Andhra Pradesh High Court - Amravati
Order vs Petition Under Article 227 Of The ... on 18 July, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.3854 of 2019
ORDER:
Plaintiffs before the trial Court filed this Civil Revision Petition under Article 227 of the Constitution of India assailing the order dated 09.12.2019 of learned Principal Junior Civil Judge-cum-Judicial Magistrate of First Class, Puttur in I.A.No.1663 of 2019 in O.S.No.73 of 2013.
2. Respondent herein is the defendant in the suit.
3. Smt. K.Tulasi Durgamba, learned counsel for revision petitioners and Sri K.Sreedhar Murthy, learned counsel for respondent submitted arguments and cited legal authorities.
4. Point that falls for consideration is:
"Whether the impugned order dismissing a prayer for amendment in the plaint occasioned failure of justice requiring interference?
POINT:
5. O.S.No.73 of 2013 is a suit filed by five plaintiffs as against one defendant seeking for declaration of title and rights 2 Dr. VRKS, J C.R.P.No.3854 of 2019 over certain immovable properties with a further prayer for mandatory injunction for removal of the structures that were erected in certain portions of plaint schedule properties and for recovery of possession and for costs and such other reliefs.
6. Along with the plaint a schedule of properties is annexed and it depicts 'A' schedule, 'B' schedule, 'C' schedule and 'D' schedule. It is stated that 'C' schedule is part of 'A' schedule. It is also stated that 'D' schedule is part of 'B' schedule. Be it noted, for all the schedules there are definite boundaries that are given on all four sides and all these properties are shown as in Survey No.233/4 of K.M.Agraharam Village of Chittoor District. Defendant filed a written statement. Issues in the suit were settled, trial commenced and evidence on both sides was recorded. It is thereafter plaintiffs moved I.A.No.1663 of 2019 in O.S.No.73 of 2013 under Order VI Rule 17 and Section 151 C.P.C. Plaintiffs moved this application stating that they have claimed their title in the suit tracing their title up to 1966 to Sri Jalli Subba Reddy and thereafter the title stood transferred in favour of Smt. R.S.Vanaja under a registered sale deed dated 30.09.1999 and thereafter from them the 1st plaintiff purchased the property under a registered sale deed dated 10.02.2003. It 3 Dr. VRKS, J C.R.P.No.3854 of 2019 is stated that the property that is available under all these registered documents is in Survey No.233/7. However, by a clerical mistake in the plaint it was printed as Survey No.233/4. Seeking permission to amend that the application is filed. Beneath the prayer portion of the petition the consequential amendment that is to be carried out in the plaint in terms of Rule 28 of Civil Rules of Practice is also printed and the learned counsel for plaintiffs signed all of them. Respondent/defendant in that application filed a detailed counter stating that it is six years after filing of the suit they woke up and the petition does not disclose any due diligence on their part. It further mentioned that if this application is allowed, it would change the nature of the suit and the relief prayed for and would cause prejudice to the interest of the defendant. This application is filed after commencement of trial and the law does not permit any amendments after commencement of trial. That the petition does not contain consequential amendment which is in violation of Rule 28 of Civil Rules of Practice. If this petition is allowed, it would elongate the trial at once. For these reasons, defendant sought for dismissal of the petition. After hearing learned counsel on both sides and on perusal of the record, 4 Dr. VRKS, J C.R.P.No.3854 of 2019 learned Principal Junior Civil Judge, dismissed the amendment application stating that at the fag end of the suit if this petition is allowed, it would definitely change the entire pleadings of both parties and thereby it changes the nature and character of the suit and that both parties will have to produce fresh evidence in this old suit of the year 2013. Since the parties also adduced their evidence and now at this stage when this application is filed, it shows that plaintiffs were not diligent in prosecuting the suit. That there is clear bar to allow amendment applications which are filed after commencement of trial. Permitting to allow this petition would amount to withdrawal of certain admissions. It observed that it is only to drag on the suit for some more years this petition is filed. With such observations it dismissed the said petition.
7. Assailing that the plaintiffs are here with this revision questioning the entire reasoning and order of the learned trial Court.
