filing of the Will into the trial Court even at the time of hearing of the applications seeking amendment of the pleading of the defendants is a circumstance that indicates that the defendants are not diligent.
11. Now, it is pertinent to refer to the proviso to Order VI Rule 17 of the Code, which reads as under:
"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."
12. It is also profitable to refer to the decision in VIDYABAI V/s. PADMALATHA1, wherein the Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the court's jurisdiction to allow an application for amendment is taken away there under unless the conditions precedent therefor are satisfied, and that before allowing amendment, the Court 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 and that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction 1 (2009) 2 Supreme Court Cases 409 MSRM, J C.R.P.nos.775 & 914_2019 9 and that unless the jurisdictional fact as envisaged therein is found to exist, the court would have no jurisdiction at all to allow the amendment.
13. Generally, on the grounds that amendment of pleadings can be permitted at any stage of the suit and that the amendments can be permitted to avoid multiplicity of proceedings, Courts are taking a considerate view in permitting amendments of pleadings, unless the Courts are constrained not to take a considerate view having regard to the facts and circumstances of the case, which reflect a clear and deliberate lack of diligence and when the facts & circumstances of the case lay bare conscious & deliberate conduct on the part of a party seeking amendment besides lack of diligence, which prevent the Court from showing any indulgence.
14. Reverting to the case on hand, it is no gain saying that this is a case, where the facts and circumstances reveal that the defendants are not diligent. The fact that the defendants failed to produce the alleged Will they intended to rely upon either along with the written statement or with the subject applications filed for amendment of their pleadings or even at the time of hearing of the said interlocutory applications, despite a serious contest by the plaintiffs that the father/testator died intestate also fortifies the said view. Hence, this Court holds that the defendants who lacked the required diligence, failed to make out valid and sufficient grounds to permit them to amend their pleadings.
15. For all the afore-stated reasons this Court finds that the Court below is justified in dismissing the applications filed by the defendants for amendment of their written statement and their pleadings in IA.no.142 of 2015 and that, therefore, the orders impugned in these revisions do not warrant interference.
16. In the result, the Civil Revision Petitions are dismissed. There shall be no order as to costs.
MSRM, J C.R.P.nos.775 & 914_2019 10 Miscellaneous petitions pending, if any, shall also stand dismissed.
_____________________ M. SEETHARAMA MURTI, J 29.07.2019 Vjl MSRM, J C.R.P.nos.775 & 914_2019 11 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition Nos.775 & 914 of 2019 VJL 29-07-2019