Andhra Pradesh High Court - Amravati
S Anuradha vs Goluguri Lakshmi Narayana Reddy on 7 February, 2023
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.87 of 2023
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, is filed challenging the orders, dated 02.11.2022, dismissing I.A.No.616 of 2020 in O.S.No.363 of 1998 on the file of the Court of Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Tadepalligudem, filed under Section 26(2), (4) of the Specific Relief Act, 1963, and Order 2 Rule 2 CPC read with Rule 28 of the Civil Rules of Practice read with Section 151 CPC seeking the following prayer:
"For the reasons stated in the accompanying affidavit the petitioner No.3/plaintiff No.3 respectfully prays the Hon'ble Court may be pleased to permit the rectification of the instrument to cure the fraud or mistake so as to express the intention of the parties thereto only and to permit to amend the plaint for additional claim under the Specific Relief Act under Section 26(2), (4) in respect of wrong recitals at south boundary of defendant Nos.1 and 2's title deed in Ex.A18 and also the recital of north boundary of petitioner's title deed in Ex.A12 in schedule-IV of property as there will not be any prejudice caused to the rights acquired by the parties thereto as there is no change in measurements and extents of the property and the same is essential in adjudication of my whole case in the interest of justice or else petitioner will suffer irreparable loss and damage which can't be compensated at a later date and to grant orders for the following amendments in the plaint.2
BSB, J C.R.P.No.87 of 2023 Consequential amendments (under Rule 28 of Civil Rules of Practice)
1. To add the following para 11 C, after para 11 B:
"11C. The intention of the Ex.A-18 document is for a transfer of property for 281.3 sq. yards including North side rajaveedhi, in RS No.120 in between the respondents 1 & 2 and their vendors. Whereas it being a deed of our north boundary land, a fraud is played to encroach my site with a south boundary recital as "panta bodi" and I am entitled, as a third party effected, to seek for the remedy of rectification of their south boundary recital instead of "panta bodi" as "RS No.121/1" through courts of equity.
And In petitioner title deed Ex.A-12 also the north boundary recital, of iv schedule "panta bodi" is a misnomer of "aari cheruvu neeti valu" which is replaced with an altogether through a different course bodi through my site and it is the unfilled channel out of the channels from culverts No.5 & 6 of midlevel canal that passes through north of Pentapadu.
In view of the fraudulent south boundary recital "panta bodi" in the respondents document and also of the mistake of North boundary recital as "panta bodi" in my document Ex.A-12; a direction for rectification of the wrong recital in Ex.a-12, iv schedule North boundary recital, instead of "panta bodi" as "RS No.120" is essential in the interest of justice.
II. To add the valuation of the relief, para 13(a2), (a3) below para 13(a1) "13(a2) The relief of rectification of north boundary recital in Ex.A12 On the cost of the site at the time of registration Rs.6000/-
¾ of 6000 is 4500, a court fee of Rs. 381/-
13(a3) The relief of rectification of south boundary recital in Ex.A-18 On the cost of the site at the time of registration Rs.4500/-
¾ of 4500 is 3,375, a court fee of Rs. 291/-
(a court fee of Rs.672/- under relief 13 (a2, a3) is being paid herewith under Schedule-1, Art 1C of APCF & SV Act) Rs. 672/-
III To add the prayer 14(a1), (a2) below 14 a 14(a1) For the order of rectification of north boundary recital in Ex.A12 in iv schedule in place "panta bodi" as "RS No.120".
14(a2) For the order of rectification of south boundary recital in Ex. A-18 in schedule in place of "panta bodi" as "R.S.No.121/1". 3
BSB, J C.R.P.No.87 of 2023 2(a). The suit is filed for the following reliefs:
(a) For a declaration that the plaintiffs is the owner of the plaint schedule property with absolute rights and for consequential vacant possession of the same.
(b) For a mandatory injunction directing the defendants to remove all constructions in the plaint schedule property.
