Andhra Pradesh High Court - Amravati
P V Vasantha Lakshmi Kumari vs P Venkateswara Rao on 12 July, 2019
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition no.592 of 2019
ORDER:
The unsuccessful respondents - defendants filed this Civil Revision Petition, under Article 227 of the Constitution of India, assailing the order, dated 04.02.2019, of the learned Principal Junior Civil Judge, Mangalagiri, passed in IA.No.1580 of 2018 in OS.no.1 of 2016 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 ['the Code', for brevity] for amendment of the plaint.
I have heard the submissions of Sri D. Yathindra Dev, learned counsel for the revision petitioners - defendants and of Sri V.S.K. Rama Rao, learned counsel for the respondent - plaintiff. I have perused the material record.
The parties in this revision shall hereinafter be referred to as they are arraigned in the original suit for convenience and clarity.
The introductory facts are as follows: - "The plaintiff initially instituted the suit against the defendants for a perpetual injunction. The defendants are resisting the suit. During the pendency of the suit, the plaintiff filed the afore- stated IA for amendment of the plaint. The same was resisted by the defendants. On merits and by the orders impugned in this revision petition, the trial Court allowed the petition of the plaintiff and permitted to amend the plaint. Aggrieved thereof, the defendants are before this Court."
The case of the plaintiff in support of the request for amendment of the plaint, in brief, is this: "He instituted the suit originally seeking a decree for perpetual injunction. The plaint schedule property fell to the share of his 2 MSRM,J CRP_592_2019 brother Panduranga Rao in a partition amongst the plaintiff, his said brother and their father, late PeddiHanumantha Rao. Later the said brother of the plaintiff gifted the said property to the plaintiff under a registered gift deed, dated 14.03.1996, duly registered in the office of theSub-Registrar, Tadikonda, and delivered vacant possession of the same to the plaintiff. After the death of the father of the plaintiff, as the plaintiff was residing far from the plaint schedule property, he entrusted the property to the 1st defendant, for maintenance of the mother, as the 1st defendant used to look after his mother. His mother died in the year 2014. While so, the plaintiff came to know that the defendants 1& 2 taking advantage of the relationship got executed a gift deed in the nameof the 3rd defendant to knock away the plaint schedule property, which belongs to the plaintiff. Under the guise of the said gift deed,dated 07.05.2001, the 3rd defendant is claiming the entire property. Hence, he was advised to seek declaration of title to the plaint schedule property as per his giftdeed,dated 14.03.1996, as his father had no title to convey any right to the 3rd defendant and as her gift deed, dated 07.05.2001, is non est in the eye of law, as the property never belonged to the father but belonged to this plaintiff.The property, which belonged to this plaintiff, was also conveyed by his father to the 3rd defendant under the alleged gift deed, dated 07.05.2001; the said deed is void ab initio insofar as the plaint schedule property. The plaint schedule property is to be excluded from the said gift deed executed in favour of the 3rd defendant. Hence, in the suit, the relief of declaration is also to be included. Non inclusion of the said relief would be fatal to the suit. Under the said circumstances, it became necessary to seek amendment of the plaint for adding the necessary valuation particulars in paragraph 5 of the plaint and also 3 MSRM,J CRP_592_2019 the relief 'd' at paragraph 7 as follows: - "to declare that the alleged gift deed bearing No.700/2001 dt.07-05-2001 said to have been executed by Late PeddiHanumantha Rao in favour of the 3rd defendant is null and void to the extent of the plaint schedule property which is an extent of Ac.1.00 cents of land upon which the title rests to the plaintiff as per his gift deed bearing No.249/96 dt.14-03-1996 and that the plaintiff is absolute title holder of the plaint schedule property."
