Andhra Pradesh High Court - Amravati
B.Hari vs State Of Ap on 3 December, 2019
THE HON'BLE SRI JUSTICE M. SEETHARAMA MURTI
Civil Revision Petition No. 2534 of 2019
ORDER:
The unsuccessful petitioner/plaintiff filed this revision, under Article 227 of the Constitution of India, assailing the order, dated 24.07.2019, of the learned XIII Additional District Judge, Narasaraopet, passed in I.A.No.648 of 2019 in O.S.No.66 of 2014 filed by the petitioner/plaintiff under Order VI Rule 17 of the Code of Civil Procedure, 1908, requesting to permit to amend the plaint schedule by mentioning S.no.1351/3/A3 in the place of S.No.1351/3A-2.
2. I have heard the submissions of Sri Ghanta Sridhar, learned counsel for the revision petitioner/plaintiff, (hereinafter, 'plaintiff'); and, of Sri Sricharan Telaprolu, learned counsel for the respondents/defendants, ('hereinafter, 'defendants'). I have perused the material record.
3. The case of the plaintiff in support of the request for amendment of the schedule of the plaint, in brief, is this:
The plaintiff filed the suit against the defendants to grant a decree in favour of the plaintiff for specific performance of an agreement of sale, dated 09.10.2003, and to direct the defendants to execute a registered sale deed in favour of plaintiff in respect of schedule property and requesting the Court to execute the sale deed in the event of the defendant's failure to execute the sale deed. The suit stands posted to 04.06.2019 for arguments. A mistake crept in while mentioning the survey number in the plaint schedule. The survey number was mentioned as 1351/3A-2 in the plaint schedule. The same survey number was mentioned in exhibit A1, agreement of sale, dated 09.10.2013, which was executed by the 1st defendant in favour of the plaintiff.
The 1st defendant executed exhibit A5, registered sale deed, dated 24.07.2014, in favour of the 2nd defendant, which is a benami transaction. The survey MSRM, J 2 C.R.P.No.2534 of 2019 number was mentioned as 1351/3/A3 in the said sale deed . The 1st defendant intentionally mentioned the wrong survey number at the time of drafting of exhibit A1, agreement of sale. The said mistake was noticed by the plaintiff recently. There is no wilful default or negligence on the part of the plaintiff in not noticing the said mistake in the survey number. Hence, it has become necessary to correct the survey number in the plaint schedule by way of amendment. The plaintiff has good grounds to succeed in the suit. If the survey number is not amended in the plaint schedule, the same survey number will have to be mentioned in the registered document. No prejudice would be caused to the defendants if the survey number is amended. If permission to rectify the mistake and amend the schedule of the plaint is not granted, in the circumstances stated, the plaintiff suffers irreparable loss.
4. The 2nd defendant adopted the counter filed by the 1st defendant. The case of the 1st defendant as stated in his counter, in brief, is this:
The petition is not maintainable either in law or on facts. The suit is posted for arguments. At that stage, the plaintiff filed the subject application for amendment of the plaint schedule. The law does not contemplate filing of the petition for amendment of the plaint at a stage when the suit is coming for hearing arguments. The 1st defendant has aired caustic signals about the incorporation of wrong survey number in the reply notice, vide exhibit B14 and also in the written statement filed on behalf of the defendants. The plaintiff during the course of her cross-examination fairly conceded that after going through the contents of the written statement of the 1st defendant, she came to know that the survey number mentioned in exhibit A1 in respect of the schedule property is wrong. She has further accepted that even before entering into exhibit A1, agreement of sale, measurements of the land were taken. Thus, it is clear that the plaintiff has knowledge about the survey number and its extent. The petitioner/plaintiff got marked registered sale deed and the registered consent deed in the name of the 2nd defendant as MSRM, J 3 C.R.P.No.2534 of 2019 exhibits A6 & A7 during the course of examination in chief of PW1. The survey number of the land was mentioned in the said documents as 1351/3A/3.
Hence, the contentions of the plaintiff that she noticed the mistake recently and that her counsel informed her the same are untenable. The plaintiff failed to prosecute the suit with due care and diligence and the present petition is filed with a view to drag on the suit. The petition is barred by limitation.
Hence, the same is liable to be dismissed.'
5. At the time of hearing before the trial Court, no oral and documentary evidence was adduced. On merits and by the orders impugned in this revision, the trial Court dismissed the petition of the plaintiff. Therefore, the plaintiff is before this Court. At the time of hearing before this Court, learned counsel for both the parties reiterated the respective contentions of the parties, which are stated supra, in detail.
6. Learned counsel for the plaintiff would further submit as under: 'The order of the Court below is illegal, contrary to law and facts, weight of evidence and probabilities of the case. The learned Judge of the Court below failed to consider that the proposed amendment in the schedule of the plaint permitting to mention the correct survey number will not cause any prejudice to the defendants. The Court below ought to have allowed the application of the plaintiff as the amendment is just and necessary for proper adjudication of the dispute. The Court below erred in dismissing the application holding that it is filed at a belated stage without considering in proper perspective, the circumstances that led to the filing of the application. The Court below ought to have allowed the application. The order of the trial Court is unsustainable being not justified.'
