Andhra Pradesh High Court - Amravati
Dr. Balabolu Ramesh vs Savvana Radharamanamma on 6 February, 2020
Author: M. Venkata Ramana
Bench: M. Venkata Ramana
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.R.P.No.950 of 2019
ORDER:
This Civil Revision Petition is directed against the order of the Court of learned XI Additional District Judge - cum - the Sessions Judge for trial of cases under Scheduled Castes & Scheduled Tribes (POA) Act, Visakhapatnam, in I.A.No.455 of 2018 in O.S.No.190 of 2018, dated 29.11.2018.
2. The plaintiffs are the petitioners. Defendants 1 to 13 are the respondents.
3. The petitioners laid the suit for partition of the plaint schedule properties, in all, to an extent of Ac.4.58 cents with structures existing therein, in old Srikakulam village of Srikakulam District. These properties are non-agriculture in nature. Respondents 1 to 6 are sailing with them. It appears that the main contest in the suit is from the defence set up by respondents 7 to 9. Respondent No.9 is claiming that he is the adopted son of late Sri Dusa Audinarayana Rao and as against it, the petitioners have been claiming reversionary rights to succeed to the estate of late Sri Dusa Audinarayana Rao, after his death. This property undisputedly originally belonged to late Sri Dusa Balarama Swamy Naidu, who is stated to be a common ancestor of these parties.
4. The trial is yet to commence in the suit. At that stage, the petitioners filed I.A.No.455 of 2018 to amend the plaint as stated in the affidavit filed by the second petitioner in support of the petition. It is to be noted that in the petition filed in I.A.No.455 of 2018, the petitioners did not set out the text of the proposed amendment. This amendment MVR,J CRP No. 950 of 2019 2 sought is very lengthy in nature, almost covering the plaint and substituting the plaint schedule. In the sense, separate extents with reference to boundaries are described in respect of each of the items originally set out in the plaint schedule.
5. The reason assigned for the proposed amendment as seen from the affidavit of the second petitioner filed in the trial Court is that upon change of their advocate in the trial Court, they were advised to bring out the proposed amendment, since essential and necessary pleadings were not initially brought out and that there are certain typographical mistakes, which are required to be corrected. Another reason assigned in support of the proposed amendment is that the 9th respondent made certain alienations out of the plaint schedule properties and that during lifetime of Sri late Dusa Audinarayana Rao, certain alienations were carried out. It is also stated that Smt.Dusa Sarojini Ramayamma, W/o. late Sri Dusa Audinarayana Rao, also made certain alienations out of the plaint schedule lands. According to the petitioners, they came to know about these alienations subsequent to filing the suit and therefore, they felt the necessity of bringing out these facts in the pleadings in the plaint.
6. The petitioners further stated that since respondents 7 to 9 were making hectic efforts to alienate the plaint schedule lands, in a hurry, they were constrained to institute the suit without bringing these material pleadings.
7. Thus setting out the alleged reasons, the petitioners requested to permit the proposed amendment claiming that it would not take the respondents by surprise nor it would change cause of action nor the MVR,J CRP No. 950 of 2019 3 structure of the suit. They also sought a further relief of mesne profits by the proposed amendment.
8. A detailed counter was filed on behalf of the contesting 9th respondent opposing the proposed amendments. The main objections set forth by the 9th respondent are that the reasons assigned by the petitioners as to lack of knowledge or oversight, since they being highly educated, cannot be believed and that the plaint was initially filed as per their instructions. They also contended that deletion of pleadings is not permissible and even otherwise when they engaged an advocate, who is appearing for them in the trial Court about two years prior to filing the petition for proposed amendment, the reason so assigned cannot be correct. Denying that the alienations as set out in the affidavit of the second petitioner either by Sri late Dusa Audinarayana Rao, or his wife or by the 9th respondent were not to the knowledge of the petitioners and such of those alienations by Sri late Dusa Audinarayana Rao, were subject matter of a batch of suits in O.S.No.75 of 1989 and others, which ultimately decided against the petitioners in the appeal in this Court, it is stated that the proposed amendment is clearly barred by limitation.
