Andhra Pradesh High Court - Amravati
Aditya Motors vs D Venkata Satish on 12 June, 2019
IN THE HIGH COURT OF ANDHRA PRADESH éy WEDNESDAY, THE TWELFTH DAY OF JUNE #/ TWO THOUSAND AND NINETEEN PRESENT THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI CIVIL REVISION PETITION NO: 4155,4280,4299,4302 and 4305 OF 2018 CIVIL REVISION PETITION NO: 4155 OF 2018 Petition under Article 227 of the Constitution of India, filed against the Order passed in IA Na.238 of 2018 In LA.Na 1013 of 2016 in O.S.No.118 of 2012 daied 28.03.2078 on the file of court of the learned IV Additional District Judge, Guntur, Garrmur District Between: Aditya Motors, Rep. by its P.D. Prasad S/o. Varahala Rao, C/o. R.M. Motors Opre Gateway Hotel, Viiayawada . PETITIONER/Respondent Na.1/Defendant Not AND '. Dogiparthi Venkata Satish, S/o. late Poornachandra Rao Rio. Venkatesh Enclave, Flat No.8, 3 Floor, 1/5, Ramannapet, Guntur Dagiparthi Venkata Hanumanth Kishore, S/o. Late Poornachandra Rao, Aged 34 years, R/o. Venkatesh Enclave, Flat No.8, 3rd Floor, 1/5, Ramannapet, Guntur . RESPONDENTS /Petitioners/Plaintifis 3. Associated Auto Services (P) Ltd, Rep. by Mandhavi, D/o. Gali Benerji, Aged 40 years, C/o. R.M. Motors, Qpp Gateway Hotel, Viiayawada 4. Korrapatl Ankineedu Prasad, Director, Assaciate Auto Service (P) Lid., Aged 42 years, R/o. Dantti Simhadri Street, D.No. 39-42-12, Labbipaet, Viiayawada QS. Palacdugu Surendra, Director, Assaciate Auto Service (p} Ltd, Aged 40 years, Rio. D.No.6-22/11, Flat No.9, Arjuna Apartments, East point colony, Visakhapatnam . RESPONDENT S/Respondents/Defendanis {A NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of ali further proceedings in 0.S.No0.118/2012 on the file of the IV Additions' District Judge, Guntur, pending disposal of above (.R.P. IA NG: 2 OF 2018 Detween: 7 Dogipartht Venkata Salish, S/o. late Poornachandra Rao R/o. Venke Ennlave, Flat No.8, 3° Floor, 1/5, Ramannapet, Guntur 2 Dogipartht Venkata Hanumanth Kishore, S/o. Late Poornachandr: Qe years, Rfo. Venkatesh Enclave, Flat No.8, 3rd Floor, 1/5, Rame che » Petitioners! F 1 Aditya Motors, Rep. by its P.D. Prasad S/o. Varahala Rao, C/o. R.M. Motors Opp: Gateway Hotel, Viiayawada 2 Associated Auto Services (P) Ltd, Rep. by Mandhavi, D/o. Gali Benerji, Aged 40 years, Clo. R.M. Motors, Opp Gateway Hotel, Vijayawada Korrapati Ankineedu Prasad, Director, Associate Auto Service (P)} Ltd., Aged 42 years, R/o, Dantti Simhadri Street, D.No. 39-42-12, Labbipet, Viiayawada 4 Paladugu Surendra, Director, Associate Auto Service (p) Lid, Aged 40 years, Rio, D.No.6-22/11, Flat No.9, Arjuna Apartments, East point colony, Visakhapainam (Respondent No. 2 fo 4 are not necessary in the Respondent) _ _ Respondents/Respondents te Patition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim orders dated 21.08.2018 passed in fA No.1 of 2018 in CRP No.4155 of 2918 and dismiss the CRP with exemplary costs CIVIL REVISION PETITION NO: 4280 OF 2018 Petition under Article 227 of the Constitution of India, filed against the Order passed in [A No.241 of 2018 in |_A.No.1826 of 2017 in O.S.No.118 of 20412 dated 28.03.2018 on the file of court of the learned IV Additional District Judge, Guntur, Guntur District IANO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in OS.NO.118/2012 on the file of the IV Additional District Judge, Guntur, pending disposal of the above CRP CIVIL REVISION PETITION NO: 4289 OF 2018 Petition under Article 227 of the Constitution of India, filed against the Order passed in IA No.240 of 2078 in LA.Na.3076 of 2016 in O.S.No.118 of 2012 dated 28.03.2018 on the file of court of the learned IV Additional District Judge, Guntur, fsuntur District | Petition under Section 161 CPC praying that in the circumstances stated in the atfidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in O.S.No.118/2012 on the file of the IV Additional District Judge, Guntur, pending disposal of above C_R.P. CIVIL REVISION PETITION NO: 4302 OF 2018 Petition under Article 227 of the Constitution of India, filed against the Order assed in {A No.237 of 2018 in O.S.No.118 of 2012 dated 28.03.2078 on the file sourt of the learned IV Additional District Judge, Guntur, Guntur District [A NG: 1 OF 2078 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.3.no.118/2012 on the file of the IV Additional District Judge, Guntur pending disposal of the above CRP CIVIL REVISION PETITION NO: 4305 OF 2018 Petition under Article 227 of the Constitution of India, filed against the Order passed in IA No.238 of 2018 in LA.No.1012 of 2016 in O.S.No.118 of 2042 dated 28.03.2018 on the file of court of the Jjearned IV Additional District Judge, Guntur, Guntur District IA NO: 1 OF 20418 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings in OS No.118 of 2012 on the file of the MV Additional District Judge, Guntur pending disposal of the above CRF Counsel for the Petitioners :-Ms. C SINDHU KUMAR! Counsel for the Respondents Ri & R2: SMT. V. DYUMAN! Counsel for the Respondents R3 to R5 : None Appeared The Court made the following: COMMON ORDER THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition Nos.4155, 4280, 4289, 4302 and 4305 of 2018 COMMON ORDER:
These civil revision petitions arise out of five orders separately made, on 28.03.2018, by the learned IV Additional District Judge, Guntur in [A.nos. 237, 240, 241, 239, 238 of 2018 in OS.n0.118 of 2012 filed by the plaintiffs for amendment of pleadings. By the said orders, all the said petitions are allowed. in view of the cammeanality and identity of subject matter of all the interlocutory applications, which are allawed, these CRPs are being disposed of by this commen order.
