Telangana High Court
Gundlapally Ranga Rao vs Akkiraju Panduranga Rao on 12 June, 2023
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION Nos.411 of 2023 and 417 of 2023
COMMON ORDER:
The Civil Revision Petition No.411 of 2023 is filed by the petitioner/respondent/defendant aggrieved by the decree and judgment dated 28.03.2019 passed in I.A.No.229 of 2017 in O.S.No.52 of 2016 on the file of the Principal Junior Civil Judge at Kodad.
2. The Civil Revision Petition No.417 of 2023 is filed by the petitioner/respondent/defendant aggrieved by the docket order dated 20.12.2022 passed in I.A.No.515 of 2022 in I.A.No.230 of 2016 in O.S.No.52 of 2016 on the file of the Principal Junior Civil Judge at Kodad.
3. I.A.No.229 of 2017 is filed by the respondents/petitioners/ plaintiffs under Order VI Rule 17 and Section 151 of C.P.C. to amend the plaint schedule boundaries.
4. I.A.No.515 of 2022 in I.A.No.230 of 2016 in O.S.No.52 of 2016 is filed by the respondents/petitioners/plaintiffs to amend the schedule in I.A.No.230 of 2016 filed for seeking temporary injunction. 2
Dr.GRR,J C.R.P.Nos.411 and 417 of 2023
5. The parties are hereinafter referred as arrayed before the trial Court.
6. The plaintiffs filed a suit for perpetual injunction claiming that they were owners and possessors of the agricultural land in Sy.Nos.19/2, 18/5 to an extent of Ac.2-75 cents and Ac.0-71 cents totally admeasuring Ac.3-49 cents situated at Nadigudem village and mandal, Nalgonda District. They contended that the defendant who was having lands on the northern boundary of the suit schedule property was causing interference with their possession. They filed I.A.No.230 of 2016 seeking temporary injunction. An exparte ad- interim injunction order was passed in favour of the plaintiffs. The defendant made his appearance and filed his written statement in O.S.No.52 of 2016 and counter in I.A.No.230 of 2016. The defendant in his written statement as well as in the counter contended that he and his family were in possession of the suit schedule property since more than 55 years and their family had perfected their title by adverse possession and contended that the land in Sy.Nos.18/5 and 19/2 was not a compact block as contended by the plaintiffs. The land in Sy.No.18/5 was located towards western side of land in Sy.No.19/2 and both these lands were intervened by a vaagu. Under the guise of temporary injunction, the plaintiffs got cut the toddy trees and attempted to level the vaagu by engaging a dozer machine. He contended that the land in Sy.No.18/5 was a wet land and the land in Sy.No.19/2 was a lemon garden. A 3 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 suit for simple injunction was not maintainable without seeking the relief of declaration of title, as the plaintiffs were not in possession in the suit property since more than 55 years, they would not get any right over the suit land and that they had to file a suit for recovery of possession.
7. The defendant in the suit had filed an application vide I.A.No.719 of 2016 in I.A.No.230 of 2016 seeking appointment of an Advocate Commissioner to make note of the physical features of the schedule property contending that the plaintiffs were changing the nature of the land and boundaries. The same was allowed by the trial Court and an Advocate Commissioner was appointed for noting down the physical features.
8. Aggrieved by the said order in I.A.No.719 of 2016 dated 17.02.2017, the plaintiffs preferred a Civil Revision Petition vide C.R.P.No.861 of 2017. The same was dismissed by this Court on 14.07.2017, confirming the orders of the trial court dated 17.02.2017 in I.A.No.719 of 2016 in I.A.No.230 of 2016. The Advocate Commissioner also submitted his report on 08.08.2017.
9. The plaintiffs filed the above applications seeking to amend the plaint schedule boundaries. The defendant filed counter vehemently opposing the applications contending that the mistake crept by the petitioner in stating the boundaries was not due to inadvertence, the petitioner was not in 4 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 possession of the suit schedule property to know about their boundaries and was not entitled to seek for rectification and if such corrections were allowed, it would amount to changing the entire cause of action and the nature of the suit.