7. Per contra, learned counsel for the defendants while supporting the orders of the Court below would submit as follows: 'The plaintiff has no cause of action. She failed to prosecute the suit with due care and diligence. The MSRM, J 4 C.R.P.No.2534 of 2019 present petition is filed with a view to delay the disposal of the suit. The petition is barred under the proviso to Order VI Rule 17 of the Code. Hence, the petition was rightly dismissed by the Court below.'
8. I have given detailed and thoughtful consideration to the facts and the submissions. I have perused the plaint as well as the written statement.
9. It is to be noted that the trial in the suit commenced long ago. However, the defendants' evidence was closed on 02.05.2019. Since then, the matter is coming up for arguments.
10. In the considered view of this Court, the question involved in this revision is no longer res integra in view of the settled legal position. 10.1 Firstly, coming to the contention that the amendment of the plaint is being sought belatedly and is impermissible in view of the bar contained in the proviso to Order VI Rule 17 of the Code, it is profitable to refer to the said proviso, which reads as follows:
"Proviso to Order VI Rule 17 of the Code:
"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."
10.2 Now, it is apt to refer to the relevant precedents. In Vidyabai Vs. Padmalatha1 the Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the court's jurisdiction to allow an application for amendment is taken away thereunder unless the conditions precedent therefor are satisfied and that before allowing amendment, the Court must come to a conclusion that in spite of due diligence, the parties could not have raised the matter before the commencement of the trial and that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real 1 (2009) 2 Supreme Court Cases 409 MSRM, J 5 C.R.P.No.2534 of 2019 controversy between the parties and that only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the court would have no jurisdiction at all to allow the amendment.
10.3 In Revajeetu Builders Vs. Narayana Swamy2, on an analysis of English and Indian case law, the Supreme Court carved out the following principles which should weigh with the Court while dealing with an application for amendment:
(1) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(2) Whether the application for amendment is bona fide or mala fide;
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
The Supreme Court, however, clarified that the above principles were illustrative and not exhaustive.
10.4 In Chander Kanta Bansal Vs. Rajinder Singh3, the Supreme Court, taking note of the fact that `due diligence' has not been defined in the Code, referred to the dictionary meaning of `diligence' which is to the effect that it means careful and persistent application or effort or a continual effort to accomplish something; care; caution; the attention and care required from a person in a given situation, and observed that `due diligence' means the 2 (2009) 10 SCC 84 3 (2008) 5 SCC 117 MSRM, J 6 C.R.P.No.2534 of 2019 diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Reference was also made to `Words and Phrases' by Drain-Dyspnea (Permanent Edition 13-A) wherein `due diligence' was defined in law to mean doing everything reasonable and not everything possible. The Supreme Court, therefore, concluded that `due diligence' would mean reasonable diligence and would mean such diligence as a prudent man would exercise in the conduct of his own affairs.
10.5 Further, in the decision in Abdul Rehman and another Vs. Mohd. Ruldu and others4, the Supreme Court, having taken note of the above provision of law had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, in spite of due diligence, the party could not have raised the matter before the commencement of the trial. In the above decision, the Supreme Court reiterated the following proposition:
"All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties."
In the above decision, the Supreme Court further referred to the ratio in the decision in Pankaja and another Vs. Yellapa5, which runs as follows: 4
2013 (1) ALD 1 (SC) 5 AIR 2004 SC 4102 MSRM, J 7 C.R.P.No.2534 of 2019 "If the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed."
In this cited case, the facts are as under: "As per the case of the plaintiffs, the defendant, in violation of the Court order, had further encroached into the suit property. Therefore, the plaintiffs sought for the amendment of the plaint for seeking the reliefs of declaration of ownership and possession of the said encroached area also. The said application was allowed by the trial Court.
However, the Principal Civil Judge rejected the application for amendment on the ground that the application for amendment was filed at a belated stage.
The High Court dismissed the revision on the said ground and also on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court permitted the amendment by allowing the appeals.
10.6 In Sampath Kumar Vs. Ayyakannu and another6 the facts and ratio are as under: "A suit was brought in the year 1988 for perpetual injunction in respect of an agricultural land. Before the commencement of the trial in the year 1999, the plaintiff moved the application for amendment of the plaint alleging that during the pendency of the suit, the defendant had forcibly dispossessed the plaintiff in the year 1989. On such averments the plaintiff sought for the relief of declaration of title to the suit property and consequential relief of recovery of possession. The defendant opposed the application of the plaintiff stating that he had perfected title to the property by adverse possession and that the suit is barred by law of limitation and that a valuable right that had accrued to the defendant is being sought to be taken away by proposed the amendment. The trial Court rejected the application for amendment observing that the appropriate course for the plaintiff was to bring a new suit. The High Court maintained the said order. The Supreme Court 6 (2002) 7 SCC 559 MSRM, J 8 C.R.P.No.2534 of 2019 while allowing the appeal of the plaintiff had referred to its earlier decisions and had finally held as follows:
In Rukhmabai v. Lala Laxminaraya and Ors.:
[1960]2SCR253, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.
Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre- trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait- jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Anr. v. Mamtha Shenoy: AIR 2001 SC 2896).
In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the MSRM, J 9 C.R.P.No.2534 of 2019 pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
10.7 In North Eastern Railway Admn. Vs. Bhagwan Das7, the Supreme Court held as follows:
"Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
10.8 The Supreme Court in Baldev Singh Vs. Manohar Singh [(2006)6 SCC 498] held as follows:
"Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited 7 (2008) 8 SCC 511 MSRM, J 10 C.R.P.No.2534 of 2019 sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings."
10.9 The Supreme Court, having referred to a three-judge Bench decision in Sajjan Kumar Vs. Ram Kishan8, held as follows:
"Having heard the learned Counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit."
11. Reverting to the facts of the instant case, it is to be noted that the plaintiff contends that there was a mistake in the survey number in the plaint schedule. The survey number was mentioned as 1351/3A-2 in the plaint schedule. The same survey number was mentioned in exhibit A1, agreement of sale, dated 09.10.2013, which was executed by the 1st defendant in favour of the plaintiff. The 1st defendant also executed exhibit A5, registered sale deed, dated 24.07.2014, in favour of the 2nd defendant, wherein the survey number was mentioned as 1351/3/A3. The plaintiff contends that the 1st defendant intentionally supplied the wrong survey number at the time of drafting the exhibit A1, agreement of sale, and that there is no wilful negligence on her part in noticing the said mistake earlier. Hence, the plaintiff filed the present 8 (2005) 13 SCC 89 MSRM, J 11 C.R.P.No.2534 of 2019 application seeking amendment of the plaint schedule and to permit her to show the correct survey number in the schedule of the plaint. The defendants opposed the application mainly on the ground that that the plaintiff is aware of the survey numbers and contend that the contention of the plaintiff is bereft of truth and the petition is intended only to drag on the suit. The proposed amendment, in the considered view of this Court, is only clarifying the existing plaint schedule. Amendment of boundaries of the plaint schedule is not sought. Since the amendment sought for is clarificatory in nature and it is essential for effective adjudication of the lis, this Court is of the considered view that the amendment can be permitted.
12. This Court is also of the considered view that it would be a sound exercise of discretion to permit the amendment of the survey number in the plaint schedule and that on the ground of mere delay amendment cannot be refused. Since the dominant purpose of the Rule is to minimize the litigation and to enable the parties to have all the issues relating to one dispute resolved in one suit, the amendment sought for by the plaintiff can be allowed, in the considered view of this Court. As rightly pointed out, the question whether the plaintiff would be entitled to succeed or not cannot be prejudged while considering the instant application, filed for amendment of the schedule of the plaint. The amendment, even if permitted at this belated stage, helps in setting at rest the dispute between the parties once and for all. Further, if granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed and the Court has also to consider whether the proposed amendment is intended to determine the real dispute between the parties. No right accrued to the defendants would get defeated, if the proposed amendment is allowed as the defendants are from the beginning denying the plaintiff's entitlement to the reliefs claimed in the suit. On the aforesaid analysis of the contentions and case facts, this Court finds that there is acceptable merit in the contentions of the plaintiff and that MSRM, J 12 C.R.P.No.2534 of 2019 there are no impediments for allowing the amendment. For the foregoing reasons, this Court finds that the order of the Court below can be set aside and the application for amendment can be allowed, however, after imposing costs on the plaintiff in lieu of compensation to offset the hardship that may be caused to the defendants due to the delay in the disposal of the suit.
13. In the result, the Civil Revision Petition is allowed and the order impugned of the Court below is set aside. As a sequel, I.A.No.648 of 2019 in O.S.No.66 of 2014 on the file of the Court of the learned XIII Additional District Judge, Narasaraopet, is allowed, subject to the condition that the petitioner/ plaintiff shall deposit, to the credit of the suit, costs of Rs.3,000/- (Rupees Three thousand only) within two weeks from the date of receipt of a copy of this order. Thereafter, the Court below shall permit the petitioner/plaintiff to carry out the amendment to the plaint schedule and file a neat copy of the plaint and thereafter give the defendants an opportunity to file an additional written statement in answer to the amended plaint, if they wish to do so. It is made clear that on failure of the plaintiff to deposit the costs as indicated supra the above said IA 648 of 2019 shall stand dismissed.
Since it is represented that the suit is of the year 2014, the Court below shall endeavor to dispose of the suit as expeditiously as possible and preferably within four months from the date of receipt of a copy of this order.
There shall be no order as to costs.
Miscellaneous petitions, if any, pending in this revision, shall stand closed.
_______________________ M. SEETHARAMA MURTI, J 03rd December, 2019 RAR