2. | have heard the submissions of Sri $.S. Prasad, learned senior counsel, representing Ms. C. Sindhu Kumari, learned counset appearing far the revision petitioner - unsuccessful 1 respondent - 1° defendant ['1" defendant', for brevity] and of Smt. V. Byumani, learned counsel appearing fer the respondents 1 & 2 - plaintiffs ['plaintiffs', for brevity]. {have perused the material recard.
3. Yo begin with, it is toa be noted that the plaintiffs instituted the suit against the 1* defendant and three others fer eviction fram the plaint schedule premises and recovery of vacant possession of the same, recovery of money towards use & occupation and other reliefs. The 1 defendant is also resisting the suit. During the pendency of the suit, the plaintiff filed the above said interlocutory Applications in the suit and also in the pending Interlacutory Applications in the suit.
4, The amendments sought insofar as the plaint read as under:
ia) in the cause tthe and in the entire suit ie., OS.No.118/2012 in the particulars of the 2°" plaintiff the wards i.e., "Rep., by Authorized agent D.V. Satish" have te be remever and need to be substituted as "Rep. by GPA holder DV. Satish i.e., the 1° plaintiff"
. os Wherever it is required in the entire suit.
5 MSRM, J C.R.P.No. 4155 of 20738 & batch
(b) in the cause title and in the entire suit 1.@., OS.No.178/2012 jn the particulars of the 1 Defendant has to be removed and need ta be substituted the following where ever it is required:
"Pilla Durga Prasad, 5/0. Varahala Rao, Hindu, Aged about 46 years, Rep. af Aditya Motors D.No.5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sawniya theatre and. Sai Ram theatre, Vijayawada Urban. 52G001, AP, Aachar No. ABTS 9873 6927."
i The wards "Associate Auto Service (P} Ltd." has. to be removed where ever appeared in the entire suit fe., in OS.No.t18/2012 and need to be substituted as:
"A/S Associated Auto Service Pyt.Ltd.."
4.% The amendments sought in the various Interlocutory Applications viz., £40, 241, 239, 238 of 2018 pending in the suit respectively read as under:
lA.No. 240 of 20718if) in the cause title, the particulars of the 1% respondent defendant in affidavit and petition and in schedule of the petition of IA.No.3076/2016 in S.No. 11 8/2042 has to be removed and need ta be substituted the following:
"Filla Durga Prasad, $/o.Varahata Rao. Hindu, Aged. about 46 years, Rep. of Aditya Motors B.No.5-7/8-56/76A, Rajiv Sarma Nagar, Behind SOWHTYS theatre and Sai Ram theatre, Vijayawada Urban 520001, AP, Aachar NHo.Bats 9573 6927."
{b} The words "Associate Auto Service (P) Lich" has to be removed where aver appeared in IA.No.3076 of 2096 in OS.No.418/2012 and need to be substituted ag:
"As. Associated Auta Service Pyt.Ltch ,"
IA.Mo. 247 of 2018 ia} in the cause title ancl in the entire affidavit and petition iie., IA.Ne. 1826/2017 in OS.No.118/20t2 in the particgars of the 1 Defendant has to be removed and need to be substituted the following where ever it is required:
"Pilla Durga Prasad, 5/o.Varahala Rao, Hindu, Aged about 46 years, Rep. af Aditya Motors D.No.5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowntya theatre and Sai Ram theatre, Vijayawada Urban 520007, AP, Aadhar No. 8815 9573 6927."
ib) The words "Associate Auto Service (P} Ltel." has to be removed where ever appeared inthe entire affidavit and petition i.e. IANO. 1824/2017 in OS.No.1 18/2012 and need toa be substituted as:
"Mis Associated Auta Service Pye Ltd. ."
iA. Na. 239 of 2018
(a) In the cause title, the particulars of the 2" petitioner/plainkiff the words "Rep. by GPA hoider DLV -Sathis i-e., the 7 plaintiff" have to be added after the 2" dine in affidavit and petitian of fA.NG. 1013/2016 in OS.ne. TIS 7201S.
MSRM. 3 CORP Mo 415% of ING G& batch Las (hy) In the cause title, the particulars of the 1 ressondent/deferdant it affidavit and petition of IA.ne. 1013/2016 ih GS.ndl118/ 2012 hes to be removed and need to be substituted the follows:
"Pilla Gurga Prasad, $/o.Varahala Rao, Hindu, Aged about 46 years, Rep. of Aditya Matars D.No.5-7/B-56/76A, Rajiv Sarma Nagar, Behind Sowmya theatre and Sai Ram theatre, Viiayawada Urban S20007, AP, Aadhar Noa, 8815 9573 6927 .% ic} The words "Associate Auto Service (P} Ctd." has to be remoyedl where aver appeared in PANo.tO18 of 2016 in OS.No.d18/2082 and need to be substituted as:
"Mis Associated Auto Service Pyt.Led.."
id} The words in para no.Z of affidavit i.e, "Aditya Motors, Reg., by FP. Durga Prasad" has to be removed and need tu be substituted as:
"Pilla Durga Prasad, Rep., of Aditya Motors"
fe} The words "{" defernlant company" has to be removed where ever appeared in the [A.N0.1013/2016 in OS,No.118/201% and need to be substituted as:
"45 defendarit™ iA.No. 238 of 2018 fa} in the | cause tile, the particulars of the 2°" petitioners plaintiff the words "Rep. by GPA holder D.V.Sathis i.e.. the 1 plaintiff' have tec be added after the 2° line in affidavit, and petition of lA.no.TOt2 72096 in OS.no. 1718/2012.
(b) In the cause -- title, the particulars of the 1 respondent /defendant in affidavit and petition ot iA. 1012/2076 in OS mn. 418/2012 has to be removed and need to be substituted the follows:
"Pilla Durga Prasad, 5/a.Varabala Rao, Hindu, Aged about 46 years, Rep. of Aditya Motors D.No.5-7/8-58/76A, Rajiv Sarma Nagar, Behind Sayinya theatre and Sai Ram theatre, _ Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927."
ic} The words in para No. 3, 1* Line 6" word in para No.3, 7° line 1 word, in para No.3, gh Lirte ye word Le, "Respondents/ Defendants" of affidavit has to be removed arid heed to he substituted as:
+" Respondent/ 1 Defendant"
{d} The words ta para No.3, 11 line 5° word Le, "they" of affidavit has to be remdved and need ta be substituted as: "He* {e) The words in para No.5, 4" line the wards 2,3 & die., "admitted rent and" of affidavit has to be removed.
