Telangana High Court
Maniza Jumabhoy, vs Ahmed Nawaz Alladdin And 2 Others on 14 June, 2022
1
THE HON'BLE SRI JUSTICE UJJAL BHUYAN
CIVIL REVISION PETITION No.1036 OF 2022
ORDER:
Heard Mr.Vedula Venkata Ramana, learned counsel for the revision petitioner; Mr. Praveen Reddy, learned counsel for respondent No.1; and Mr. R.A.Achuthanand, learned counsel for respondent No.3.
2 This is an application under Article 227 of the Constitution of India whereby petitioner has questioned the legality and validity of the order dated 18.04.2022 passed by the II Additional Chief Judge, City Civil Court, Hyderabad in I.A.No.595 of 2022 in O.S.No.13 of 2007.
3 Petitioner is the plaintiff in O.S.No.13 of 2007, which is a suit for partition and separate possession. The following prayer has been made by the petitioner in the suit:
(a) A decree be passed in favour of the plaintiff and against the defendants 1 and 2 for partition of schedule A and B properties, by separating respective shares of plaintiff being 1/5th as well as defendants 1 and 2 being 2/5th each by partitioning the same by metes and bounds and deliver possession thereof to the respective shares of the parties.
(b) Permanent injunction be granted in favour of the plaintiff and against the defendant No.1 restraining the defendant No.1, his agents, nominees etc., from interfering in the peaceful possession and enjoyment of the plaintiff in respect of schedule C.
(c) Permanent injunction be granted in favour of the plaintiff and against the defendant No.1 restraining the defendant No.1 his agents, 2 nominees etc., from interfering in the peaceful possession and enjoyment of the plaintiff in respect of schedule D.
(d) Costs of the suit be awarded; and
(e) Any other relief or reliefs to which the plaintiff is entitled to may also be granted.
4 Insofar cause of action for filing the suit is concerned, it is stated that the same originally arose on 16.10.2006 when her mother Bilkiz Alladin passed away. On the 40th day ceremony when the petitioner made an attempt to discuss partition of the above two properties, she did not get any response from defendant No.1. Hence it was contended that the suit was within limitation. 5 Defendant No.1 had filed written statement contesting the suit. So also the other two defendants, whereafter the Court framed issues and additional issues.
6 An interlocutory application was filed by the petitioner in the suit under Order VI Rule 17 of the Code of Civil Procedure, 1908 (CPC) for amendment of the prayer portion. The same was registered as I.A.No.595 of 2022. The amendment sought for is as under:
"13 (CC). To pass a decree for partition in respect of Plaint D schedule property admeasuring 1700 sq. yards in premises No.8-2-584, Road No.9, Banjara Hills, Hyderabad, bounded by:-
North: Part of Schedule A property and approach road, South: Part of Schedule A property East: Part of Schedule A property West: Part of Schedule A property By allotting half share to the petitioner / plaintiff and the remaining half share to the 2nd defendant by dividing the property by metes and bounds taking into account the good and bad qualities of the property and by passing 3 a preliminary decree and final decree in accordance with Order 20 Rule 18 of CPC, in the interest of justice" and grant such other relief as it deems fit in the circumstances of the case.
6.1 The above interlocutory application was contested by the defendants by filing separate counters affidavits. 7 By the order dated 18.04.2022, I.A.No.595 of 2022 was dismissed.
8 Hence this revision petition.
9 Sri Vedula Venkata Ramana, learned senior counsel for the petitioner submits that learned Court below had erred in placing reliance on Article 137 of the Limitation Act, 1963 while rejecting the amendment petition as being barred by limitation. He submits that Article 137 is nothing but a residuary provision and the same could not have been invoked to reject the amendment petition. He has referred to the provisions of Order VI Rule 17 CPC and submits that by disallowing the prayer for amendment, learned Court below has caused serious prejudice to the petitioner and in the process has missed the opportunity to determine the real question involved in the controversy. It is settled law that a party can seek amendment at any stage of the proceedings and this aspect was lost sight of by the learned Court below. After all, petitioner is the plaintiff and it is her suit in which the amendment was sought. He, therefore, submits 4 that the impugned order may be set aside and the prayer for amendment may be allowed.
10 On the other hand, learned counsel for the respondents submit that it may not be necessary to advert to Article 137 of the Limitation Act, 1963 for the purpose of adjudicating I.A.No.595 of 2022 filed by the petitioner. Learned counsel for the respondents have referred to paragraph No.12 of the impugned order and submits that petitioner failed to demonstrate exercise of due diligence in spite of which the amendment sought for could not be pressed earlier. Already 15 years have gone by since inception of the suit. Nothing was stated by the petitioner in the interlocutory application as to why the amendment sought for could not be raised earlier. They, therefore, submit that learned Court below was justified in rejecting the interlocutory application. In support of their respective contentions, learned counsel for the respondents have placed reliance on a number of decisions.
11 Submissions made by learned counsel for the parties have been considered.
12 At the outset provisions of Order VI Rule 17 CPC may be adverted to. Order VI CPC deals with pleadings generally and Rule 17 5 deals with amendment of pleadings. Order VI Rule 17 CPC reads as under:
17. Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
12.1 From a perusal of the above, it is seen that the Court may at any stage of the proceedings allow either party to alter or amend the pleadings in such manner as may be necessary to determine the real question in controversy between the parties. The proviso, however, says that no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial.