8. For respondent, a counter affidavit is filed reiterating every contention that was taken up by the defendant in that application before the trial Court.
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9. For convenience, Order VI Rule 17 C.P.C. is extracted here:
"Order VI 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial."
The first paragraph is the part that contains the main principle and the theme of the law indicate that pleadings could be amended and amendments must be of such nature which if allowed would enable the Court to determine the real question in controversy between the parties and that such amendments to pleadings could be allowed at any stage of the proceedings. The second paragraph is a proviso. The effect of this proviso is that application for amendment of pleadings could be allowed earlier to the commencement of the trial but not after commencement of trial. Inferentially it mandates that the 6 Dr. VRKS, J C.R.P.No.3854 of 2019 scheme of law does not desire amendments to pleadings subsequent to commencement of trial. This paragraph further shows that the said prohibition is a matter of caution and not a mandatory bar as it provides that such amendment subsequent to commencement of trial is permissible if the Court considering the application comes to a conclusion that in spite of due diligence a party could not have raised the matter before commencement of trial.
10. In the case at hand, it is subsequent to commencement of trial plaintiffs proposed for the amendment in their pleadings. I have gone through the pleadings on both sides and the petition and the counter filed before the trial Court as well as the papers presented before this Court. The rival claims of title between the parties rest on their own pleadings and identity of the property is not a dispute between parties. Boundaries to property or the correctness of survey numbers mentioned in the pleadings have not become any issue in the suit. The various reliefs claimed in the plaint have to be sustained by the plaintiffs by production of valid evidence in support of their rights. Their agitation is about an identifiable immovable property and alleged encroachments on it. It is about that 7 Dr. VRKS, J C.R.P.No.3854 of 2019 immovable property they should prove at trial such rights which the plaintiffs believed that they hold. The claim of their rights over immovable property is to be pursued by properly describing the property. The plaint indicates that this property situate in Survey No.233/4. The proposed amendment is only with reference to the subdivision. According to plaintiffs, the correct subdivision is 233/7. Thus, the survey number and the village in which it is there remained intact. The boundaries remained as they are depicted in the suit schedule. It is only the subdivision of the survey number that is sought to be corrected. A change in subdivision number by itself does not change the rights claimed by the plaintiffs and does not change the obligations others owe towards the plaintiffs. According to the defendant, he raised structures in his own property and there was no encroachment into the plaint schedule properties. This defendant from his written statement does not indicate any particular question raised about correctness of the subdivision in the survey number, which is mentioned in the plaint. It is in that context when one looks at the whole issue, it is very clear that it is only a clerical or typographical error that made the plaint to contain a wrong subdivision number. In that view of 8 Dr. VRKS, J C.R.P.No.3854 of 2019 the matter, it is difficult to accede to the observation of the trial Court that a change in the subdivision number would change the nature and character of the suit. That observation of the trial Court is devoid of any reasons indicating the reason for that Court to reach to such conclusion. Therefore, there is clear error in the order of the trial Court. Learned counsel for revision petitioners rightly cited Mallu Sevappa v. Mallu Rathnamma1. A learned Judge of the then composite High Court of Andhra Pradesh held that an amendment in the plaint schedule does not amount to change of pleadings or the cause of action. Seeking amendment in the survey number is only to cure a "formal defect". If formal defects are not amended, the real dispute between the parties over the definite immovable property would always remain unsettled and in confusion. Therefore, such formal defects could be permitted to be amended at any stage of the suit. Various judgments of the Hon'ble Supreme Court of India are also cited by the learned Judge to reach to such conclusions. The ratio therein squarely governs the field for the case at hand.