3. The case of the plaintiffs in support of the afore-stated requests, in Grief, is this:
The suit is instituted for eviction & recovery of vacant possession of the 2S plaint schedule property and for recovery of money. The 1° defendant is the eh MSRM +: a C.R.P.No.4155 af 2078 & batch tenant. The 2 defendant company was inducted by the 1" defendant into the sult schedule property, without the permission of the plaintiffs. The 1 aefendant initially remained ex parte in the suit. Later, the ex parte arder is set aside. The defendants are resisting the suit. In the affidavit filed in support of the application filed for setting aside the ex parte order, it is stated that the 1" defendant is a proprietary concern; however, no documentary proof is filed. In the lease deed entered into between the parties, the 1 defendant was described as Aditya Motors, Rep., by P.D. Prasad. The suit is filed by shawing the 1 defendant with the same description. Until counters are filed in the interlocutory applications, the plaintiffs are not aware that the i defendant is a proprietary concern. Further, the Typist committed certain mistakes while typewriting the plaint and the other pleadings. In the pleadings it is stated that 2°¢ plaintiff is 'Rep., by authorised agent D.V. Sathish' instead of stating as 'Rep., by GPA holder D.V Sathish ie., the 1° plaintiff'. Hence, the description of the 2°¢ plaintiff is te be amended as above wherever it occurred in the pleadings. Further, as it has come to the notice of the plaintiffs that the ™ defendant is a proprietary concern, it has become necessary to amend the description of the 1% defendant suitably in the pleadings. Further, as the description af the 2 defendant was mistakenly mentioned as 'Associate Auto service (P} Ltd.,' it has to be amended as 'M/s Associated Auto Services Pvt. Ltd.,' wherever it occurred in the pleadings. Therefore, for seeking the above and other necessary amendments the plaintiffs filed the subject interlocutory applications, &. The case of the 18 defendant is this: - 'The averments in the affidavits Mled in support of the applications are net true. The allegations that the 1"
defendant is the tenant and the 2" defendant is inducted into the property by the 1" defendant and that the 1° defendant is not paying rents are all fafse. The allegations that till the fling of the counters in the interlocutory applications, the plaintiffs are net aware that the 1° defendant is a proprietary 5 MSRM, CURE. Noes 154 af 2018 & batch concem and that along with the application to set aside the ex perte arder the i defendant has not filed any documents are not true. The burden is on the plaintiffs to ascertain. the particulars of the parties/defendants. The lease deed itself contains recitals that Aditya Motors, Guntur, is represented by its Froprietar - P.D. Prasad. The allegations made by the plaintiffs are false and misleading. The plaint is already permitted to be amended by allowing lA.no.34117 of 2016. Hence, the present petitions are riot maintainable. The eresent amendments were not sought earlier and all the present petitions are filed with mafa fide intentions. In the affidavit it is stated that the Typist of the advocate committed certain mistakes. The plaintiffs are required to verify the pleadings before filing the same into Court. They are negligent and careless. The plaintiffs have not followed the earlier orders passed in fA.no.3ti7 of 2016 by the trial Court. They are in the habit of filing petitions after petitions. They are not entitled te claim the reliefs in the oresent interlocutory applications. The suit itself is not maintainable. The petitions are oy am rat Hled to drag on the matter.' fy At the hearing, learned senior counsel appearing for the revision petitioner -1" defendant, while reiterating the case of the 1" defendant, which is extracted supra, contended as follows: - 'The plaintiffs are very much aware that the 1% defendant is a proprietary concern. in the impugned order, the trial Court erroneously observed that the reliefs sought for are all barne out by record. The reasoning of the trial Court is erroneous. The amendment of the plaint is being sought highly belatedly. After trial has commenced the pleadings cannot be permitted to be amended. The affidavit in leu of examination in chief was filed in the year 2016. By reason of the proposed amendments, the entire nature and character of the suit is being totally altered. Under the garb of amendment, the plaintiffs are seeking ta implead altogether a new defendant as 71 defendant in the suit. The original description of the 1 defendant and the description of the proposed 1™ 6 MSRM, 3 CUR.PLNG. 4755. af 2048 & batch defendant are totally different. The amendment is intended to fill ub the gaps in the pleadings and get over the defects. Such amendments cannot be permitted after lapse of several years from the date of institution af the SEITE, The Court below has not examined whether there is any cause of action for the plaintiffs against the newly described defendant and whether the plaintiffs would be entitled to seek the reliefs against that defendant, who is being sought to be added by means of the proposed amendment. Hence, the petitions may be dismissed.' S. Per contra, learned counsel far the plaintiffs, while supporting the orders of the Court below, contended as fallaws: - 'The amendments sought are only as regards the description of the representative af the 2¢ plaintiff and the description of the 1° defendant as in the original plaint it is not mentioned that the person representing the 2 plaintiff is a GPA holder and that the 15° defendant is a proprietary concern. Insofar as the 2°¢ defendant the prefix g "Més." is not added before the name of the 2° defendant: further, while mentioning the 2° defendant the word 'Associate' is wrongly typed instead of as "Asseciated'. The aforesaid and ether amendments sought for are only triviat and do nat change the identity of the parties. Therefore, the proposed amendments do not change the nature and character of the suit as being falsely contended by the 1% defendant. Though affidavit in eu of examination in chief is filed, trial has not commenced. Far allowing the amendments, which are sought by the plaintiffs, the Court has got ample power. it has became necessary to seek amendments of the descriptions of the 2 plaintiff and the defendants 1 & 2 to avoid any complexities and difficulties at the time af execution of decree that may ultimately be granted. The trial Court is justified in allowing the applications for amendments of the pleadings of the olaintiffs.' g, [have given earnest consideration ta the facts and submissions.