9. The 9th respondent further denied that the petitioners were not aware of the schedules and survey numbers of the lands and the amendment sought, of the schedule is not permissible. It is further contended that the proposed amendment is in the nature of completely changing the pleadings in the plaint than originally presented and it's very basic structure. It is further contended that the proposed relief for mesne profits cannot be permitted and adding a new paragraph with new facts is clearly impermissible. Specifically denying everyone of the proposed MVR,J CRP No. 950 of 2019 4 amendments sought to be brought out in the plaint and that there is no necessity to add or substitute or delete any of the words in the plaint, it is also contended that the petitioners have resorted to suppression of material facts.
10. Thus mainly objecting, the 9th respondent requested to reject the request of the petitioners.
11. Considering the material as well as the contentions of the petitioners, learned trial Judge by the impugned order dismissed the petition mainly observing that the petitioners did not comply with Rule 28 of Civil Rules of Practice setting out details of the proposed amendment as part of the petition, that alienations made during pendency of the suit are subject to result therein and attempt to delete part of the plaint is impermissible. It is further observed that the petitioners cannot replace or add the schedule appended to the plaint and that the petition is devoid of merit.
12. Sri Anand Rao, learned counsel for the petitioners and Sri S.S.Prasad, learned senior counsel representing Sri Vinod Kumar Tarlada, representing respondent No.9 addressed arguments in this petition.
13. Now, the point for determination is: - "Whether the proposed amendment of the plaint be permitted for the reasons stated by the petitioners and if the order of the learned trial Judge is proper?"
14. The reasons assigned by the petitioners to bring out proposed amendments in the plaint stated supra need to be considered, not only basing on the circumstances under which they are sought to be projected, MVR,J CRP No. 950 of 2019 5 but also on the ground of their sheer length and extent, apart from the factor of diligence.
15. The version of the petitioners that they were in a hurry to present the plaint, which is one of the prime reasons to refer to such facts as to alienations attributed, has to be discounted. It is not as though the petitioners were not aware of the alienations attributed to Sri late Dusa Adinarayana Rao. They adverted to the alienations in the earlier litigation in O.S.No.69 of 1989, 77 of 1989 and 75 of 1989 on the file of the Court of learned Principal Subordinate Judge, Srikakulam, and appeals preferred against the decree and judgment therein in A.S.No.823 of 1997, 2386 of 1998 and 2387 of 1998. Alienations attributed to Smt.Sarojini Ramayamma, wife of Sri late Dusa Adinarayana Rao, and 9th respondent cannot be compelling factors for such hurried presentation as claimed. Even if there are alienations during the course of the trial as rightly observed in the order of the trial Court, they shall be subject to the result in the suit.
16. In respect of the advice they had from their learned counsel in the trial Court, as rightly contended for respondent No.9, learned counsel entered appearance on their behalf about two years prior to filing the petition. It is farfetched to consider that the necessity of proposed amendments like certain typographical mistakes etc., would have been advised at that stage. In the guise of bringing out amendments, the petitioners cannot request to direct deletions of certain portions of averments from the plaint.
17. However, Sri Ananda Rao, learned counsel for the petitioner in elaboration of his submissions, relied on a judgment of Hon'ble Supreme MVR,J CRP No. 950 of 2019 6 court in Mohinder Kumar Mehra vs. Roop Rani Mehra & Ors.1. Observations of the Hon'ble Supreme Court in Mahila Ramkali Devi & Ors. vs. Nandram (Dead) through Legal Representatives & Ors.2 relied on in the above ruling, in para-19, in this respect, are as under:-
"19. While considering the prayer of amendment of the pleadings by a party, this Court in the case of Mahila Ramkali Devi & Ors. vs. Nandram (Dead) through Legal Representatives & Ors., (2015) 13 SCC 132 has again reiterated the basic principles, which are to be kept in mind while considering such applications in paragraphs 20,21 and 22, which is quoted as below:-
"20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21. In our view, since the appellant sought amendment in para 3 of the original plaint, the High Court ought not to have rejected the application.
22. In Jai Jai Ram Manohar Lal v. National Building Material Supply3, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations."
18. Basing on the above ruling, it is contended that having regard to the fact that trial has not yet commenced in the suit, the proposed amendments can be permitted.
19. Reliance is also placed in Varun Pahwa v. Mrs. Renu Chaudhary3 to support the contention that inadvertent mistakes could be corrected by the proposed amendments. In para-9 of this ruling, in the given facts and circumstances, observed as under:
"9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from 1 . AIR 2017 SC 5822 2 . (2015) 13 SCC 132 3 . 2019(1) HLT 150 (SC) MVR,J CRP No. 950 of 2019 7 the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations....."
