Andhra HC (Pre-Telangana)
Ankam Govindamma vs Syed Shafeeullah on 27 June, 2018
Equivalent citations: AIRONLINE 2018 HYD 96
Author: U. Durga Prasad Rao
Bench: U. Durga Prasad Rao
THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO C.R.P No.1500 of 2018 27.06.2018 Ankam Govindamma..... Petitioner Syed Shafeeullah.. Respondent Counsel for Petitioner: Sri Y. Ashok Raj Counsel for Respondent : Sri T. Sreedhar <Gist: >Head Note: ? Cases referred: 1) 2018(1) ALT 420 =2018 (2) ALD 315 2) (2002)7 SCC 559 3) AIR 2005 SC 3353 4) (2017)13 SCC 705 5) 2015(6) ALD 713 HONBLE SRI JUSTICE U.DURGA PRASAD RAO Civil Revision Petition No.1500 of 2018 ORDER:
This CRP is filed by the petitioner/defendant aggrieved by the order dated 22.02.2018 in I.A.No.86 of 2018 in O.S.No.8 of 2012 passed by the Principal Junior Civil Judge, Deverakonda, dismissing the application filed by the defendant under Order VI Rule 17 CPC seeking to amend the written statement by adding the plea of adverse possession.
2) Heard.
3) At the outset I find no illegality or perversity in the order impugned. The Trial Court dismissed the application on two main observations, firstly, that the petition is a belated one in the sense, the suit was filed on 04.01.2012, written statement was filed on 09.04.2012 and the I.A.No.86 of 2018 seeking amendment of written statement was filed on 17.02.2018 at the stage when the suit was posted for cross- examination of PW.1 and the petitioner has not shown any bonafides as she has not submitted satisfactory explanation for the delay of nearly six(6) years in filing the petition. Secondly, it was observed that originally in the written statement the defendant took the plea that she is the owner of the suit schedule property and now she wants to introduce an inconsistent plea of adverse possession which is impermissible.
4) I have gone through the impugned order which is a reasoned one. As rightly observed by the Trial Court, proviso to Order VI Rule 17 CPC emphatically lays down that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of the trial. In the instant case, the reason submitted by the petitioner/defendant for the delay is that at the time of drafting written statement, she in fact instructed her counsel to take the plea of adverse possession also but by oversight such plea was not taken in the written statement and the said mistake could be detected only when they were preparing for the trial. It is a far-fetching and fallacious explanation. Every party and counsel are required to meticulously go through the pleadings prepared by them and then the party has to sign on the pleadings and submit to the Court. The plea of adverse possession being an important one, it is difficult to believe that the defendant and her counsel by oversight could not take that plea and further, they did not detect such omission before filing the written statement into Court. At any rate, the defendant has not shown a plausible cause to overcome the mandate of proviso to Order VI Rule 17 CPC.
5) In this regard, the decision of this High Court in Dhulipalla Srinivasa Rao v. Kandula Govardhan Rao and others , relied upon by the petitioner can be distinguished. In that case, the plaintiff filed the suit initially for cancellation of the sale deed executed by 1st defendant in favour of 2nd defendant. During pendency of suit, plaintiff sought for amendment of the plaint to add relief of declaration of title and recovery of possession. The Trial Court allowed the said petition. The defendant preferred CRP No.433 of 2016, wherein a learned Judge of this Court dealt with the aspect as to whether amendment of plaint cannot be permitted on the ground of delay. Relying upon the judgment of Apex Court in Sampath Kumar v. Ayyakannu , the learned Judge held that on the ground of mere delay, however long it may be, an application for amendment cannot be rejected provided the facts of the case warrant allowing of the amendment. In Sampath Kumar2, the Apex Court allowed the amendment sought for about 11 years after the institution of the suit on the ground that the plaintiff in that case was not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as were pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction which was pending. Thus it would appear, the Apex Court tested the amendment petition on the touchstone of whether or not a separate suit for the same relief and on the same facts as mentioned in the amendment petition is barred by limitation. If answer is negative, the Apex Court opined, the amendment could be allowed to avoid multiplicity of proceedings.
There is no demur about the aforesaid ratio. However, it must be noted, Sampath Kumar2, appeared to have been decided without reference to the amended provision of Order VI Rule 17 CPC. It is to be noted that with a view to shorten litigation and speed up the trial of cases, Order VI Rule 17 CPC was omitted by Amendment Act, 46 of 1999. The prominence of the said rule was such that there was hardly a suit or proceeding where this provision had not been used. Its omission therefore created commotion leading to protest in the legal community. In that view, this rule was restored in its original form by Amendment Act 22 of 2002 with a rider in the shape of proviso limiting the power of amendment to some extent. Order VI Rule 17 CPC now reads thus:
Rule 17. 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 is spite of due diligence, the party could not have raised the matter before the commencement of trial.
The new proviso lays down that no application for amendment shall be allowed after commencement of the trial unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before commencement of the trial. Whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. The Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India , observed thus: Para 26: Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.
So with the amendment of Order VI Rule 17 CPC and introduction of proviso, the petitioner seeking amendment after commencement of trial shall, convince the Court that inspite of due diligence, he could not have raised the matter before commencement of trial. So in my considered opinion, the yardstick for considering the amendment petition filed after commencement of trial is not only whether a separate suit on same facts and for same relief is not time barred as laid down in Sampath Kumar2, but also whether the petitioner could show plausible cause that inspite of due diligence, he could not raise the matter before commencement of the trial. So to sum up, the amendment petition filed after commencement of trial no doubt can be considered, provided, the petitioner could establish that inspite of exercising due diligence he could not file the petition before commencement of the trial and a separate suit on same cause of action for the same relief could be maintainable. In the instant case, as already observed, the petitioner could not show any plausible cause for the inordinate delay. Hence the petition merits no consideration.
6) The next lacunae in petitioners case is that the plea of adverse possession, which was sought to be taken through the amendment is mutually inconsistent with the original plea of title setup by the petitioner/defendant in her written statement by way of purchase of the suit property. In Dagadabai (dead) by LRs v. Abbas , the Apex Court observed thus:
Para 18: In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff. A learned Judge of this Court in Kasa Muthanna and others v. Sunke Rajanna and others , has opined that having pleaded title, it is not permissible for the defendant to plead adverse possession as both pleas are mutually inconsistent. In view of the aforesaid case laws also, the petition cannot be allowed.
7) Accordingly, this C.R.P is dismissed.
As a sequel, miscellaneous petitions pending, if any, shall stand closed.
_________________________ U.DURGA PRASAD RAO, J Date: 27.06.2018