MSRM, J C.R.P.NG.4155 of 2018 & baich "a 1G. At the outset, be it noted that learned counsel for the plaintiffs submitted as follows: - 'CRP.No.4155 of 2018 arises aut of the order passed in fA.no.239 of 2018 The said IA was filed for amendment af pleadines in [A.ri0.1013 of 2046 filed under Order ad Rule 6 of the Code of Civil Procedure, 1908 [the Cade', for brevity] for granting a decree on admissians. Similarly, CRP.No.4280 of 2018 arises out of [A.No.241 of 2018. The said IA was filed for amendment of pleadings in IA.no.1826 of 2017 filed under Order Xi Rule 4 of the Code requesting to grant leave to serve interrogatories on the defendants. Though both the interlocutory applications seeking amendments viz., iA.Nos.239 and 241 of 2018 are allowed by the trial Court and the said orders of the trial Court in the said IAs are impugned in CRP. nas.4155 of 2078 and 4280 of 2018, the main interlocutery applications viz., IA.no.1013 of 2016 and 1826 of 2017 were not pressed and are withdrawn by the plaintiffs, on 24.04.2018, and that the necessity of amending the pleadings in the said interlocutery w Ps have oe applications is obviated for the said reason: and, hence, the said CR become infructuous: in that view of the matter, CRP. nos.4155 of 2018 and 4780 at af 2078, which have become infructuous, are Wable for dismissal accordingly,"
11. Dealing with the merits of the matters, there is ne need ta restate the facts and contentions, which are atready adverted to supra, in detail. The case of the plaintiffs insefar the description of the 1 defendant is that the 1° defendant is initially described in the plaint and in the interlocutory applications as 'Aditya Motors Rep., by P.D. Prasad' and that later the plaintiffs realised that the said concern is a proprietary concern and, therefore, if has become necessary to seek amendment of the description of the 18 defendant wherever if occurred. The law is well settled that a proprietary concern is not & legal entity and when an individual carries an business in a name or style ather than his owr name, he cannot sue in the trading name. The above proposition. of law finds support from the decision of the Supreme Court in S MSRM, J C.R-P.NG.4455 of 2098 & batch shankar Finance and investments vs. State of Andhra Pradesh and Ors. PAIR £009 SC 422] wherein the Supreme Court held as follows:
As contrasted from a carmpary incorporated under the Campanes Act, [56 which is a legal entity distinct from its shareholders, a proprietary concem is not a legal entity distinet from. its proprieter. A proprietary concern is ugthing but an individaal trading under a trade name. in civil law where an individual carries on business in a name or style other than his wan namie. be cannot sue in the trading same bat must sue in his own name, though others can sue him in the trading name. Therefore, if the appellant in this cause had to file a civil suit, the proper description of Maimuff should be "Atmakuri Sankara Rao carrying on business under the name and stwie of Ms Shankar Finance & Investments, a sole proprictary comcern."
in the decision in M/s.Bhagawati Vanaspati Traders v. Senior Superintendent of Post Gffices [AIR 2015 SC 901] the facts reflect that the postal authorities having permitted M/s.Bhagawati Vanaspati Traders te purchase the NSC in the year 1995 raised a challenge of irregularity after its maturity in the year 2001 when the appellant - sole proprietor af the said concern wanted substitution of the said name with his narne. A contention was advanced by the learned counsel fer the Appellant that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name en behalf of an individual and that truthfully anly one individual is the owner of a sole proprietorship concern and as such, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor and that if that is allowed, the NSC purchased by the Appellant would strictly conform ta the mandate of law and that it makes no difference whether the indwiduals name, or the praprietorship's name is recorded while purchasing an NO and if was pointed out, that if the Respondent was net agreeable in accepting the trade name, the Respondent ought to have corrected the MSC by suastituting the name af M/s, Bhagwati Vanaspati Traders with that af its sole QO MBRM, a C.RP Nod? SS of 2078 & batch proprietor, namely, B.K. Garg. In the said factual background, adverting to the said contentions, the Supreme Court held as follows:
"We find merit in the second contention advanced at the hands of the learned Counsel for the Appellant. it is indeed true, thar the NSC! was purchased us the name af M/s. Bhazwati Vanaspati Traders. It is alse equally tree, that M/s. Bhaewafi Vanaspati Traders is a sole proprietorship concern of BUR. Garg, and as such, the irregularity comomitted while issutne the Na in the name of Myx. Vanaspatl Traders, could have easily been corrected by substituting the name of M/s, Bhagwati Vanaspati Traders with that of BK. Garg, For, m a sale proprietorship corern an individual uses a fictional trade name, in pace ot his own name. The ri gidity adopted by the authoritivs is clearly ununderstandable, The postal authorities having permitted M/s. Bhagwati Vanaspali Traders to purchase the NSC in the year 1995, could not have leginmately raised a challenge of irregularity after the maturity thereof in the year 2001, specially when the irregularity was curable."
Having regard to the facts and circumstances and the legal position abtaining, this Court finds that the amendment being sought for by the plaintiffs herein insofar as the description of the 1% defendant can be permitted in the interests af justice, i2.1 Coming to the amendment of the description of the 2° defendant (Associate Auto Service (P} Ltd}, the amendment relates to only prefixing 'M/s' before the said name of the 2?" defendant company and correcting the typographical mistake by substituting the word 'associated' in the place of the ward 'assaciate', 12.2 Insofar as the amendment related to the description of the 2™ plaintiff, the plaintiff wants to substitute the words 'rep., by autherized agent BLY, Sathish' with the wards 'Rep., by GPA halder ie., the 1" plaintiff'.
13. Ail the three amendments being sought for by the plaintiffs, an a olain consideration, of facts & law, are permissible and that such amendments, if allowed, do not either change the nature & character of the suit or the identity 10 MSRM, J C.R.FLNo.4995 of 2078 & batch of the parties and that the identities of the parties originatly arraigned remain the same. Therefore, none of the contentions of the 7° defendant merit cansideration, Hence, all the contentions of the 18 defendant are accordingly rejected, id. Now what remains is the contention that the amendments are sought provise te Order VI Rule 17 of the Code.
15. Admittedly, the applications for amendments of the pleadings are fited after the affidavit of one of the plaintiffs in lieu of examination of chief was filed, Learned coursel for the 18 defendant contended that as the trial has commenced with the framing of issues and as the amendment of the plaint was being sought after 6 years of the institution of the sulk, the plaintiffs are required to establish that despite due diligence they could nat have raised the matter before the commencement of the trial and that the plaintiffs failed to Ful, the canditien and hence, the trial Court committed an error in allowing the applications for amendments filed by the plaintiffs. Learned counsel for C the plaintiffs while reiterating the cantentions that the amendments sousht are trivial and are essential for smooth execution of the decree in the event the suit stands decreed and that as the amendments sub-serve the ultimate cause af justice and avoid multiplicity of Wogation, the trial Court is justified in permitting the amendments sought for by the plaintiffs.