(c) For a permanent injunction restraining the defendants, their persons, representatives, followers, agents and their allies from interfering with the plaintiff's possession of the plaint schedule property in future at any time (C1) A direction to quash the permission accorded to defendants 1 & 2 by Grama Panchayat, Pentapadu dated 30-4-1997 under the subject 40 and grant costs of this petition.
(As per order in I.A 2343/2003 dated 20-10-2003)
(d) For costs Under Section 35, 35(a)&(b)under Order 20 (a) CPC
(e) For all or any other reliefs which the Hon'ble court deems fit in the circumstances of the case."
(b) Originally, the suit was filed by the 1st petitioner and subsequently, the 2nd and 3rd petitioners were added as legal representatives of the deceased 1st petitioner. The suit was filed alleging that the defendants have been highhandedly grabbing the plaint schedule site situated beyond the northern boundary and the recital in the title deed of the plaintiff marked as Ex.A12 which is part of the site of the 1st plaintiff in R.S.No.121/1 to an extent of 64 ½ cents vacant site which, according to the plaintiff, is in his possession, but the defendants were trying to interfere with the possession of the plaintiff under the guise of document marked as Ex.A18, which the plaintiff describes it as a fraudulent document, wherein the southern boundary recital is mentioned as "panta bodi".
The petitioners further contended that the predecessor-in-title of the defendant, in Ex.A16 document, recited the southern boundary 4 BSB, J C.R.P.No.87 of 2023 as "naa taluku bhoomi", meaning thereby, the land belonging to the vendor of the predecessor-in-title of the defendants' site. The petitioners claim that the same is illegal and not acted upon since no one can convey a better title than what he has. In this regard, it is further contended that the same vendor executed a sale deed in favour of the plaintiff describing one of the boundaries as "naa taluku bhoomi", and therefore, no property is left for the vendor to convey the same to the defendants. It is also the case of the petitioners that the northern boundary and the recital of the title deed in Ex.A12 as "panta bodi" is a mistake which continued unnoticeable and without being given much attention. The petitioners further contended that the advocate commissioner filed a report on 18.08.2003 indicating the area "N M M1 N1 N" to an extent of 63.77 sq. yards shown in the plan is an encroached part and the measurements were also given therein. Thus, it is clear that the northern boundary recital in the title deed of the plaintiff is a mistake and misnomer. But the plaintiff has shown the plaint schedule property beyond the northern boundary and the site as 'panta bodi'. However, at the time of filing of the suit and also petition seeking amendment of the plaint, the sole plaintiff was not advised on this issue, but it was noticed just while assisting the trial Court to come to a just conclusion. Therefore, petitioners 2 & 3 contend that they are advised to seek necessary rectification of the 5 BSB, J C.R.P.No.87 of 2023 recitals in relation to the boundary in the title deed of the plaintiffs as well as defendants to meet the ends of justice and to avoid further multiplicity of litigation. Therefore, the petitioners filed I.A.No.1382 of 2019 under Order VI Rule 17 CPC. But the same was dismissed, and aggrieved thereby, C.R.P.No.3041 of 2019 was filed and the same was also dismissed. Hence, this petition is filed to agitate the case of the petitioner under Order 2 Rule 2 read with Section 26(2) and Section 4 of the Specific Relief Act to meet the ends of justice.
