Andhra Pradesh High Court - Amravati
Kappala Seshaiah vs Rajahmandry Srinu, on 18 November, 2022
BSS,J
C.R.P.No.2955 of 2017
1
HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
C.R.P.No.2955 of 2017
ORDER:
This Civil Revision Petition is filed by the petitioners/plaintiffs under Article 227 of the Constitution of India against the orders passed by learned XII Additional District Judge, Guntur, in I.A.No.342 of 2016 in O.S.No.296 of 2012 dated 13.12.2016, wherein and whereby the learned trial Judge dismissed the petition filed by the petitioners/plaintiffs under Order VI Rule 17 of Civil Procedure Code (in short „CPC‟) seeking amendment of plaint on the ground that the petition is filed after commencement of trial.
2. The case of the petitioners/plaintiffs before the trial Court in brief is that they filed suit for declaration and recovery of possession basing on registered agreement of sale - cum - General Power of Attorney dated 03.12.2020 against the respondent. They submit that they have clearly mentioned in the plaint that "the defendant having received the Court notice and without obtaining prior permission of the Hon‟ble Court and while the matter was pending litigation, illegally encroached upon the suit schedule property and contiguous property pertaining to the 1st plaintiff to an extent of 201 sq. yards., and raised temporary sheds." It is also the contention of the petitioners that they BSS,J C.R.P.No.2955 of 2017 2 have obtained valuation certificate for the site to an extent of 201 sq. yards and temporary sheds therein but not for 42 cents. They have specifically stated that first petitioner filed chief examination affidavit and he was also cross-examined on 10.02.2016 and during the cross- examination they noticed that a typographical mistake crept in the schedule, i.e., instead of mentioning the extent of site as 201 sq. yards out of 42 cents, they have mentioned entire 42 cents within the boundaries, which has to be amended. They pray to amend the plaint schedule seeking relief in respect of 201 sq. yards out of 42 cents site with the same boundaries.
3. The respondent/defendant filed counter before trial Court denying the averments made in the affidavit of the first petitioner. It is the contention of the respondent that petitioners came up with petition to amend plaint schedule after completion of cross-examination of P.W.1 only to get over admissions made by P.W.1 and to fill up the gaps, which is not permissible under law. They submit that the amendment sought by the petitioners is not at all correct and precise on material aspects and petitioners are also not diligent in prosecuting the case. He prays to dismiss the petition.
4. After hearing both sides, the learned trial Judge dismissed the petition by observing that the petitioners have filed petition after cross-
BSS,J C.R.P.No.2955 of 2017 3 examination of P.W.1, which is not permissible as per proviso to Order VI Rule 17 CPC. Aggrieved by the orders passed by learned trial Judge, petitioners have preferred the present revision petition stating that the order of the lower Court is contrary to law, weight of evidence and probabilities of the case. They submit that proposed amendment is only to correct the typographical mistake crept in the schedule, which is in conformity with the plaint averments, which ought to have been allowed by the trial Judge. It is also the contention of the revision petitioners that valuation certificate, which they filed along with the plaint, also for 201 sq. yards but not to an extent of 42 cents. They pray to allow the civil revision petition.
5. I have heard both sides.
6. The learned counsel Mr.M.Seshu, representing Mr.Lakshmi Narasimham, for the revision petitioners would submit that present amendment is only to rectify the typographical mistake crept in the schedule, which has to be corrected in conformity with the averments made in the plaint. He would further submit that petitioners have filed suit for declaration by filing market value certificate in respect of 201 sq. yards of site but not for 42 cents, which clearly shows that mentioning 42 cents site in the schedule of the plaint is only BSS,J C.R.P.No.2955 of 2017 4 a typographical mistake, which can be rectified by way of allowing amendment petition. He relied on following precedent law:
1. Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another1.
He prays to allow the revision petition.