16. On this aspect it is profitable to first refer ta the legal position oblaining, in J. Samuel and others v. Gattu Mahesh and others' the Supreme Court while dealing with an application for amendment had held as follows:
"in the given facts, there is a clear lack of "due diftgence™ and the mistake carnmiliec: certainly does mot come within the preview of a typographical error, The term "typographical error' is defined as a fl MSRM, I C.R.P ND. 4155 aft 2078 & batch Mistake made in the. printed/typed material during a printing/typineg process, The term includes errors dve to mechanical failure or slips of the hand or Anger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation te de carmiat be called as a typographical errar. As a consequence the plea af typographical error cannot be entertained im this régard since the situation is of lack of due diligence wherein such amendment is impliedly barrext uncer the Cade."
in Rajkumar Gurawara (dead) through L.Rs v. S.Sarwagi and Company Private Limited and Another? the Supreme Court having referred to Order Vi Rule 17? of the Code had held as follows:
"Further, it is relevant to point out that in the original suit, the plaintiff prayed Tor declaration of his exclusive right ta do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of passessian and damages from the second defendant. It is settled {aw that the grant of application for amendment Se subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (1) when the amendment would result in intreducing new cause of action and intends to prejudice the ather party; Gi} when allowing amendment application defeats the law of limitation. * Before proceeding further, it is necessary to refer to the proviso to Order Vi Rule 17 of the Cade reads as under:
"Provided that no applicatian for amendment shall be allawed after the triai has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could nat haye raised the matter before the commencement of triah."
in the decision in VIDYABAI V/s. PADMALATHA®? the Supreme Court observed that proviso to Order Vf Rule 17 of the Code is couched in a mandatory form and, therefore, the court's jurisdiction to atlow 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 te a conclustan that in spite of due diligence the parties could not have raised the matter before the cammencement 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, *{200S8) f Stipreme Court Cases 244 *¢2909) 2 Supreme Cimet Cases 44 {2 MSRAAL 3 C.8PLNO. S155 of YOUR & batch the amendrnent. is to be allowed. Thus, the proviso appended to Grder Vi Rule any iY af the Code was held to restrict the power of the Court and that it placed ar nee embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the court would have no jurisdiction af ail to allow the arnendment., f in ~ In REYAJEETU BUILDERS V/s NARAYANA SWAMY", on an analysi English and indian case law, the supreme Court carved out the follawing principles which should weigh with the Court while dealing with an application for amendment:
@} Whether the amendment sought is imperative for proper and affective adjucication of the case:
{2} Whether the application for amendment is hona fide or mata fide:
3} The arpendment should not cause such prejudice to the other side which cannat be compensated adequately in tarms of money:
i4) Refusing amendment would in fact lead to injustice or fead te multiple tigation:
{$) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case: and {6} As a general rule, the court should decline amendments if a fresh sult on the amended clairns would be barred by Nmitation an the date of application, The Supreme Court, however, clarified that the above principles were Hlustrative and nat exhaustive, In CHANDER KANTA BANSAL V/s, RAJINDER SINGH), the Supreme Court, taking note of the fact that "due diligence' has not been defined in the Code, referred to the dictionary meaning of 'diligence' which is to the effect that it means careful and persistent application or effart or a continual effort to accomplish something; care; caution: the attention and care reqiugred from a person ia @ given situation, and observed that "due diligence' means the diligence reasonably expected from and ordinarily exercised by a person wha seeks to satisfy a legal requirement or to discharge an obligation, Reference was also made to "Words and Phrases' by Drain-Dyspnea (Permanent Edition 13-4) wherein "due diligence' was defined in law to mean doing everything reasonable and not everything possible. Fhe Horn'ble Supreme Court, 13 MSRM, J ° CORP Mo 4155 of BOB & batch therefore, concluded that "due diligence' would mean reasonable diligence and would mean such diligence as a prudent man would exercise in the canduct of his own affairs.
Further, in the decision in Abdul Rehman and Another v. Mohd. Ruldu and Gthers®, the Supreme Court, having taken note of the above provision of iaw had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real questian in controversy between them and that the Courts have to be liberal in accepting the same, if such apntication for amendment is made prior to the commencement of the trial and that if such application is made after the carmmencement of the trial, in that event, the Court has to arrive at a conclusion that, inspite of due diligence, the party cauld not have raised the matter before the commencement of the trial. In the above decision the Supreme Court reiterated the following propasitian:
"Atl amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allawed if it does not change the basic nature of the suit. A change in the nature of relief claimed shali not be considered as a change in the mature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."
in the above decision the Hon'ble Supreme Ceaurt further referred to the ratio in the decision in Pankaja and another vy. Yellapa', which runs as follows:
"W¥ the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same shauld be allawed."
in Pankaja (7 supra) the facts are as under: "As per the case of the plaintiffs, the defendant, in viclation of the Court order, had further encraached into the suit property. Therefore, the plaintiffs sought for the amendment of the plaint far seeking the reliefs of declaration of ownership and passession af the said encroached area also. The said application was allowed by the trial Court. However, the Principal Civil Judge rejected the applicatian ° © 201, DALD.| 15C) * AIR 2004 SC 4102 ta MBRM, J CUR.PLNG 4988 of 2018 & bate ch for amendment on the ground that the application for amendment was filed at a belated stage. The High Court disrnissed the revision on the said ground and aiso on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court permitted the amendment by allowing the appeals.
in Sampath Kumar v. Ayyakannu and another® the facts and ratio are as unders "A suit was brought in the year 1988 for perpetual injunction in respect of an agricultural land. Before the commencement of the trial in the year 1999. the plaintiff moved the application for amendment of the plaint alleging that during the pendency of the suit, the defendant had forcibly disposed the plaintiff in the year 1989. On such averments the plaintiff sought far the relief of declaration of title to the suit property and consequential relief of recovery of possession. The defendant oppased the application of the plaintiff stating that he had perfected title to the property by adverse passessian and that the suit is barred £ by law of limitation and that a valuable right that had accrued to the defendant is being sought to be taken away bry proposed the amendment. The trial Court rejected the application for amendment observing that the appropriate course far the plaintiff was to bring a new suit. The High Court maintained the said order. The Supreme Court while allowing the appeal of the plaintiff had referred to its earlier decisions and had finally hetd as follows:
8. RukAmabal y. Lala Laxminaraya and Ors.: [7960}2SCR253, this Court has taken the view that where a suit was Filed withaut seeking an appropriate relief, it is a well settled rule of practice net to dismiss the suit automatically but to allow the plaintiff te make necessary amendment Wf he seeks to do so, $. Order 6 Rule {7 of the CPC confers jurisdiction on the Court to allaw either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just, Such amendments as are directed towards putting-forth and seeking determination of the raat questions in controversy between the parties shall be permitted to be rade, The question of delay in moving an applHeation for amendment should be decidecl not by calculating the period from the date of 15 MSRM, J CRP No.s155 ef 2018 & batch institution of the suit alone but by reference ta the stage toa which the hearing in the suit has proceeded, Pre-trial amendments are allowed more liberally than these which are sought to be. made after the commencement af the trial or after conclusion thereof, In farmer case generally it can be assumed that the defendant is mot prejudiced because he will have ful opportunity of meeting the case of the maintiff as amendment. in the latter cases the question of prejudice ta the opposite party may arise and that shall have to be answered by refersrice to the facts and circumstances of each individual case. Ho strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a sround for refusing a prayer for amendment.
