Andhra Pradesh High Court - Amravati
Patnam Ramesh vs Smt. Mothukuru Lakshmi Kanthamma on 2 March, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.986 of 2019
ORDER:
This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful respondent/defendant, is directed against the orders dated 31.01.2019, of the learned Senior Civil Judge, Proddatur, YSR Kadapa District, passed in IA.No.1941 of 2018 in OS.No.46 of 2008 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 ('the Code', for brevity) requesting to permit her to amend the plaint schedule survey number as S.No.306/2 instead of S.No.396/2 and consequential correction in the survey number in the records.
2. Heard Mr. Sodum Anvesha, learned counsel for the revision petitioner/defendant and Mr. V. Nithesh, learned counsel for the respondent/plaintiff. The parties shall hereinafter be referred to as the plaintiff and defendant.
3. The case of the petitioner/plaintiff, as stated in the affidavit filed in support of the request for amendment, in brief, is that in a suit for specific performance of an agreement of sale, dated 04.02.2004, at the stage of arguments, it was noticed that there was a typographical mistake in the suit schedule survey number by mentioning as 'S.No.396/2', instead of 'S.No.306/2.' as tick mark ' ' which is a part of the letter 'Pa' in vernacular language touched '0' in the survey number '306' making it appear as '396'. The defendant did not raise any objection to the survey number in his reply notice or in the written statement. Further, the proposed amendment does not change the 2 BSB, J C.R.P.No.986 of 2019 suit schedule property or nature of the suit and no prejudice will be caused to the case of the defendant by allowing the proposed amendment, rather it is just to decide the suit claims.
(b) The defendant filed counter denying the averment that due to typographical mistake, the suit survey number was typed as 396/2 in the plaint schedule and in evidence and that no objection was raised or that no prejudice is there to the defendant. In the cross-examination of plaintiff, when specifically questioned, PW1 answered that the survey number of the plaint schedule property is 'S.No.396/2' but not '306/2'. Therefore, the present petition seeking amendment is against the pleadings and evidence. Hence, the present petition has no merit and is not maintainable.
4. On contest, the trial Court allowed the petition of the plaintiff. Therefore, the defendant is before this Court.
5. The defendant seriously argued that since the proposed amendment is sought at a belated stage of arguments, it is to be shown that in spite of due diligence on the part of the plaintiff, the amendment could not be sought at the earliest, but the record shows that the plaintiff failed to take such a pleading even immediately after specifically bringing it to her notice in the cross-examination of PW1. It is further contended that since the beginning from issuing notice till the time of leading evidence, the case of the plaintiff is that the property is in Sy.No.396/2. It is further contended that the proposed amendment is not just a change of one digit, but would also change the nature of the property as the identity of the property would be changed, and thereby, the whole cause of action as well as the nature of the suit would materially be changed. The defendant further 3 BSB, J C.R.P.No.986 of 2019 submitted that it is false to say that identity of the property has not been disputed, nor it is the specific case of the defendant that the property within the boundaries mentioned in the schedule does not belong to him. It is always disputed that the defendant never sold the suit schedule property as contended by the plaintiff. In addition, delay in filing petition would go to the root of the matter to bring the case out of limitation.
6. On the other hand, the plaintiff contended that the mistake is genuine and the same mistake continued from the beginning till the amendment is sought because it appears to be so, for a naked eye looking at the agreement, but, the agreement was made in pursuance of the document of title which contains the correct survey number 306/2 and the same has been mentioned by the plaintiff since the beginning in the agreement, notice, the plaint and the evidence and thus, there is no change in the identity of the property, moreover, particularly in view of mentioning of specific boundaries which would prevail over survey numbers as per the settled law, and therefore, the contention of the defendant would not carry any weight. In this regard, it is also submitted that the defendant disputed the agreement but not the identity of the property, and on the other hand it was pleaded in the written statement that the plaint schedule property was sold to his brother-in-law.
