Andhra Pradesh High Court - Amravati
Narapureddy Dasumurthy vs Suravarapu Srinivasarao on 29 January, 2025
APHC010305652024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
WEDNESDAY, THE TWENTY NINETH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION NO: 1573/2024
Between:
Narapureddy Dasumurthy and Others ...PETITIONER(S)
AND
Suravarapu Srinivasarao and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. A RAVI SHANKAR
Counsel for the Respondent(S):
1. VENKATESWARA RAO GUDAPATI
The Court made the following:
ORDER
The plaintiffs in the suit filed the above revision against the order dated 25.06.2024 in I.A.No.190 of 2024 in O.S.No.40 of 2017 on the file of Family Court-cum-III Additional District & Sessions Court, Srikakulam.
2. The plaintiffs filed the suit O.S.No.40 of 2017 for declaration of title and consequential permanent injunction etc. The plaintiffs pleaded title to the schedule property, by virtue of a registered sale deed dated Page 2 of 9 05.07.2013, purchased from Dr.Narendra Kumar, who, in turn, purchased the schedule property from Appalakonda Rajarao in the year 2006. It was further pleaded that when the plaintiffs are preparing for construction of the boundary wall on 03.07.2017, the defendants tried to interfere and the said attempts was successfully resisted by the plaintiffs. Hence, the suit was filed.
3. a) The 1st defendant filed written statement. It was contended, interalia, that 1st defendant, Vivekananda and Thamminaidu are the sons of late sri S.Kaminaidu. The said Kaminaidu and Etcherla Appanna jointly purchased Ac.2.43 cents in S.No.168 of Patha Srikakulam, T.S.No.96 and an extent of Ac.1.75 cents in S.No.182-75, T.S.No.111 under a registered sale deed dated 27.07.1966 from Gudivada Venkata Varadaraju and others. They enjoyed the property jointly till 1984. S.Kaminaidu filed suit O.S.No.44 of 1984 on the file of Additional Subordinate Judge‟s Court, Srikakulam for partition. A preliminary decree was passed on 18.08.1987. An advocate commissioner was appointed and a final decree was passed in I.A.No.195 of 1988 on 01.03.1990. The property was divided into A, B, C, D & E plots. „A‟ plot relates to Ac.2.43 cents in S.No.168. It was further divided into X, X1 and Y. X1 and Y denoted lots were allotted to Kaminaidu and the X denoted lot was allotted to Etcherla Appanna‟s branch. E.P.No.39 of 1991 was filed by the Kaminaidu under Order XXI Rule 35 of CPC for delivery of „X1‟ and „Y‟ denoted lots and the delivery was affected on 25.09.1991. Thus, Kaminaidu and thereafter defendants have been in possession and enjoyment of property.
b) Appikonda Rajarao and others tried to trespass into the property of defendants (property allotted in O.S.No.44 of 1984). The 1st defendant Page 3 of 9 and other co-owners filed suit O.S.No.106 of 2006 on the file of Additional Senior Civil Judge, Srikakulam seeking permanent injunction. The defendants in the said suit remained exparte and an exparte decree was passed on 13.10.2009. The 1st defendant and other co-owners filed suit O.S.No.492 of 2006 against Srikakulam Municipality for declaration that the incorporation made by the authority in Town Survey register at relevant page with respect to T.S.No.96, corresponding old S.No.168 of Patha Srikakulam etc., and also for mandatory injunction. The said suit was decreed on 09.02.2015. The plaintiffs have colluded with their vendors and brought into existence the sale deeds dated 25.04.2006 and 05.07.2013 and tried to interfere with the defendants‟ possession of the property and eventually prayed to dismiss the suit.
c) Along with written statement, copies of the sale deeds and other relevant documents referred in written statement were filed.
4. The defendants in the suit along with others filed suit O.S.No.14 of 2021 against the plaintiffs in O.S.No.40 of 2017, their vendors and another seeking declaration of title and consequential injunction. Both the suits are not clubbed. In O.S.No.40 of 2017 the trial was commenced. P.Ws.1 to 5 were examined and the suit is coming up for further evidence. In O.S.No.14 of 2021, P.W.1 was examined and he marked certain documents.
5. The plaintiff filed I.A.No.190 of 2024 under Order VI Rule 17 of CPC to amend the plaint as follows:
1. In para No.9 of the plaint add "that the decree and judgment in O.S.No.44/1984 dt.18.08.1987 of Subordinate Court, Srikakulam are not binding on the plaintiffs pertaining to the suit schedule property as Page 4 of 9 the above judgment obtained by misrepresentation and fraud on the court by the defendants father Suravarapu Kaminaidu".
2. In the cause of action para add "the plaintiff came to know that on 30.11.2023 when Exs.A.1, A.2, A.4 and A.5 marked and on 27.02.2024 when the defendant in O.S.No.14/2021 gave evidence before the Hon‟ble Court".
3. In Para No.V add "for declaration that the suit O.S.44/84 of the Addl.
Subordinate Court, Srikakulam Judgment and decree dt.18.08.1987 are not binding on the plaintiff pertaining to the suit schedule property and stamp duty for the purpose of jurisdciton for the above prayer is valued at Rs.81,20,000/- and 3/4th market value Rs.60,90,000/- as per registrar office market value of Srikakulam and the value mentioned in O.S.44/84 of the suit in O.S.44/84 is a partition suit and fixed stamp duty is Rs.200/- here the plaintiff is paid Rs.200/- as per Section 34 (2) of A.P.C.F. & S.V. Act".
4. In the prayer portion VI (a) add "The decree and judgment dt.18.08.1987 in O.S.44/84 on the file of Addl. Senior Civil Judge Court, Srikakulam pertaining to the suit schedule is not binding on the plaintiffs as the above Judgment and decree in O.S.44/84 are obtaining by the defendants father by misrepresentation and by playing fraud on the Court".