iO. An arnendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application anc in appropriate cases the Court. is campetent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Caurt on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Aanr. vy. Mamtha Shenay: AIR 2004 SC 2896},
11. in the present case the amendment. is being sought fer almost 14 years after the date of the institution of the suit. The plaintiff is nat debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the giaint seeking relief of issuance of permanent prohibitary injunction and which is pending. In order to avoid multiplicity of sults it would be a sound exercise of discretion to permit the relief of declaration of tie and recovery of possession being sought for in the pending suit. The nlaintiff has alleged the cause of action for the reliefs now sought te he ackleci ag having arisen te him during the pendency of the suit. The merits of the averments sought to be incorporated by way af arnendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that W he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by exchiding a period of about ti years in calculating the period of prescriptive title claimec! ta have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the anplication for amendment has been filed.
in North Eastern Railway Admn. V. Bhagwan Das® held as follows:
4a "insafar as the principles which gavern the question of granting or disallowing amendments under Order 6 Rule 17 CPC {as it stoed at the redevant time) are concerned, these are alse well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the Sad LG MSRM, J C-R.PLNo. 4159 of 2018 Bobatch proceedings. in Pirganda Hongonda Patil v. Kalganda Shidgonda Patil [ AIR 1957 5C 363] which still holds the field, it was held that ail amendments ought to be allowed which satisty the two conditions: (a) of nat working injustice te the other side, and (b} af being necessary far the purpose of determining the real questions in centraversy between the parties. Amendments should be refused only where the ather party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause hira an injury which could not be compensated in costs."
Ty, In view of the facts of the instant case. which are already adverted to supra, and the legal position aforestated, it can safely be held that the amendments can be permitted.
eek, me ' Dealing with the contention that the issues are frarned based an the pleadings and that the affidavit in lieu of examination of chief of one of the plaintiffs is tiled and that therefore the application for amendment is debarred under Order Vi Rule 17, it is necessary to refer to the decision in Usha Devi v. Rijwan Ahamd!®. In the said decision, a cantention was advanced that the trial of the suit would commence with the settlement of the issues and in suppert of the said contention that the framing of issues marked the cammencement of trial of the suit reliance was placed upon the decision in Ajendraprasad]i N.Pandey v. Swami Keshavprakeshdasji [(2006) 12 SCC1]. However, while meeting the said contention, the attention of the Supreme Court was invited to the decision of the Supreme Court in Baldev Singh v. Manohar Singh | (2006)4 SCC 498] wherein it was held as follaws:
"Before we part with this order, we may alsa notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall nat be allowed when the trial of the sit has already commenced, For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. {t appears fram the records that the parties have yel to file their documentary evidence in the sult. Fram the record, it.abse appears that the suit was not on the verge of conclusion as found by the High Cuurt and the trial court, That apart, commencement of trial as used in provisn te Order 6 Rule 17 in the Code of Civil Procedure must be understoad in the Hrited sense as meaning the final hearing of the suit, examination of witnesses, files of decumenis arid addressing of arguments. As noted hereinbefore, parties are yet ta i MGM} 3 Supreme Court Cases 717 1? MSRM J CARP No4tss af 2098 & beteh file their documents, we do not find any reason to reject the application for amendment of the written statement in view of provise toe Order 6 Rule 17 -CPC which centers wide power and unfettered discretion to the cqurt to allow an amendment af the written statement at any stage of the proceedings."
The Supreme Court having referred to a three-judge Bench decision in Safjan Kumar vy. Ram Kishan, hele as follows:
"Having heard the learned Counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer far amendment has failed to exercise the jurisdiction vested in it by law and by the failure to se exercise it, has occasioned a possible failure of fustice, Such an errar committed by the trial court was Hable to be carrected by the High Court in exercise af its supervisory jurisdiction, even if Section 445 CEC would not have been strictly applicable. it is true that the plsintiff-appellant ought to have been diieen?t in promptly seeking the amendment in the plaint at an early stage of the suit, mars se when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Stil, we are of the opinion that the propased amendment was mecessary for the purpose of bringing te the fore the resl questian én controversy between the parties and the refusal to permit the amendment would create neediess complications at the stage of the execution in the avent of che piaintiff-appellant succeeding in the suit,"
Yaus in Usha Devi's case, the Supreme Court, keeping in view of the decision in Sajjan Kumar (supra}, held as follows:
"We may clarity here that im this order we do not venture to make any pronouncement on the Jarger issue ss te the stage that would mark the corornencement. of trial of a suit but we simply find that the appeal in haned is closer an facts to the decision in Sajjan Kumar and following that decision the prayer for amendment in the present appeal should also be allowed."
in the instant case also, issues are anly framed and though affidavit in isu of examination in chief is filed, the recording of evidence has not yet cammenced. Therefore, in the well considered view of this Court, the facts of present Case are akin to the facts of the case in Usha Devi {supra} and Sajjan Kumar (supra). Hence, this Court is of the considered view that on the ground of mere delay amendments cannot be refused.