7. In support of his submissions, learned counsel for the revision petitioner/defendant relied on decision in J.Samuel v. Gattu Mahesh1, wherein it was held as follows:
1
(2012) 2 Supreme Court Cases 300 4 BSB, J C.R.P.No.986 of 2019 "18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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." (emphasis supplied)
19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
In Rajkumar Gurawara (Dead) through L.Rs v. S.K.Sarwagi and Company Private Limited and Another2, wherein it was held as follows:2
(2008) 14 Supreme Court Cases 364 5 BSB, J C.R.P.No.986 of 2019 "13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.
18. .......It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment;
(ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. ....."
8. On the other hand, learned counsel appearing for the plaintiff supported the order impugned in the revision petition and placed reliance on the decision in B.K.Narayana Pillai v. Parameswaran Pillai3, wherein it was held as follows:
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the 3 (2000)1 Supreme Court Cases 712 6 BSB, J C.R.P.No.986 of 2019 basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that 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 the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation."
In Puran Ram v. Bhaguram and Another4, it was held as follows:
"19. Before parting with this judgment, we may deal with the submission of the learned counsel for the respondent that the application for amendment could not be allowed inasmuch as the same was barred by limitation. We are unable to accept this contention of the learned counsel for the respondents. In this regard, we may observe that the court may, in its discretion, allow an application for amendment of the plaint even where the relief sought to be added by amendment is allegedly barred by limitation. This view was also expressed by this Court in Pankaja v. Yellappa [(2004) 6 SCC 415]. In that decision, it was held that there is no absolute rule that in such a case, the amendment should not be allowed and the discretion of the court in that regard depends on the facts and circumstances of the case and such discretion has to be exercised on a judicious evaluation thereof. It was further held in that decision that an amendment, which subserves the ultimate cause of justice and avoids further litigation, should be allowed.
20. It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the court and amendment of 4 (2008) 4 Supreme Court Cases 102 7 BSB, J C.R.P.No.986 of 2019 the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply [(1969) 1 SCC 869: AIR 1969 SC 1267]. In para 8 of the said decision this Court observed that: (SCC p.
873) "8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises : the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted."
A reading of this observation would amply clear the position that no question of limitation shall arise when mis-description of the name of the original plaintiff or mis-description of the suit property arose in a particular case. Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted hereinearlier, we do not find why the High Court should have interfered with the discretion used by the trial court in allowing the application for amendment of the plaint." In Andhra Bank v. ABN Amro Bank N.V. and others5, it was held as follows:
"........Since, we are of the view that delay is no ground for not allowing the prayer for amendment of the written statement and in view of the submissions made by Mr Kapadia, we do not think that delay in filing the application for amendment of the written statement can stand in the way of allowing the prayer for amendment of the written statement. So far as the second ground is concerned, we are also of the view that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at 5 (2007) AIR (SCW) 4466 8 BSB, J C.R.P.No.986 of 2019 the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit......"
In Surender Kumar Sharma v. Malkhan Singh6, it was held as follows:
"7. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise. (See B.K. Narayana Pillai v. Parameswaran Pillai [(2000) 1 SCC 712 : AIR 2000 SC 614] .) Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed."6
AIR 2009 SC (Supp) 2671 9 BSB, J C.R.P.No.986 of 2019 In Yarramadha Ashok v. Gade Ram Reddy and another7 it was held as follows:
".....When there is some documentary evidence, more particularly, in the nature of undisputed documents, it is always in the interests of justice to allow the same to be brought on record as such evidence may afford proper support to one of the versions of the two sides and may finally lead the trial Court to a just and correct decision in the case. Documentary evidence, particularly in the form of indisputable documents, the authenticity of which cannot be doubted, always affords a better proof of the facts in issue; and the adage "Men may lie but not matters' supports the above view....."
In Devaraj v. Murugesan8, it was as follows:
"10. Learned counsel for the petitioner would further rely upon another decision of a single judge (M. Srinivasan.J) of this Court in the case of Mahalingam vs. A.S.Narayanaswamy Iyer and others reported in (1996) 1 L.W.443, who has followed the legal maxim "Falsa demostratio non nocet" which means "a wrong description of an item in a legal document such as "a Will" will not necessarily void the gift if it can be determined from other facts" and held that when the property mentioned in the schedule to the Will is clear and identifiable, the wrong description of the survey number and the extent will not affect the outcome of the suit.