13 In the interlocutory application petitioner stated that in view of the issues framed petitioner would seek the relief of partition of plaint D schedule property. Therefore, petitioner should be permitted to amend the prayer portion of the plaint by seeking partition of D schedule property.
614 Learned Court below upon hearing both the sides framed the following point for consideration.
"Whether the proposed amendment is liable to be permitted as prayed for by the petitioner / plaintiff?
15 This point was answered by the Court below in the following manner:
8. Upon perusal of the case record, the respondent No.3/ defendant No.3 herself added as defendant No.3 in the main suit as per order in IA.No.326 of 2007 dt: 21.08.2008 stating that she is the absolute owner of the plaint D schedule property. Later the respondent No.3 / defendant No.3 filed her written statement wherein in para No.3 she clearly denied that the plaint D schedule property is Matruka property and she stated that it is her absolute property by virtue of oral Hiba given by her mother-in-law and it was acted upon.
9. Later additional issues were framed, trial was commenced and the defendant No.3 evidence is also closed, while the matter is coming for arguments, the petitioner / plaintiff came with present application by seeking the relief of partition of plaint D schedule property.
10. The respondent No.3 / defendant No.3 specifically denied about the nature of plaint D schedule property in the year 2007 by filing I.A.No.6326 of 2007 under Order I Rule 10 of Civil Code of Procedure which was allowed on 29.08.2008.
11. Later the respondent No.3 / defendant No.3 filed her written statement on 17.08.2009 by denying the nature of the plaint schedule property and claimed the same it is her absolute property by virtue of oral Hiba.
12. Since the year 2009 the petitioner / plaintiff did not move her little finger to amend the plaint by seeking the relief of partition of plaint D schedule property and she failed to establish any just and sufficient cause what prevented her to file the present application at earliest point of time.
13. Article 137 of Limitation Act prescribes period of 3 years limitation for filing suit for partition from the date of denial of share. In the instance case the respondent No.3 /defendant No.3 denied the right and share of the defendant No.3 in the year 2007 itself by filing IA No.6326 of 2007 under Order I Rule 10 of Civil Code of Procedure and later by filing her written statement on 17.08.2009. As such the claim of the petitioner / plaintiff is clearly barred by limitation. No doubt even after the commencement of trial the Court has powers to permit the parties to amend the pleadings when the petitioner /plaintiff 7 establish the fact that in spite of due diligence she failed to amend the plaint. In the instant case, the petitioner did not place any material what prevented her to file the present application in abnormal delay of 13 years. The Courts are here to protect the rights of parties who are diligently prosecuting their case and the Court cannot extend its hands to protect the rights of the parties who are sleeping on their rights for years together.
14. In view of the above said discussion, the petition is liable to be dismissed. Accordingly the point is answered."
16 From the above, Court finds that trial had not only commenced but even evidence has also been closed. Matter is now at the stage of arguments.
17 As far back in the year 2007, defendant No.3 had claimed that she is the absolute owner of plaint D schedule property, which was reiterated when she filed her written statement on 17.08.2009. Since the year 2009, petitioner did not seek amendment though she knew about the stand of defendant No.3. Even if reference to Article 137 of the Limitation Act, 1963 is ignored, the fact remains that there is no justification or explanation given by the petitioner for such delayed filing of amendment petition. Though petitioner knew about the status of plaint D schedule property as claimed by defendant No.3 way back in the year 2009, for 13 long years no petition for amendment was filed.
18 In Pandit Malhari Mahale Vs. Monika Pandit Mahale1 Supreme Court held that without there being any finding by the 1 (2020) 11 SCC 549 8 Court as contemplated under Order VI Rule 17 CPC, amendment should not be allowed. Referring to its earlier decision in Vidyabai Vs. Padmalatha2 Supreme Court observed that the proviso appended to Order VI Rule 17 CPC restricts the power of the Court to allow amendment. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction under Order VI Rule 17 CPC is limited; limited by the proviso. Unless the jurisdictional fact as envisaged there is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. In that case no finding was recorded by the civil Court that it was satisfied that in spite of due diligence the party could not introduce the amendment before commencement of the trial. Therefore, the order of the trial Court was found to be unsustainable.
19 In the instant case, there is a clear finding by the Court below that there are laches by the petitioner who did not take any steps since the year 2009 for amending the plaint by seeking the relief of partition of plaint D schedule property. Petitioner had failed to demonstrate any just and sufficient cause which prevented her from filing the I.A. for amendment at the earliest point of time. That apart, petitioner only sought for amendment of the prayer portion by seeking additional partition of plaint D schedule property without 2 (2009) 2 SCC 409 9 amendment of pleadings; in other words, the prayer sought for would be without any supporting pleadings.
20 That being the position, Court finds no good reason to interfere with the order dated 18.04.2022 though reference to Article 137 of the Limitation Act, 1963, was not called for. 21 Consequently, Civil Revision Petition is dismissed. However, there shall be no order as to costs. As a sequel, miscellaneous petitions, if any, pending in this revision petition shall also stand dismissed.
_____________________ UJJAL BHUYAN, J.
Dt: 14.06.2022 Kvsn