6. In the affidavit filed in support of the petition, it was contended that after the document was marked by the plaintiffs in O.S.No.14 of 2021 (defendants in O.S.No.40 of 2017), the petitioners got knowledge and hence, sought for proposed amendment.
7. The said application was opposed by the defendants by filing counter. It was pleaded that along with written statement, the defendants filed all the documents. The plaintiffs examined P.Ws.1 to 5 and the defendants cross examined and elicited some important aspects. To get over those aspects, the present amendment application is filed. It was Page 5 of 9 further pleaded that the amendment introduces different case and it also causes prejudice to the defendants, which cannot be compensated in terms of money. The Court fee of Rs.200/- sought to be paid by way of amendment is unknown to law and eventually prayed to dismiss the petition.
8. The trial Court by order dated 25.06.2024 dismissed the said application. Aggrieved by the same, the above civil revision petition is filed.
9. Heard Sri A.Ravi Shankar, learned counsel for petitioners and Sri Gudapati Venkateswara Rao, learned counsel for respondents.
10. Learned counsel for the petitioners would submit that the proposed amendment will not introduce new cause of action. He would also submit that though the amendment petition was filed after commencement of trial, it was filed to avoid multiplicity of proceedings. He would submit that the petitioners came to know about the fraud played by father of 1st defendant and grandfather of defendants 2 and 3, when the documents were marked in O.S.No.14 of 2021.
11. Per contra, learned counsel for respondents would submit that along with the written statement all the documents were filed on 16.08.2017. He would submit that on behalf of plaintiffs, P.Ws.1 to 5 were examined and during their cross examination, important aspects were elicited and to cover up those aspects, the present amendment petition was filed. He would submit that since the trial was commenced, the amendment sought is impermissible.
Page 6 of 912. Now, the point for consideration is:
Whether the order dated 25.06.2024 in I.A.No.190 of 2024 in O.S.No.40 of 2017 on the file of Family Court-cum-III Additional District & Sessions Court, Srikakulam suffers from any illegality warranting interference by this Court?
13. Shorn of the other details, there is no dispute regarding the plaintiffs filing suit O.S.No.40 of 2017 against the defendants for declaration of title and consequential injunction in respect of 484.88 square meters of vacant land in T.S.No.96, R.S.No.168 of Patha Srikakulam. The 1st defendant filed written statement on 16.08.2017 and pleaded about purchase of the property, filing of suit for partition, final decree and thereafter the defendants filed suit against father of plaintiffs etc. All the documents were filed along with written statement. The defendants along with others filed suit O.S.No.14 of 2021 against the plaintiffs herein, vendor of plaintiffs and another person for declaration and injunction.
14. Thus, as seen from the pleadings and material available on record, both the parties filed respective suits for declaration and for consequential injunction. The trial in O.S.No.40 of 2017 was commenced and P.Ws.1 to 5 were examined. When the suit is coming up for further evidence, the present application was filed by the plaintiffs seeking amendment.
15. Admittedly, the amendment sought by the plaintiff is a post-trial amendment. The plaintiffs must prove due diligence, because of the proviso to Order VI Rule 17 of CPC by Act 22 of 2002. The affidavit filed in support of petition does not contain any averment regarding diligence Page 7 of 9 aspect, except pleading that the plaintiffs came to know about the alleged fraud said to have been played by 1st defendant‟s father in obtaining decree in O.S.No.44 of 1984.
16. It is pertinent to mention here that 1st defendant pleaded about his father filing suit O.S.No.44 of 1984 and also filed all the proceedings along with written statement. The written statement was filed on 16-8- 2017. Thus, the plaintiffs, now, cannot contend that they came to know about the said documents, when they were marked in other suit O.S.No.14 of 2021.
17. It is settled principle of law that amendment can be allowed, if it satisfy two conditions: (a) of not working injustice to another side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. The Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. However, amendment cannot be claimed as a matter of right. Of course, in all circumstances, the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs.
18. The Hon‟ble Apex Court in Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd 1 , after considering numerous 1 (2022) 16 SCC 1 : 2022 SCC OnLine SC 1128 Page 8 of 9 precedents in regard to the amendment of pleadings, culled out certain principles:--
(i) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.
(ii) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side.
(iii) Amendments, while generally should be allowed, the same should be disallowed if -
(a) By the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side.
(b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations)
(c) The amendment completely changes the nature of the suit;
(d) The prayer for amendment is malafide,
(e) By the amendment, the other side should not lose a valid defence.
(iv) Some general principles to be kept in mind are - (I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs.
(II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach.
(III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint.
19. In the case at hand, as narrated supra, despite filing the documents along with written statement, the plaintiffs did not seek any Page 9 of 9 amendment before commencement of trial. P.Ws.1 to 5 were examined on behalf of plaintiffs. By the proposed amendment, the plaintiffs are now seeking prayer that the decree and judgment in O.S.No.44 of 1984 do not bind them. The proposed amendment, as rightly pointed out by the trial Court, definitely introduces new dimensions. Apart from that the amendment application was filed after commencement of trial and the plaintiffs failed to satisfy the due diligence test. On this ground also I.A. filed by the plaintiffs is liable to be dismissed.
20. Given the discussion supra, in the order passed by the trial Court, in the opinion of this Court, there is no illegality or irregularity brooks interference of this Court while exercising the jurisdiction under Article 227 of the Constitution of India. This Court does not find any merit in the above revision and the same is liable to be dismissed.
21. Accordingly, the Civil Revision Petition is Dismissed. No costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
__________________________ JUSTICE SUBBA REDDY SATTI PVD