Telangana High Court
Chotu Miya, Shaik Faqruddin vs Mohammed Suleman,Goremiya on 17 November, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.6294 OF 2018
ORDER:
Aggrieved by the order dated 03.08.2018 in I.A.No.222 of 2018 in O.S.No.454 of 2008 on the file of learned III Additional District Judge, Ranga Reddy District at L.B.Nagar, the plaintiff Nos.20 to 23 have filed the present Civil Revision Petition.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned III Additional District Judge, Ranga Reddy District at L.B.Nagar.
3. The brief facts of the case are that the plaintiff Nos.1 to 19 have filed suit for partition and separate possession in respect of suit schedule property against defendant nos.1 to 57. Subsequently, some of the defendants were transposed as plaintiff Nos.20 to 23 vide orders dated 18.10.2016 in I.A.No.430 of 2015. Thereafter, plaintiff Nos.20 to 23 have filed I.A.No.222 of 2018 under Order VI Rule 17 read with Section 151 of the Civil Procedure Code read with Rule 28 of the Civil Rules of Practice seeking amendment of the plaint on the ground that they are entitled for share in the suit schedule property. The plaintiff Nos.1 to 19 have filed counter affidavit denying the averments of the petition and prayed to dismiss the 2 MGP,J Crp_6294_2018 petition due to lack of bona fides. The respondent No.53 i.e., M/s. Theme Constructions Private Limited filed its counter contending that the legal heirs of original pattedar sold the property to respondent No.53 and their associates under a registered sale deed dated 06.10.2005 with different extents. It was further contended by respondent No.53 that the owners have entered into development agreement pursuant to which the property has been developed. It is further contended that in the written statement itself it has been categorically pleaded about the fraud and collusion being played between the transposed plaintiffs and original plaintiffs and thus, prayed to dismiss the amendment petition.
4. The learned trial Court Judge after considering the rival contentions has dismissed the petition. Aggrieved by the same, the plaintiff Nos.20 to 23 have filed the present Civil Revision Petition to set aside the impugned order.
5. Heard both sides and perused the record.
6. The revision petitioners are seeking amendment of the plaint to the extent of allotting 1/3rd share each to plaintiff Nos.20 to 23, defendant Nos.49 to 54 and remaining residuary share of 1/3rd share to plaintiff Nos.1 to 19 and defendant Nos.1 3 MGP,J Crp_6294_2018 to 32. Apart from the above, the revision petitioners have also sought for declare six registered sale deeds as null and void.
7. Coming to the aspect of share of the parties in the suit schedule property, it is to be seen that plaintiff Nos.1 to 19 have initially filed the suit for partition and separate possession and for allotment of 1/8th share each to the plaintiff Nos.1 to 19, defendant Nos.31 and 32, defendant Nos.1, 4 to 15, defendant Nos.4 to 15, defendant No.2, defendant No.3 and to allot ½ share to defendant Nos.16 to 30. After transposition of revisions petitioners as plaintiff Nos.20 to 23, they are seeking amendment with regard to quantum of share to which they are entitled. But it is to be seen that it is the plaintiff Nos.1 to 19, who have approached the Court by filing O.S.No.454 of 2008 and whereas the relief of amendment with regard to shares of the parties is in conflict with the interest of plaintiff Nos.1 to 19, which cannot be permitted.
8. Now, coming to the aspect of amendment with regard to the declaration of six registered sale deeds as null and void, it is contended by the revision petitioners that defendant Nos.1 to 32, who do not have right to sell the property over and above their share of suit schedule property, have alienated the property under six registered sale deeds to defendant Nos.33 to 4 MGP,J Crp_6294_2018 48 and thereby M/s. Vishnu Housing Private Limited cannot become the owner of the land to an extent of Ac.1.00 guntas through registered sale deed vide document No.16968 of 2005 dated 06.10.2005. It is settled law that if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment. In Ganesh Prasad v. Rajeshwar Prasad 1, the Apex Court held that where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed.
9. It is the contention of the learned counsel for the plaintiff Nos.20 to 23 that the trial Court erred in dismissing the amendment petition, which is filed consequent to the orders dated 18.10.2016 passed in I.A.No.430 of 2015, wherein the petitioners were transposed as plaintiff Nos.20 to 23. It is settled law that in a partition suit, all the parties, who are interested in the partition are treated as plaintiffs. For instance, even as per the affidavit of the petitioners in the amendment petition and the original plaint, plaintiff Nos.1 to 19 and defendant Nos.1 to 32 are shown as shareholders in suit 1CIVIL APPEAL arising out of SLP (C) No. 28377 OF 2018) decided on 14 March, 2023 5 MGP,J Crp_6294_2018 schedule property. The learned counsel for the respondents relied upon a decision rendered by the High Court for the erstwhile State of Andhra Pradesh in Chilakani Venkata Rao v. Lakshman Rao and others 2, wherein it was observed as under:
"It is well known that in a suit for partition all parties, who have a share in the properties to be partitioned, would be in the position of plaintiffs and can take all the pleas, which a plaintiff can taken, and so their written statements also would be in the nature of plaints."