20. Further reliance is placed for the petitioners in P.Shailaja Kumari v. Vasantha Malavika and another4, Madupu Narsimha Chary and another v. Neelam Saraiah and others5, G. Rayinder Reddy v. G. Prathap Reddy6 and Gangu Purusharamulu v. Poola Balakrishna Reddy and another7.
21. Repelling these submissions, Sri S.S.Prasad, learned senior counsel, raised the following contentions:
1. The amendments sought are extraordinary in nature, substantial and practically changing the frame of the suit.
2. The proposed amendments are barred by limitation and any amendment to be permitted cannot relate back to the date of the suit and that it comes into force from the date of the petition.
3. The proposed amendments would effect the rights of third parties.
4. Major part of the amendments sought are meaningless, inappropriate, ununderstandable and unnecessary, which tend to touch upon the merits of the claim.4
. 2019(3) HLT 33 5 . 2019(2) HLT 152 6 . 2019(2) HLT 1 7 . 2019(3) HLT 254 MVR,J CRP No. 950 of 2019 8
22. Sri S.S.Prasad, learned senior counsel, elaborating further, extensively, referred to the contentions of the affidavit filed in support of this petition as well as text and contents of the proposed amendments.
23. The nature of the amendments alone can be considered in a petition filed under Order-6, Rule-17 CPC, with reference to the stage at which it is sought to be brought out and its effect on frame of the suit. Merits of the proposed amendments, as is settled in law, cannot be considered nor can be touched upon.
24. In this context, if the proposed amendments are considered, as already stated, they are lengthy, touching upon major part of the pleadings in the plaint. Thereby, it cannot be stated that the contention so advanced for the 9th respondent that they tend to change the structure of the suit as well as its frame, is improper.
25. In as much as alienations are sought to be questioned as is adverted to by the petitioners, they do affect the rights of the third parties, particularly, when the tabulated statements, which are described as details of alienations in the affidavit filed in support of the petition referring to different items of the plaint schedule, are considered. Therefore, by virtue of the proposed amendments, these new facts cannot be permitted to be pleaded.
26. With reference to contents of the proposed amendments and while describing them, more than once, it is stated that certain words and sentences have to be interpolated or deleted. Such description is the basis for the contention of Sri S.S.Prasad, learned senior counsel, to characterise major part of the amendments as inappropriate or ununderstandable MVR,J CRP No. 950 of 2019 9
27. A careful consideration of the proposed amendments, gives an impression that not only new facts are attempted to be introduced but also setting out different sets of causes of action affecting the frame of the suit. Though the relief sought is mainly for partition, the contents sought to be introduced by proposed amendments tend to affect the basic structure of the plaint.
28. When these circumstances are cumulatively taken into consideration, they make out that the course adopted by the petitioners for such purpose is not proper and the amendments, as sought, cannot be permitted. In the back drop of these circumstances, when the case of Madapu Narsimha Chary and another (4 supra) relied on for the petitioners is considered, it cannot be made applicable. In fact, it was a case, where on the ground of want of diligence, the proposed amendment of the written statement was rejected. In fact, the law favours a liberal approach in respect of amendment of the written statement than the plaint.
29. When the factor of diligence is considered, again it has to be stated that the reasons assigned by the petitioners themselves expose their failure to exercise of the same to a greater extent. The reason that they were in a hurry to present the plaint as if it was an attempt to stop or prevent any alienations of the properties now in dispute and waiting for an advice of their present learned counsel in the trial Court for nearly two years are definite circumstances that point out that the petitioners failing to exercise of diligence in prosecuting this matter. Particularly, this factor has profound significance considering the stage, when the petitioners have sought to amend. Merely because, the trial has not commenced, in MVR,J CRP No. 950 of 2019 10 view of express provision under Order-6, Rule-17 proviso of CPC as to impact of diligence, when amendment of pleadings is sought, as rightly contended for the 9th respondent, it is a fatal circumstance against the petitioners in this respect. In this backdrop, reliance sought to be placed on Smt. P.Shailaja Kumari (3 supra) or in respect of deletion of words relying on G.Rayinder Reddy (5 supra), where the proposed amendment was innocuous and Gangu Parusharamulu (6 supra), cannot assist the contention of the petitioners.