1 Indian Kanoon-http://indiankanoon.org/doc/39939915/ (C.R.P.No.4676 of 2018 dated 24.12.2018) 9 Dr. VRKS, J C.R.P.No.3854 of 2019
11. Learned counsel for respondent very fervently argued in support of the impugned order and cited Ramoji Rao v. M.A.E. Kumar Krishan Varma2. That was a case where there was earlier litigations between parties and in the subsequent litigations the extent of the property was mentioned as 9,200 square meters as the one that was given on lease and amendment was sought for with reference to the extent of lease hold property. Adverting to the entire gamut of factual disputes between parties and the earlier litigations, the learned Judge observed that case facts indicated absence of diligence on part of the party who sought for amendment. Therefore on the touch stone of due diligence that case was decided. Having considered this ruling when one looks at the facts at hand what transpires is a mere defect in subdivision of a survey number which is stated to be an outcome of clerical or arithmetical error. That it is a clerical or typographical error cannot be disputed because no party ever would like to trace his title, claim rights and seek for recovery of properties knowing fully well as to what is the correct survey number and then furnish only incorrect survey 2 2012 (1) ALT 644 (AP) 10 Dr. VRKS, J C.R.P.No.3854 of 2019 number which is suicidal to ones own case. Detecting a typographical error is not too easy as one could assume. When did the revision petitioners come to know about this typographical error? The answer is mentioned in the impugned order of the trial Court. Learned trial Court recorded that an advocate commissioner was appointed and he visited the spot and it is then plaintiffs had come to know the defect in subdivision number printed in the plaint and therefore, they requested the advocate commissioner not to proceed further. Thus, it was at that time the detection of formal defect occurred. The clerical or typographical error of the present nature when tested on the principle of due diligence would make this Court understand that the mistake that occurred could not have been detected earlier and their failure to detect it earlier was only because of their inability to find out typographical errors. Therefore, the cited ruling by respondent does not really make this Court to hold that there was absence of due diligence on part of plaintiffs/revision petitioners. 11
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12. Learned counsel for respondent cited J.Samuel v. Gattu Mahesh3. That was a case of suit for specific performance where the plaint mandatorily required to plead about continuous readiness and willingness and the plaint did not contain it and at a belated stage when that was sought to be cured by way of amendment, their Lordships held that when it comes to mandatory pleadings the test of due diligence has to be applied very strictly. This ruling lends no assistance to respondent since in the case at hand it is not about omission to make mandatory pleadings, but it is a case of typographical error.
13. Learned counsel for respondent cited Estates (P) Ltd v. N.Gopal Naidu4. That was a case where this Court while disposing of a civil miscellaneous appeal made certain observations about omission in praying declaratory relief. For five years the parties did not take further steps despite of such observations from this Court. It is only thereafter plaintiff came up with the amendment with a prayer for declaration. It was in that context, this Court found that there was no due diligence 3 (2012) 2 SCC 300 12 Dr. VRKS, J C.R.P.No.3854 of 2019 on part of that party which sought for amendment and therefore concluded it against the party. The fact situation in the case at hand has no resemblance to the fact situation available in the said ruling. Therefore, that ruling does not assist the respondent.
14. The contention of the respondent is that consequential amendment is not prayed for in the petition. This contention is incorrect as the same is really pleaded and is seen from the record.
15. Learned counsel for respondent submits that the valuation certificate for the proposed survey number was not filed and such a document is necessary to find out the pecuniary jurisdiction of the Court. It is true when there is such change in the survey number the party is required to file the valuation certificate. However, omission to produce that valuation certificate by itself shall not prevent the amendment being permitted. A direction to the plaintiffs to furnish such valuation certificate would be sufficient in the interest of justice. 4 2011 LawSuit (AP) 1104 13 Dr. VRKS, J C.R.P.No.3854 of 2019
16. Having considered the entire material, this Court finds that learned trial Court grossly erred in rejecting the amendment that was sought for by the plaintiffs in their plaint. The impugned order cannot be supported as it occasioned failure of justice. Point is answered in favour of the revision petitioners.
17. In the result, this Civil Revision Petition is allowed. Order dated 09.12.2019 of learned Principal Junior Civil Judge-cum- Judicial Magistrate of First Class, Puttur in I.A.No.1663 of 2019 in O.S.No.73 of 2013 is set aside. Consequently I.A.No.1663 of 2019 in O.S.No.73 of 2013 stands allowed. As a consequence, the petitioners/plaintiffs shall produce the necessary valuation certificate and the learned trial Court shall consider the same and take further steps in accordance with law. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 18.07.2023 Ivd 14 Dr. VRKS, J C.R.P.No.3854 of 2019 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.3854 of 2019 Date: 18.07.2023 Ivd