10. However, the trial Court allowed the applications observing that no prejudice could be caused to the respondent/defendant by allowing the said applications as the respondent/defendant would have an opportunity to file additional counter and additional written statement after amendment.
11. Aggrieved by such orders dated 28.03.2019 in I.A.No.229 of 2017 in O.S.No.52 of 2016 and the docket order dated 20.12.2022 in I.A.No.515 of 2022 in I.A.No.230 of 2016 in O.S.No.52 of 2015, the defendant filed these Civil Revision Petitions vide C.R.P.Nos.411 of 2023 and 417 of 2023 respectively contending that the plaintiffs consciously pleaded that the boundaries of Sy.Nos.19/2 and 18/5 were one and the same and further pleaded that it was one bit (compact piece of land). The trial Court ought to have appreciated the pleadings in the written statement, counter and the report of the Advocate Commissioner which unequivocally established the nature of cultivation and boundaries to the suit schedule property. The trial Court miserably failed to notice that the averments in the plaint were bereft of any details of cultivation in the schedule properties and failed to appreciate that the order created a scope for new cause of action and thereby widened the 5 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 scope of the injunction suit. The trial court failed to notice that the respondents/plaintiffs had taken steps to file an application under Order VI Rule 17 for amendment of the boundaries in the suit schedule properties, only after filing of the written statement and counter and also filing an application for appointment of an Advocate Commissioner by the defendant. The court below in a very casual manner permitted the respondents/plaintiffs to amend the boundaries, detrimental to the right, title, interest, physical possession and enjoyment of the petitioner/defendant over the suit schedule property and prayed to allow the Civil Revision Petition.
12. Heard the learned counsel for the petitioner/defendant and the learned counsel for the respondents/plaintiffs.
13. As seen from the plaint filed in the month of April 2016, the plaintiffs had shown the suit schedule property as an agricultural land in Sy.Nos. 19/2 and 18/5 to an extent of Ac.2-78 cents and Ac.0-71 cents totally admeasuring Ac.3-49 cents situated at Nadigudem village and mandal, Nalgonda. They further stated that the total lands were in one compact block in one bit and stated the boundaries in Sy.No.19/2 as follows:
North : Plaintiffs land;
South : Agricultural land of Gundapally Vedadri; East : Agricultural land of Gundapally Vedadri; West : Vaagu.6
Dr.GRR,J C.R.P.Nos.411 and 417 of 2023
14. An application vide I.A.No.229 of 2017 was filed on 06.07.2017 by the petitioners/plaintiffs contending that due to inadvertence the boundaries of Sy.No.19/2 alone were mentioned but the boundaries of Sy.No.18/5 had not been mentioned. The said mistake was crept due to inadvertence, but not due to negligence or wanton, they noticed the mistake in mentioning the boundaries in the suit schedule property only after filing the counter by the respondent/ defendant. They further contended that the case was at the stage of hearing the I.A. and no prejudice would be caused to the respondent if the boundaries in the plaint schedule were amended.
15. The cardinal test for deciding an application for amendment is:
i) Whether the amendment is necessary for the determination of the real question in controversy?
ii) Can the amendment be allowed without injustice to the other side?
Not only the first condition but the second condition is also important, according to which, no amendment can be allowed which would cause injustice to the opposite party. It is settled law that amendments can be allowed if it can be made without causing injustice to the other side. Though the courts have discretion in the matter of amendment of pleadings, the Courts power must be exercised judiciously and with great care. It is also settled that no application for amendment is to be allowed after the trial has commenced, 7 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 unless the Court comes to the conclusion that inspite of due diligence, parties could not raise the matter before commencement of trial. It is also necessary to see that whether the proposed amendment would constitutionally or fundamentally changes the nature and character of the case.