7. The learned counsel Mr.K.Vijay Kumar, for respondent vehemently opposed the contention of learned counsel for the revision petitioners. He would submit that present amendment sought by the petitioners is not to rectify the typographical mistake but to get over the admission made by P.W.1 in cross-examination, which cannot be permitted. He would further submit that though petitioners now intended to claim site to an extent of 201 sq. yards but valuation certificate is obtained for 200 sq. yards only. It is also the contention of learned counsel for respondent that previously petitioners have filed suit for injunction simplicitor, which they withdrawn as they came to know that they will not succeed and thereafter they filed suit for declaration of title and recovery of possession showing more value of the property than mentioned in market value certificate to attract the jurisdiction of District Court, which itself shows evil intention and unfair attitude on the part of the petitioners. He argued that when 1 AIR 2022 SC 4256 BSS,J C.R.P.No.2955 of 2017 5 petitioners/plaintiffs failed to put forth the real extent before the Court, right accrued to the respondent, which cannot be taken away by allowing the amendment petition filed by the petitioners. He relied on following precedent law:
1. K.Raheja Constructions Ltd. & Another Vs. Alliance Ministers & Others 2 , wherein it is held that amendment cannot be allowed if it defeat the valuable right of limitation accrued to the respondent.
2. Radhika Devi - Appellant Vs. Bajrangi Singh and Others -
Respondents 3 , wherein it is held that amendment of plaint can ordinarily be allowed except where it seeks to take away the accrued rights of a party on account of bar of limitation in which case, amendment should be refused.
8. Now, the issue that emerges for consideration by this Court is:
"Whether the order under challenge is sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of Constitution of India?"
9. POINT: Before going to the merits of the case, it would be beneficial to quote Order VI Rule 17 CPC, which reads as under: 2
1995 AIR 1768 3 ( 1996) AIR (SC) 2358 BSS,J C.R.P.No.2955 of 2017 6 "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 inspite of due diligence, the party could not have raised the matter before the commencement of trial.
10. In Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Another's case (referred supra) - in Civil Appeal No.5909 of 2022 dated 01.09.2022, the Hon‟ble Supreme Court held at Para 70, which reads as under:
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) 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.
BSS,J C.R.P.No.2955 of 2017 7
(iii) The prayer for amendment is to be allowed.
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) 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 and
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hyper technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
BSS,J C.R.P.No.2955 of 2017 8
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) 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. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between BSS,J C.R.P.No.2955 of 2017 9 the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"
11. On perusal of ratio laid down by Hon‟ble Apex Court in the above referred decision, which makes it clear that amendments can be allowed which are necessary for determining the real questions in controversy provided it does not cause injustice or prejudice to other side. The amendment can be allowed if it would enable the Court pin pointedly to consider the truth and would aid in rendering a most satisfactory decision, prayer for amendment should be allowed. Even amendment can be allowed, where it is intended to rectify the absence of material particulars in the plaint.
12. It is not in dispute that suit filed by the petitioners against the respondent is for declaration and recovery of possession, wherein it is averred at para 3 of the plaint, which copy is made available for perusal of this Court that "the defendant having received the Court notice and without obtaining prior permission of the Hon‟ble Court and while the matter was pending litigation, illegally encroached upon the suit schedule property and contiguous property pertaining to the 1st plaintiff to an extent of 201 sq. yards., and raised temporary sheds." Even in the cause of action portion, petitioners have averred that respondent illegally encroached upon suit schedule property and contiguous BSS,J C.R.P.No.2955 of 2017 10 property pertaining to the first petitioner to an extent of 201 square yards and raised temporary sheds. The revision petitioners also filed copy of valuation certificate, which they produced before trial Court before registering the plaint, which shows that it was obtained from Registering Officer, Guntur for the land consisting of Sy.No.999/A4B for first item 200 square yards of site, whereas second item is ACC. It appears that it is shed. In total, value is shown as Rs.10,70,000/-. But petitioners have shown their own value of property as Rs.13,70,000/- on which they calculated Court Fee as per Section 24(a) and Paid the Court Fee. It is not the contention of the respondent that petitioners have paid Court Fee in respect of entire 42 cents of site. A copy of written statement also made available and on perusal of para 7 of the written statement filed by the respondent before the trial Court, which reads as under:
"It is thus clear, the suit for the entire extent of Ac.0.42 cents, is misnomer both on facts and under law, as the case of the Defendant is only for an extent of 200 sq. yards, under the above Agreement of sale. It is learnt that the remaining extent of the suit schedule property was already sold in bits under the respective agreements and Registered Sale Deeds as known to the Defendant as on today as detailed hereunder:"
BSS,J C.R.P.No.2955 of 2017 11
13. The defendant also mentioned details of sale agreements said to be executed by first plaintiff in favour of seven persons and averred that extent of 42 cents is not available and dispute is only for 200 square yards. Now, it would be beneficial to extract plaint schedule as it stands and also proposed schedule of the plaint, which reads as under:
"PLAINT SCHEDULE FILED ON BEHALF OF THE PLAINTIFFS Guntur District, Guntur Sub.District, Guntur Revenue Limits in D.No.999/A4 B nearest Door No.17-2-3/65 to an extent of Ac.0.42 cets within the following boundaries.