12. If there is any dispute relating to the identity of the subject matter of the suit, the respondent would have very well raised the same in his written statement, which he has not done so in the instant case, but he has in fact mentioned the correct survey number viz., S.F.No.109/1B in his written statement. As held by the Hon'ble Supreme Court reported in 7 2018 (1) ALT (Crl.) 298 (A.P) 8 MANU/TN/6777/2018 10 BSB, J C.R.P.No.986 of 2019 (2007) 13 SCC 421 referred to supra, when the missing details in the schedule were due to inadvertence and no prejudice will be caused, if the plaint is amended, incorporating the missing details through amendment application is permissible. In the instant case, only due to inadvertence and typographical error, the petitioner did not furnish the correct survey number in the suit schedule which is also pleaded by him in his affidavit filed in support of the amendment applications.
14. In the instant case, the identity of the property is clear with the available particulars given in the suit schedule even though the survey number was wrongly mentioned. Therefore, applying the latin maxim "Falsa demostratio non nocet" as applied in the decision rendered in the Judgment reported in (1996) 1 L.W.443, this Court is of the view that it can also be applied to the facts of the instant case. The objection raised by the respondent for allowing the amendment applications are hypertechnical and has raised the said objection despite the fact that he has not disputed the identity of the property and has also mentioned the correct survey number in his written statement."
9. In view of the facts and the rival contentions, for better appreciation, Order VI Rule 17 is excerpted hereunder:
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."
10. Order VI Rule 17 of the Code permits amendment of the pleadings generally, however, a rider is incorporated in the proviso 11 BSB, J C.R.P.No.986 of 2019 appended thereto. Since the proposed amendment is sought at the fag end of the suit, i.e., at the time of arguments, the plaintiff has to show that in spite of due diligence, the amendment could not have been sought for at the earliest.
11. The decisions relied upon by both the parties would provide guidelines for consideration of an application under Order VI Rule 17 of the Code. Generally, if there is change in the survey number, identity of the property may vary. But, in the present case, since the property is described within the specific boundaries and it is not the specific case of the defendant that there is no such property within the said survey number or that the property is situated in another survey number, merely because the sale of the plaint schedule property under the agreement is denied, it cannot be equated with a denial of sale of property situated in Sy.No.396/2. It is so because, as rightly contended by the plaintiff, the defendant has taken a plea in the written statement about alienation of the property which is the subject matter in the suit. Therefore, it is not a tenable contention that the amendment in the survey number would change the cause of action and the nature of the whole suit. In addition to that, the mistake is also, prima facie, out of genuine reason as explained by the plaintiff. There is every possibility for a mistake in treating '9' for '0'. Of course, the plaintiff in her cross-examination also specifically admitted that the survey number of the property is 396/2 and not 306/2. What is required is the identity of minds of the parties as to which property is agreed to be sold. When there is enough evidence to indicate the identity of the mind and the possibility of mistaken impression is fairly 12 BSB, J C.R.P.No.986 of 2019 established, the relief sought for by the plaintiff for amendment cannot be declined on the ground of admission in the cross-examination.
12. It is no doubt true that if the effect of amendment is taken away the benefit of admission, such amendment may not be allowed. But in this case, the mistake in respect of the pleadings as well as admission in the evidence is based on some reason. As such, in the present case, the prayer cannot be declined pursuant to the said admission. Since the mistake is said to have been identified during the course of arguments, in view of specific cross-examination regarding the digits in the survey number, it is contended that the petition ought to have been filed immediately after the cross-examination.
13. As there is no long gap between the date of cross-examination and the date of filing the petition and moreover, the party is under the same impression that the survey number is only 396/2, it cannot be said that the plaintiff came to know about the mistake and yet, she has not taken steps immediately and thereby, due diligence has not been exhibited.
14. For all the above reasons, there is no justification to interfere with the findings of the Court below.
15. In the result, the Civil Revision Petition is dismissed.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this revision shall stand closed.
________________ B.S BHANUMATHI, J 02nd March, 2022 RAR