3. The petition was opposed by filing a counter of respondents 1 & 2 stating that the petition is not maintainable and is barred by limitation and also stating that as many as nine (9) witnesses were examined on behalf of the plaintiffs and (32) documents besides Exs.C1 & C2 were marked on behalf of the plaintiffs and that two witnesses were examined on behalf of the defendants and thereafter, the suit stood posted for argument on several dates, i.e., on 07.08.2019, 09.08.2019, & 14.08.2019. But arguments were not advanced by the petitioners. Later, petitions in I.A.1234/19, 1235/19 and 1236/19 were filed for reopening of evidence and recalling witnesses and to receive the documents and all those petitions were allowed on 19.08.2019 and the matter has been posted for evidence on 21.08.2019, as the suit is of old being instituted in the year 1998. But the 3rd petitioner did not turn up 6 BSB, J C.R.P.No.87 of 2023 for examination on 21.08.2019 and an adjournment was sought by filing petition and thereafter, on allowing such petition, the case was posted to 26.08.2019 and thereafter, petition for amendment of the plaint was filed. The respondents further stated that the application was filed on 07.04.1998 and the affidavit of PW1 was filed on 07.12.2005 and PW1 was partly cross-examined on 24.01.2006 and later PW2 was cross-examined on 31.08.2019 and the same was completed on 01.09.2009 and later, other witnesses were examined. According to these respondents, the suit has undergone several adjournments at the instance of the plaintiffs and after 21 years of litigation, an amendment of the plaint was sought. The respondents further referred to the evidence, oral and documentary, regarding the boundary in dispute, but the amendment sought totally provides a different cause of action against the original pleading and so the proposed amendment is not maintainable particularly, when the amendment changes the contours of litigation and introduces a new case. It is also contended that the petitioners failed to prove that despite due diligence, they could not have taken these amendments before commencement of trial and since the petition was filed at a belated stage with an oblique motive, the petition is liable to be dismissed.
4. The petitioners filed a reply to the counter of respondents 1 & 2 denying the contents of the counter and reiterating their case as 7 BSB, J C.R.P.No.87 of 2023 in the petition and stating almost the arguments advanced in the suit. Therefore, they are not re-stated here.
5. After hearing both parties, the petition was dismissed by the trial Court more particularly in view of the fact that the earlier petition filed with the same relief sought but under a different provision i.e., Order VI Rule 17 CPC vide I.A.No.1294 of 2019 was dismissed on merits and the same has been confirmed in the revision filed before the High Court in C.R.P.No.3041 of 2019.
6. Having been aggrieved by the same, this revision petition is filed. The 3rd petitioner is appearing for the 2nd petitioner as counsel and has shown herself as 7th respondent in the revision petition and the original plaintiff/1st petitioner who died pending the suit is shown as 6th respondent. Respondents 1 to 5 are respondents/defendants.
7. Heard Smt. Udaya Sri Mallidi, learned counsel appearing for the revision petitioner and Sri Mangena Sree Rama Rao, learned counsel for the respondent No.2.
8. Learned counsel for the revision petitioner/plaintiff No.2 submitted that the prayers earlier sought under Order VI Rule 17 CPC may be similar to the reliefs sought now in the petition, but the relief was not earlier sought under Section 26 of the Specific Relief Act and under Order 2 Rule 2 CPC which is also pointed out by the 8 BSB, J C.R.P.No.87 of 2023 High Court in the order in C.R.P.No.3041 of 2019, and therefore, to avoid multiplicity of litigation and in the interests of justice, it is necessary to permit the reliefs which can be sought at any stage of the proceedings as mentioned in the provision itself.
9. Learned counsel for the respondents 1 to 5 vehemently opposed the petition stating that though the provision of law is different, the very same averments and the very same prayer was claimed under Order VI Rule 17 CPC and the same has been dismissed on merits by the trial Court and confirmed by the High Court, however, taking advantage of the one observation of the High Court, while passing the order that this relief is not the one claimed under the provisions of the Specific Relief Act, the petition before the trial Court was again filed and just to delay and protract the case which was filed way back in the year 1998 and moreover the matter has been posted many times for arguments.
10. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Erach Boman Khavar v. Tukaram Sridhar Bhat & Others1, wherein it was held that the principle of res judicata is not applicable between the two stages of the same litigation unless there is adjudication on merits. There is no dispute about the legal proposition. The endeavor of the petitioner in placing reliance on this decision is to submit that the 1 AIR 2014 SC 544 9 BSB, J C.R.P.No.87 of 2023 earlier petition was decided under Order VI Rule 17 CPC, whereas the present petition is to be decided under Section 26 of the Specific Relief Act and Order 2 Rule 2 CPC which are the cited provisions. Learned counsel also placed reliance on the decision of the Supreme Court in Gulabchand Chhotalal Parikh v. State of Gujarat2 in support of her contention that res judicata does not apply to the facts of the present case. He further relied on a decision in U. Govinda Rao and others v. Government of Andhra Pradesh and another3 in support of her contention that the relief can be molded to suit the requirement of rendering justice. The decision in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another has been relied in support of the propositions that govern granting or refusing the prayer for amendment of pleadings. The decision of the Madras High Court in Sargunam @ Mahalakshmi v. Narayana4 was relied on in support of the contention that the relief can be granted to suit the pleadings and the evidence available on record.
11. Learned counsel for the respondent placed reliance on the decision in Vemuri Ramesh Babu v. Vemuri Mariyamma 5 in support of the contention that the principle of res judicata would apply, as set out in Section 11 of CPC, even two successive 2 (1965) 2 SCR 547 3 2002(1) ALD 347 4 S.A.No.246 of 2006 decided on 25.03.2011 (Madras High Court) 5 (2022) 1 ALT 138 10 BSB, J C.R.P.No.87 of 2023 applications in the same suit depending on their categorization as set out in paragraph 13 of Arjun Singh v. Mohindra Kumar and others, where there was determination of an issue on merits in the first application.
12. Since the case has not been argued taking aid of Section 26 of the Specific Relief Act, the earlier petition was not decided in the light of the said provision, but that does not mean that every time, on finding a new ground which could have been taken initially/ earlier, the petitioners can take the same relief time and again based on the very same facts and circumstances. The relief claimed and the facts stated in the previous petition and in the present petition are in toto one and the same, except the provision of law cited. Since these provisions were very much available to the petitioners even by then to seek aid in support of the reliefs claimed, yet failed to do so, they cannot entitle the petitioners to claim again the same relief under different provisions of law under the guise of interest of justice or avoiding multiplicity of proceedings.
13. Though Section 26 of the Specific Relief Act provides amendment of plaint at any stage of the proceedings, the discretion given is not unbridled and cannot be used as a tool to seek the relief at any time if one can take it before, yet does not take without any reason, and thereafter at the wish and whims of the party, at 11 BSB, J C.R.P.No.87 of 2023 the fag end of proceedings stating that it can be allowed at any stage cannot be allowed. Though Order VI Rule 17 CPC and Section 26 of the Specific Relief Act operate in the same field but with some difference, both must be read together in harmony. The proviso to Order VI Rule 17 CPC keeps a rider on exercise of such right of seeking amendment of pleading at a stage subsequent to commencement of trial. No such rider is provided under Section 26 CPC. The object behind Section 26 is to avoid multiplicity of proceedings and to render justice. But that does not mean a party can file it at any stage without seeking such relief at an earlier stage though it could have been exercised. Law is never meant to aid a party who is negligent or passive. Every area of discretion is always guided by the principles of judicious approach. Therefore, the provision under Section 26 of the Specific Relief Act cannot be read to mean that though the petitioner, like in the present case, has got ample opportunity of seeking such relief at a prior stage failed to do so and at the fag-end can approach and seek the relief, that too, when the same relief was once declined after thorough examination on entitlement at that current stage. Though the parameters under Order VI Rule 17 CPC in strict sense may not be applied to Section 26 of the Act, the same can be taken as aid while exercising the discretion for examining the relief to be granted under Section 26 of the Specific Relief Act. As such, considering all these facts and 12 BSB, J C.R.P.No.87 of 2023 circumstances, the petitioners have no merit and the trial Court has rightly declined the relief. Since the necessity to incorporate the amendment has already been exclusively dealt with in the previous petition, it is not necessary again to discuss the same in the light of the foregoing discussion.
14. In the result, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B. S. BHANUMATHI, J 07-02-2023 RAR