East : Gudi Manyam West : Guntha Tulasi Devi Land North : Kappala Thrinath land South : Kappala Ramanaiah land.
With in the above boundaries an extent of Ac.0.42 cents of land. AFTER AMENDMENT PLAINT SCHEDULE FILED ON BEHALF OF THE PLAINTIFFS Guntur District, Guntur Sub.District, Guntur Revenue Limits in D.No.999/A4 B nearest Door No.17-2-3/65 site to an extent of 201 Sq. Yards out of Ac.0.42 cents within the following boundaries.
East : Gudi Manyam West : Guntha Tulasi Devi Land North : Kappala Thrinath land South : Kappala Ramanaiah land.
With in the above boundaries site to an extent of 201 sq. yards out of Ac.0.42 cents of land."
BSS,J C.R.P.No.2955 of 2017 12
14. At the first instance, plaintiffs filed suit showing the plaint schedule site to an extent of Ac.0.42 cents with specific boundaries, whereas now they want to restrict their claim of declaration only to an extent of 201 sq. yards out of Ac.0.42 cents within same boundaries for which they obtained valuation certificate and paid Court Fee not for entire Ac.0.42 cents of site. It is also the contention of respondent that now petitioners are not having entire Ac.0.42 cents as they sold away different extents to seven persons which they also mentioned in their written statement. When petitioners intended to seek declaration of their right and recovery of possession by reducing the site from Ac.0.42 cents to 201 sq.yards, which is said to be included with shed, it is not known what prejudice would be caused to the respondent/defendant as contended by learned counsel for respondent/defendant. It is no doubt true that petitioners have sought amendment of plaint after completion of cross-examination of P.W.1, wherein respondent/defendant might have elicited with regard to discrepancy in respect of extent of site shown in the plaint schedule, but that itself is not a ground to reject prayer of the petitioners seeking for amendment when this Court found that present amendment sought by the petitioners is in conformity with plaint averments, which also in conformity with the averments made by the respondents in para 7 of their written statement. The learned trial Judge failed to consider in detail the nature of amendment under what BSS,J C.R.P.No.2955 of 2017 13 circumstances amendment is sought and erroneously dismissed the petition filed by the petitioners. The ratio laid down by Hon‟ble Apex Court in the decisions relied on by learned counsel for respondents is in respect of accrual of right of limitation, which cannot be taken away by way of allowing the amendment. But, in the present case, petitioners intended to seek for declaration in respect of lesser site than they mentioned originally in the plaint, which certainly will not cause prejudice to the case of the respondents. Therefore, simply because on the ground that the amendment as sought for is after commencement of the trial, that itself is not a ground to reject the contention of the petitioners in view of ratio laid down by Hon‟ble Apex Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Another case (referred supra). Therefore, the orders passed by learned trial Judge dismissing the petition filed by the petitioners under Order VI Rule 17 CPC are not tenable, sustainable in law and also on facts, which needs interference of this Court under Article 227 of the Constitution of India.
15. In the result, the Civil Revision Petition is allowed. The petition filed by the petitioners/plaintiffs in I.A.No.342 of 2016 in O.S.No.296 of 2012 is hereby allowed. The petitioners/plaintiffs are permitted to amend the plaint and thereafter the respondents are also at liberty to BSS,J C.R.P.No.2955 of 2017 14 file additional written statement, if any before trial Court. Thereafter, the learned trial Judge shall frame necessary additional issues and shall proceed with the trial and dispose of the case as expeditiously as possible. No order as to costs. Consequently, miscellaneous petitions pending if any shall stand closed. The interim stay if any granted, is hereby vacated.
______________________ BANDARU SYAMSUNDER, J Dt:18.11.2022.
Rns BSS,J C.R.P.No.2955 of 2017 15 HON'BLE SRI JUSTICE BANDARU SYAMSUNDER C.R.P.No.2955 of 2017 Date: 18.11.2022 Rns