oye Te. Phe ratios in the decisions support the plea of the plaintiffs that an amendment cannot be refused merely on the ground of delay. Even as per the guidance in the decisions of the Suprerne Court, an amendment can be Hopes, Pa SO a 18 MSRM, J COREL NO 4158 af AOR batch permitted if it ts intended to determine the real question in controversy and that all amendments, which are necessary for the purp i determining rea questions of controversy between the parties, shall be allowed if such amendments sought for do not change the basic nature of the suit, A change in the Gescription of a party, which does not change the identity of the party, shall nat be considered as a change in the nature and character of the sutt. The power of amendment should be exercised in the larger interests of deing full and complete justice between the parties and that all amendments, which are necessary for the purpose of determining the real question in cantraversy, should be allowed, Further, if the granting of amendment really sub-serves the ullimate cause of justice and avoids further iftigation, the same should be allawed. The Court has also to consider whether the proposed amendment is intended to determine the real dispute between the parties. The law is well settled that all amendments, which satisfy the two conditions Gueht to be alowed: (8) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Further, as the refusal of the request seeking amendment does not preclude the plaintiffs from instituting a fresh suit, the refusal of the request leads to muttiplicity of the litigation. In the well considered wiew of this Court, the amendment only relates to correction of description of some of the parties without changing the identity of the parties. Therefore, for all the aforesaid reasons, granting of amendments sought for by the plaintiffs really sub-serves the ultimate cause of justice and avoids further litigation and therefore, the amendments sought for by the plaintiffs deserve > be allowed, the dominant purpose of the Rule is to minimise the Uiigation and ta enable the parties to have ali the issues relating to one dispute resolved im one suit, the amendments sought for by the plaintiffs can be allowed, in the considered view of this Court. In order to avoid multiplicity of sults, To owould be a sound exercise of discretion to permit the arnendments pa MSRN, J C.R.PNe. 4155 of BOTS & batch being sought for in the pending suit. As per the precedential guidance, the well settled rule of practice is not to dismiss the suit automatically but to allow the plaintiffs to make necessary amendments, if the plaintiffs seek to do so. The amendments, even if permitted at this stage, help in setting at rest the dispute between the parties ance and for all. In view of the ratios in the decisions, which are squarely applicable to the facts of the case, this Court is of the considered view that the arnendments sought for by the plaintiffs can be permitted in the facts and circumstances of the case and that, therefore, the 3 orders of the Court below do not brook interference.
£0. Before parting, it is necessary to refer to the other decisions relied UPON by the learned senior counsel appearing for the 1 defendant.
in the decision in K. Raheja Constructions Led., v. Alliance Ministries and others [AIR 1995 SC 1768] the issue is about limitation. The facts af the cited case show that the plaintiffs, having alleged in the plaint that the defendants refused to abide by the terms of the contract, filed a suit for perpetual injunction and then subsequently sought amendment of the plaint far the relief of specific perfarmance. Having regard ta the facts and the pleadings, the Supreme Court held that the relief of specific performance cannot be allowed to be added after lapse of 7 years since barred by law of linitatian.
in Jagan Nath v. Chander Bhan and others [(1988) 3 SCC 57], the facts show that the application for amendment of the written statement was filed during the pendency of the appeal preferred by the tenant and that the Tribunal held that the belated amendment could not be permitted. The samme was affirmed by the Supreme Court.
20 MSRM, J CAP .Mo.4155 of 2048 & batch The facts of the case in Voltas Limited v. Rolta India Limited 1(2044} 4 SCC Si6] show that the issue is as to whether the counter claim is barred by Law of limitations.
In the decision in Mashyak Grihnirman Sahakari v. Sanstha Maryadit os ' £2013} 9 5CC 485] the facts disclose that even before the institution of the suit the plaintiffs allegedly came to know about the conveyance deed but the necessary relief was not sought for in the plaint. Hence, the Supreme Court held that the amendment belatedly sought was clearly an afterthought and the amendment was introduced for abvieus purpose of averting inevitable COMSCOQUENCES, In Vishwambhar and others v. Laxminarayan and another [(2001) 6 SCC 163}, the facts of the cited case are as follows: - 'The plaint was saught to be amended by filing an application for amendment seeking to introdiice the prayer for setting aside the sale deeds. However, the 2" plaintiff attained majority, on 05.08.1975, and the 18 plaintiff on 20.07.1978. Though the suit was fled on 30.17.7980, the prayer seeking to set aside the sale deecs was made in December, 1985. Since Article 60 of the Limitation Act prescribes a periad af three years for setting aside a transfer of property made by the guardian of a ward, by the ward, who has attained majority, and as the periad is fo be computed fram the date when the ward attains majority, the suit was held to be barrea by law of Umitation though the trial Court considered the amended prayer and decided the suit on that basis.
. [n State of Madhya Pradesh v. Union of india and another [(2011) 12 SCC 2687, the facts of the cited case are as fallaws: - 'State of Mahdya Pradesh fled the Original Suit against the Union of india and another. The suit was filed before the Supreme Court under Article 131 of the Constitution of India, Notiftcations/Orders issued by the Uol under Section 58(3) & 58(4) of Madhya Pradesh Re-OQrganization Act, 2000 notifying the date of dissalution of the MP 4 ish, J G.R.PLNo. 4155 of 2018 & batch feowe Electricity Board for the undivided State of MP and apportioning its assets, rights & llabilities between the successor electricity Boards for the re- organized States of MP and Chhattisgarh are the subject matter and a declaration to declare the said notification/order as null and void and that the z Same are unconstitutional besides other reliefs are sought. [In that suit, an appUcation for amendment was filed by the State of Madhya Pradesh seeking amendment to the effect that the above said Sections of MPR Act are violative of Article 14 of the Constitution of India. The said application was contested by Ust on merits and on grounds of maintainability, delay and laches. The 2° defend (State of Chhattisgarh) oppased the amendment on the ground that no recourse can be permitted to challenge the validity of Central Law under the exclusive jurisdiction of the supreme Court under Article 131 of the Constitution of India. It is also contended that an ane hand the plaintiff is seeking a prayer that the 1° defendant must perform its duty in accordance with the statute and on the other it is challenging the very same statute.' in the above stated factual background, the Supreme Court held that the amendment, if permitted, and the plaintiff is permitted to challenge the vires of the pravisians, then the very basis on which the plaintiff is claiming its right to apportionment of its assets, rights & Liabilities of the undivided Board would cease to be In existence and that the suit would be rendered infructuaus and that the amendment introduces a totally different, new & inconsistent case and changes fundamental character of the suit. The Supreme Court inter alie held that the amendment was sought belatedly after the issues are framed and that the vires of the said Sections was never challenged in petition under Article 32 of the Constitution of India. Hence, the Supreme Court refused to permit the amendment.