16. As contended by the defendant in the counter filed by him, the application seeking amendment for rectification of boundaries was filed only after the defendant filed an application seeking appointment of an Advocate Commissioner in the suit. The allowing of the application by the trial court would change the boundaries of the suit introducing a new cause of action. This Court in Muthyam Suryanarayana vs Bondugula Varija Reddy1 held that:
"11. It is the duty of the plaintiffs to file the suit by enclosing correct schedule of the property. Once the suit is filed and ad-interim injunction is granted basing on the schedule of the property annexed to the plaint by the plaintiffs, amending the schedule thereafter will change the nature of the property. The respondents/plaintiffs have completely changed the schedule of the property and it is contended by the petitioner/defendant that there is no such property as alleged by the respondents/plaintiffs. The amendment sought by the respondents/plaintiffs will introduce a fresh cause of action and therefore, the petitioner/ defendant will suffer irreparable loss by the proposed amendment. The trial Court erred in coming to the conclusion that no prejudice will be caused to the petitioner/defendant if the schedule 1 2021 (3) ALD 478 8 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 of the property is amended. Even whether any prejudice is caused to the petitioner/defendant or not is not the criteria, and such an amendment is not permissible under law. In fact, it is always open for the respondents/plaintiffs to withdraw the suit and file a fresh suit with correct schedule of the property..."
17. The said observation is exactly applicable to the facts of this case also. The amendment sought by the plaintiffs would change the nature of the property and will introduce a new cause of action. The trial Court without observing that the suit was filed for perpetual injunction mentioning the details of the schedule properties in a certain manner and the plaintiffs had also obtained an exparte ad-interim injunction as per the said schedule but now seeking amendment of the schedule boundaries after the defendant filed an application for appointment of an Advocate Commissioner to note the physical features of the property contending that they were not the same as pleaded by the plaintiff, allowed the application in a very casual manner.
18. The application is filed by the plaintiff even not immediately but after the defendants filed their written statement and counter stating that the schedule given by the plaintiff for the suit survey numbers was not correct and that they were not in one compact block but were separated by a stream (vaagu). As such the amendment sought by the plaintiff appears to be not bonafide. Hence, the trial court ought not to have allowed the application. 9
Dr.GRR,J C.R.P.Nos.411 and 417 of 2023
19. The judgment of the Hon'ble Apex Court relied by the learned counsel for the respondents/plaintiffs in Sajjan Kumar Vs. Ram Kishan2 has no application to the present facts of the case. It was a suit for eviction filed by the owner and landlord against the respondent/tenant wherein an application for amendment was filed at the final stage, the Hon'ble Apex Court held that:
"... the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff- appellant succeeding in the suit."
20. It is also necessary to see whether the amendment sought is bonafide or malafide and to send a clear message to the parties to be careful while drafting the original pleadings. As it is always open for the respondents/plaintiffs to withdraw the suit and to file a fresh suit with necessary amendments to the suit schedule property, it is considered fit to allow the Civil Revision Petition filed by the petitioner/defendant by setting aside the order dated 28.03.2019 in I.A.No.229 of 2017 in O.S.No.52 of 2016 and the docket order dated 20.12.2022 in I.A.No.515 of 2022 in I.A.No.230 of 2016 in O.S.No.52 of 2016.
2
(2005) 13 SCC 89 10 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023
21. In the result, both the Civil Revision Petitions vide C.R.P.Nos.411 of 2023 and 417 of 2023 are allowed by setting aside the impugned orders of the trial court dated 28.03.2019 in I.A.No.229 of 2017 in O.S.No.52 of 2016 and the docket order dated 20.12.2022 in I.A.No.515 of 2022 in I.A.No.230 of 2016 in O.S.No.52 of 2016.
Miscellaneous Applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J June 12, 2023 ss 11 Dr.GRR,J C.R.P.Nos.411 and 417 of 2023 THE HONOURABLE Dr. JUSTICE G. RADHA RANI CIVIL REVISION PETITION Nos.411 of 2023 and 417 of 2023 June 12, 2023 ss