Andhra Pradesh High Court - Amravati
Bathala Jayamma vs Bathala Ramakrishnama Naidu on 20 September, 2019
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
CIVIL REVISION PETITION Nos.978 & 1010 OF 2019
COMMON ORDER:-
C.R.P.No.978 of 2019:-
This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order, dated 28.02.2019, in I.A.No.728 of 2018 in O.S.No.117 of 2012 passed by the learned Senior Civil Judge, Puttur, Chittor District where under and whereby, the petition filed by the petitioners/defendant Nos.7 to 9 under Order VI Rule 17 and Section 151 of the Code of Civil Procedure, 1908 to amend the written statement as detailed in the petition, was dismissed.
2. The petitioners, who are defendant Nos.7 to 9 in the suit, filed the petition under Order VI Rule 17 and Section 151 C.P.C. alleging that the suit is filed for partition and the suit is posted for evidence of the defendants; that during examination of P.Ws.1 and 2, they admitted that they are out of possession and they are not in joint possession of the property of the defendants and therefore, the Court fee paid under Section 34(2) of the Andhra Pradesh Court Fees and Suits Valuation Act 1956 (for short, "the Act") is not in accordance with law and sought leave of this Court to amend the written statement to raise a specific plea that the plaintiff has to pay Court fee under Section 34(2) of the Act.
3. The petition is opposed. Respondent No.1 filed counter while asserting that they are in joint possession and enjoyment of the property and the Court fee paid by him is in accordance with law under Section 34(2) of the Act.
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4. Admittedly, the suit is filed for partition and the Court fee paid thereon is under Section 34(2) of the Act, while, claiming that they are in joint possession and enjoyment of the property. The petitioners did not raise any specific plea as to the correctness of the Court fee paid on the plaint, but according to Section 11 of the Act, in every suit, the Court shall, before ordering the plaint to be registered, decide on the allegations contained in the plaint and on the materials furnished by the plaintiff, the proper fee payable thereon. The decision of the Court under clause (a) regarding the proper fee payable shall be subject to review from time to time as occasion requires. Any defendant may plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before hearing of the suit, as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V to 1908). If the Court decides that the subject matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject matter of the suit shall be valued in accordance with the Court's decision and the deficit fee shall be paid. If within the time allowed, the subject matter of the suit is not valued in accordance with the Court's decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. Therefore, no specific plea is required to be raised by these petitioners by amending the written statement at this stage of adducing defendants' evidence i.e., after commencement of trial. Apart from that, there is a clear interdict to claim such relief in view of bar to Order VI Rule 17 C.P.C., which 3 prohibits entertaining an application under Order VI Rule 17 C.P.C. to amend the pleadings, unless, the petitioner satisfies the Court that the petitioner exercised due diligence but failed to bring those facts on record. What is due diligence is defined by the Apex Court in between J.Samuel & Others vs. Gattu Mahesh & Others in Civil Appeal No.561 of 2012. Due diligence is also defined in between Bharat Petroleum Corporation Vs. Precious Finance Investment Private Limited1 In the first judgment, the Supreme Court, while dealing with an application under Order VI Rule 17 C.P.C. for amendment of the plaint, allowed the Civil Appeal holding that the respondents therein have not exercised due diligence. Even in the absence of any such plea, the Court is under an obligation to decide the appropriate Court fee under Section 11 of the Act and therefore, the proposed amendment is not necessary for deciding the real controversy. Hence, this petition is liable to be dismissed.
5. Accordingly, this Civil Revision Petition is dismissed. However, the trial Court is directed to decide the issue of Court fee if the petitioners raise such issue during hearing. There shall be no order as to costs.
6. C.R.P.No.1010 of 2019:-
This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order, dated 28.02.2019, in I.A.No.724 of 2018 in O.S.No.117 of 2012 passed by the learned Senior Civil Judge, Puttur, Chittor District whereunder and whereby, the petition filed by the petitioners/defendant Nos.7 to 9 1 2006 (6) Bom CR 510 4 under Section 151 C.P.C. to reopen the suit to cross examine P.Ws.1 and 2 in detail and to file amended written statement by amending the pleadings, was dismissed.
7. In view of the dismissal of C.R.P.No.978 of 2019, this Civil Revision Petition is also dismissed. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in these Civil Revision Petitions shall stand closed.
_________________________________________ JUSTICE M.SATYANARAYANA MURTHY Date : 20.09.2019 AMD 5 THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION Nos.978 & 1010 OF 2019 Date : 20.09.2019 AMD