10. As seen from the grounds of revision, the revision petitioners prior to their transposition as plaintiffs in the main suit have filed their written statement as defendant Nos.55 to 58 and put forth their contentions. In such circumstances, there was no necessity to transpose the petitioners/defendants as plaintiffs in the main suit, more particularly, when the pleadings of the revision petitioners as defendant Nos.55 to 58 is part of the records in O.S.No.454 of 2008. Since the contentions of the revision petitioners are forming part of the record in O.S.No.454 of 2008 in the form of their written statement, there is no necessity for amendment.
11. The other contention of the learned counsel for the plaintiff Nos.20 to 23 is that initially the plaintiff Nos.1 to 19 have filed suit by showing the revision petitioners as defendant 2 MANU/AP/0202/2006 6 MGP,J Crp_6294_2018 Nos.55 to 57 by mentioning in the plaint that defendant Nos.55 to 57 are not entitled for any share in the schedule of property. It is to be seen that mother of defendant Nos.55 to 57 was impleaded as defendant No.58 vide order dated 17.12.2014 in I.A.No.1394 and thereafter she was transposed as plaintiff No.23 along with the plaintiff Nos.20 to 22. It is further contention of the revision petitioners that the plaintiff has purposefully shown a wrong address for defendant Nos.55 to 57 and got them ex-parte. However, it is to be seen that the revision petitioners have filed petition to set aside the ex parte order and thereafter they were transposed as plaintiff Nos.20 to
23. Irrespective of the fact as to whether a party is a defendant or a plaintiff is entitled for share in the property, if such party is legally entitled to such share in the suit schedule property as per law.
12. It is observed in the impugned order that the case is coming up for trial. Learned counsel for the respondent No.1 relied upon a decision delivered by the then composite High Court of Andhra Pradesh in Prakash Rao Dandgey v. Satyanrayana Dandgey 3, wherein it was observed that provision of amendment does not confer power on the Court to 3 MANU/AP/1742/2014 7 MGP,J Crp_6294_2018 allow an impleaded party to amend or alter the pleadings of another party already on record. Learned counsel for the respondent No.2 relied upon a decision delivered by High Court of Kerala in Aliyamma v. Kunjamma John 4, wherein it was observed that the expression 'amend his pleadings' refers to the pleadings of the original plaintiff or the defendant in the suit, that means none other than the author has the right to seek leave to amend the original pleadings. The revisions petitioners have every opportunity to put forth their contentions with regard to shares of the parties to the suit by adducing cogent and convincing evidence and the trial Court based on such evidence, may arrive to a conclusion with regard to shares of the parties to which they are legally entitled. Even in the impugned order the trial court rightly observed that the shares of the petitioners can be determined at the time of trial.
13. The revision petitioners contended that the amendment will not defeat the legal right accrued to the parties that too when the suit is a partition one. As stated supra, even without amendment, the parties can avail and agitate with regard to legal rights accrued to them, more particularly in a partition suit. It is to be noted that the contentions of the transposed 4 MANU/KE/0883/2021 8 MGP,J Crp_6294_2018 plaintiffs i.e., revisions petitioners are quite contrary to the contentions of plaintiff Nos.1 to 19. In view of the principle laid down in the above said decisions and since the contentions of the transposed plaintiffs are against the contentions of original plaintiffs, amendment cannot be permitted, more particularly, when the suit is coming up for trial. An original defendant, who is afterwards transposed as plaintiff has every right to fall back upon the conditions in the written statement and plaint together in pursuit of the suit claim. It is not the case of the revision petitioners that the original plaintiff Nos.1 to 19 have not opposed for the amendment. It is a case where, not only the original plaintiffs but also one of the defendants i.e., M/s. Theme Constructions Private Limited have strongly opposed for allowing the amendment petition, more particularly, when the amendment as sought by the revision petitioners/transposed plaintiffs is prejudicial not only to the original plaintiffs but also to M/s. Theme Constructions Private Limited, which is one of the defendants in the suit.
14. In view of the above discussion, this Court is of the considered view that there is no infirmity or error apparent on the face of record, more particularly, when the scope of revision under Article 227 of the Constitution of India to interfere with 9 MGP,J Crp_6294_2018 the findings of the trial Court is very limited to a supervisory role and can certainly not be the resort to correct every erroneous order. As seen from the grounds of revision, the revision petitioners failed to bring out any of the grounds showing that there is an error apparent on the face of the record to set aside the impugned order. Therefore, there are no merits in the Civil Revision Petition and thereby it is liable to be dismissed.
15. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________
JUSTICE M.G.PRIYADARSINI
Date: 17.11.2023
AS