The facts of the case in National insurance Co.Ltd., v. B. Rarna Goud arid other & [2004 (5) ALT 345] show that questioning the quantum of compensation awarded to the claimant, an insurer filed an appeal; the 49 MSRM, J at C.R.PNo.4195 of 2018 & batch claimant was awarded compensation sought for; no finding was recarded against him; the claimant though not an aggrieved person, having filed an appeal, sought amendment of the claim petition for enhancement of campensation. Since appeal itself is not maintainable, the High Court held that the question of amendment of claim petition in such an appeal does not arise for consideration, The facts of the decision in Chunchu Laxminarayana v. Smt. RP. Anandamma [2006 (6) ALT 430] show that substitution of cause of action by way of amendment was sought. Having regard to the facts of the case, the High Court of Judicature at Hyderabad found that wholesale replacement of cause of action which brings about a totally different and altogether new situation is impermissible. The Court also held that rights of legal representatives of deceased plaintiff to seek amendment of original pleadings being restricted right, they have to carry forward the suit in the same form as presented by their predecessor.
in Gopireddy Andhra Pratap Reddy v. Pachana Sudarshan Reddy and ethers (2007(6) ALD 297], on facts, the High Court of Judicature at Hyderabad found that the amendment of plaint seeking to introduce a plea that the praperty is the sthridhana property, which is contrary to the original claim of succession fo the property, cannot be permitted as it would change the cause of action, in Gorantla Kondalrayudu v. M/s.Marvel Organics rep., ty its partners (1997(5) ALT 663], an facts, the then High Court of Andhra Pradesh fauned that amendments being sought are not only inconsistent with the original pleadings but are alsa introducing new facts and that the proposed amendments if permitted would change the nature of the pleadings and cause prejudice to the defence of the defendants which is already taken and, therefore, the amendments sought are lable for rejection.
3 3 MSRM, d CELP.No 4155 of 2078 & batch The facts of the case in G. Pratap Reddy and others v. Worid Corman Wealth and Vethanta Trust, Hyderabad [2010(1) ALD 19] show that since the High Court is of the view that the trial Court did not consider the purport of amendment introduced by Act 22 of 2002, the matter was remanded to the trial Court to pass orders afresh in the interlocutory application filed for amendment of the pleadings duly taking into account the olirport of amendment caused ta Order Vi Rule 47 of the Code and various objections raised by the parties opposing the amendment.
Nunna Rama Krishna Nageswara Rao v. Bolisetty Lakshmi Venkata Naga Srinivasa Rao [20027 {1} ALD 632] is a case where the legal ety representatives of a deceased sought to take up a plea which is inconsistent with the earlier plea taken by the deceased party; further, the proposed plea, which has the effect of withdrawing the earlier admissions was found to be a fresh plea or defence; therefore, the Court heid that such amendment of pleading cannot be permitted.
The facts of the case in State of A.P. and others vo M/s.Pioneer Suilders, AP £ AIR 2007 SC 113] are as follows: 'A petition was initially filed under Sections 8 & 20 af the Arbitration Act. An application under Order VI Rule 17 of the Code was filed seeking to canvert the said proceeding inte a civil sult. it was contended before the Supreme Court that the original petition was also, in fact, in the nature of a civil suit as the Court fee paid was much more than what was required to be paid on a petition under the Arbitration Act. However, a finding on that aspect by the High Court was absent in the matter. rurther, the Supreme Court found that certain other factual aspects have aiso ta be gane inte. Hence, the Supreme Court remanded the matter ta the High Court for consideration of the issue with regard to maintainability and merits of the application fled by the Contractor under Order VI Rule 1? of the Code.
2d MSRM, J C.R.PONG.4di85 of 2078 & batch in Vempalli Srinivasula Reddy v. V.M.Ramakrishna Reddy and others f2006¢1) ALT 160], the then High Court of Andhra Pradesh considered the effect of proviso added to Order Vi Rule 17 of the Code by Amendment Act 22 ef 2002.
in Rahimmunnisa Begum and ethers v. Mohd. Mohammadulla Khan Durrani (died) by L.Rs and others [ 2004(2} ALD 514], the facts of the case disclose that in a suit for partition wherein the plaintiff has taken a plea that the transaction is a benami transaction, amendment of plaint was sought on the basis of a Wil, after the preliminary decree has become final. On facts the Court found that the amendment if allowed changes the nature of the suit and results in reapening of the preliminary decree, which has become final, and that, therefore, the amendment of the plaint cannot be allowed.
Theretore, the decisions above referred being distinguishable on facts are not helpful to the revision petitioner - 1% defendant and da not advance his case in the light of the legal position, which is applicable and adverted to SUPT, 2%. Viewed thus, this Court finds that the trial Court is justified in allowing the applications of the plaintiffs.
2a. in the result, all the Civil Revision Petitions are dismissed. However, since the affidavits filed in support of Interlocutory Applications, which are sworn statements, shall not be permitted to be amended, the plaintiffs are permitted to file additional affidavits in the relevant IAs, which are pending, with necessary amended pleadings as a sequel to these orders. On filing of the neat copy of the plaint and copies of additional affidavits/amended pleadings in the relevant IAs by the plaintiffs, the trial Court shall give an opportunity to the 1S defendant and other contesting defendants to file additional pleadings MSRAA, J CORP Mo .4195 of 2018 & batch to answer the averments in the amended plaint and the amended pleadings in the [As filed by the plaintiffs.
There shall he no order as to costs.
Miscellaneous petitions, if any, pending in this revision shall stand closed, SD/- M.A. SUBHAN ASSISTANT REGISTRAR HTRUE COPY?! SECTION OFFICER To, One Fair Copy to Hon'ble Sri Justice M. SEETHARAMA MURT! (for his lordship's kind perusal)
4. The IV Additional District Judge, Guntur, Guntur District(alowng with case records if any)
2. One cc ° Ms. C. Sindhu Kumari Advocate [OPUC] 3 One CC to SMT. V. Dyumani Advocate [OPUC]
4. OLR copies
5. The Under Secretary, Union of India, Ministry of Law, Justice and Campany Affairs, New Delhi
6. The Secretary, Andhra Pradesh Advocates Association, High Court Bulidings, Vijayawada
7. Two CD Copies PSP ey ge"
THe was \ Mim on, ob hy ¥ ty, Z, é ec Cieensels a frre, / LLL A pryy, fo g i wa g yite, nat p to WKY ee Pry %, % A = 3 ae WD EC, 4 we winreTet NG THE CRP WITHOUT COST 12/06/2019 i o i CRP.No.4195,4280,4289,4302 and 4305 of 2018 HIGH COURT DATED COMMON ORDER DISM