30. Sri S.S.Prasad, learned senior counsel for the 9th respondent, laid emphasis on bar of limitation in respect of the propose amendments. Support is sought to be drawn in this respect from Radhika Devi vs. Bajrangi Singh and others8, T.L.Muddukrishna and another vs. Lalitha Ramchandra Rao (Smt)9, Vijendra Kumar Goel vs. Kusum Bhuwania (Smt.)10 and L.C.Hanumanthappa (since dead) by his Legal Representatives vs. H.B. Shivakumar11.
31. Having regard to the effect of Articles 58 and 59 of the Limitation Act, any declaration in respect of a sale has to be sought within three years from the date of execution. Nonetheless, it is a mixed question of fact and law. Hence, parties are required to lead evidence in respect thereof making out necessary material and circumstances to support the contention as to bar of limitation or whether the claim so made is within time. It is too hazardous course to consider the effect of 8 . (1996) 7 Supreme Course Cases 486 9 . (1997) 2 Supreme Court Cases 611 10 . (1997) 11 Supreme Court Cases 457 11 . (2016) 1 Supreme Court Cases 332 MVR,J CRP No. 950 of 2019 11 bar of limitation, when certain amendments to the plaint are sought to be introduced.
32. Sri Anand Rao, learned counsel for the petitioners, in this context relied on Mohinder Kumar Mehra vs. Roop Rani Mehra & Ors. (1 supra) inviting the attention of this Court to the observations of the Hon'ble Supreme Court, in this context, in para 18 are as under:
"18. ....final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff......"
33. Therefore, the question of bar of limitation has to be relegated to be considered after the parties let in evidence in the course of trial and not at this stage.
34. However, as rightly contended for the 9th respondent by his senior counsel, having regard to the extraordinary nature of the proposed amendments, which result in any amount of prejudice if permitted, to the 9th respondent as well as other contesting respondents in the suit, they cannot be permitted.
35. Sri S.S.Prasad, learned counsel for the 9th respondent also relied on Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and others12 pointing out the effect of delay in seeking 12 . (2018) 11 Supreme Court Cases 722 MVR,J CRP No. 950 of 2019 12 amendments in para 15 of this ruling. In this respect, it is observed in the given facts and circumstances, as under:
"15...., the application was filed after 27 years of filing of the suit. Of course, the power to allow the amendment of suit is wide and the court should not adopt hypertechnical approach. In considering amendment applications, court should adopt liberal approach and amendments are to be allowed to avoid multiplicity of litigations. We are conscious that mere delay is not a ground for rejecting the amendment. But in this case in hand, the parties are not rustic litigants; all the respondents are companies and the dispute between the parties is a commercial litigation. In such facts and circumstances, the amendment prayed in the chamber summons filed under Order 22 Rule 10 CPC ought not have been allowed, as the same would cause serious prejudice to the appellant. In our view, the impugned order, allowing Chamber Summons No. 187 of 2014 filed after 27 years of the suit would take away the substantial rights of defence accrued to the appellant and the same cannot be sustained."
36. Reasons are assigned supra holding that there are several disabling factors to consider the request of the petitioners for amending the plaint. If the proposed amendments are permitted, it amounts to presenting almost a new plaint in the place of the existing pleadings. Ultimately, it is not the course intended by Order-6, Rule-17 CPC nor it is desirable to aver the amendments sought particularly in the given facts and circumstances of the case.
37. The learned trial Judge has assigned reasons in refusing to accept the proposed amendments. Basing on the material available, the conclusions so drawn cannot be found fault with and it is an appropriate exercise of discretion by the learned trial Judge.
38. Thus finding no reason or justification to permit the proposed amendments, confirming the order under revision, this revision petition has to be dismissed.
39. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs.
MVR,J CRP No. 950 of 2019 13 As sequel thereto, all miscellaneous petitions, if any, shall stand closed. Interim Order, if any, shall stand vacated.
________________________ JUSTICE M.VENKATA RAMANA Dt:06.02.2020 Rns/RRR MVR,J CRP No. 950 of 2019 14 HON'BLE SRI JUSTICE M.VENKATA RAMANA CIVIL REVISION PETITION No. 950 of 2019 Dt:06.02.2020 Rns/RRR