Per contra, the case of the defendants is this:
The allegations that the property fell to the share of the plaintiff's brother Panduranga Rao in a partition that took place amongst the plaintiff, his brother and their father during the life time of the father and that later, the said brother gifted the property under the gift deed,dated 14.03.1996, to the plaintiff and delivered vacant possession of the property to him and the other allegations are all false and invented for the purpose of the present petition.Further allegations that as the plaintiff is residing far from the property,he entrusted the property to 1st defendant, after the expiry of his father, for maintenance of his mother, as the 1st defendant used to look after the mother till her death in the year 2014 and that later he came to know about the execution of the gift deed in the name of the 3rd defendant and that the said deed was executed by the father in favour of the 3rd defendant to knock away the property and that his father has nothing to do with the property andthat the property belongs to the plaintiff and that the gift deed executed by late father in favourof the 3rd defendant is ab initio void in so far as the subject property etcetera are all false. The reasons stated for seeking amendment of the plaint 4 MSRM,J CRP_592_2019 are false and denied. The proposed relief being sought to be introduced into the plaint by way of amendment is barred by law of limitation. The defendants have made a counter claim in the suit. After conclusion of the trial of the suit and when the matter is at the stage of arguments, the plaintiff, who is an employee in the judicial department, got filed the present petition by abusing the process of law and by raising false and baseless contentions and making claims to which he is not entitled to. The petition is filed with a view to drag on the matter and keep the litigation pending and cause annoyance and inconvenience to the defendants. There are no bona fides on the part of the petitioner. He did not approach the Court with clean hands. Hence, the petition may be dismissed.
At the hearing, learned counsel for the defendants contended as follows:
The application seeking amendment is filed without compliance of the provision of Rule 28 read with Rule 54 of Civil Rules of Practice [CRP]. The consequential amendments are not shown in the application filed for amendment. The trialCourt, having agreed with the contention of the defendants that the application is filed without compliance of the said Rules, however, brushed aside the said aspect by observing that unfortunately the petition is numbered and reached the stage of enquiry and, therefore, the petition cannot be dismissed on the ground of non compliance of the requirement of the said Rules.The said finding of the trial Court is perverse and erroneous. In the relief claimed in the application for amendment of the plaint, it is only stated that the Court may be pleased to add paragraph 5 in the particulars of valuation in the plaint and further add para 'd' in the relief 5 MSRM,J CRP_592_2019 portion at para 7 of the plaint. The said prayer does not satisfy the requirements of the Rules 28 & 54 of CRP. Hence, the application is liable for rejection. After the application for amendment was allowed by the trialCourt, the plaintiff filed amended neat copy of the plaint showing a different relief in para 'd' of paragraph 7 of the plaint. In the affidavit filed in support of the applicationfor amendment, the proposed amendment is mentioned as follows: 'to declare that the alleged gift deed bearing No.700/2001 dt.07-05-2001 said to have been executed by Late PeddiHanumantha Rao in favour of the 3rd defendant is null and void to the extent of the plaint schedule property which is an extent of Ac.1.00 cents of land upon which the title rests to the plaintiff as per his gift deed bearing No.249/96 dt.14-03-1996 and that the plaintiff is absolute title holder for the plaint schedule property.'Whereas in the neat copy of amended plaint, the relief was shown as follows: - "for cancellation of Gift deed bearing No.700/2001 dt.07-05-2001 said to have been executed by late PeddiHanumantha Rao in favour of 3rd defendant is null and void to the extent of the plaint schedule property which is an extent of Ac.1.00 cents of land upon which the title rests to the plaintiff as per his gift deed bearing No.24/1996 dated 14-03-1996 and that the plaintiff is absolute title holder for the plaint schedule property."The amended plaint is liable for rejection as the amendment carried out and mentioned in theneat copy of the plaint is totally different from the amendment sought for and permitted by theCourt below. Entire trial is completed. The proposed amendment of the plaint sought at a belated stage, if permitted, changes the nature of the suit and causes substantial prejudice to the defendants. The gift deed being sought to be declared as null and void is dated 07.05.2001. PW1, in his examination, admitted to the 6 MSRM,J CRP_592_2019 following effect:- 'In the gift deed executed by my father in favourof the 3rd defendant, I and my brother attested and figured as identifying witnesses before the Registrar.'Hence, it is clear that the plaintiff is having knowledge of the said document from the date of its execution. He also admitted that after the death of his mother, on 10.02.2014, he was shown certain documents by the defendants, which revealed that the plaintschedule property belonged to the 3rd defendant. Period of limitation for initiating legal action for cancellation of the afore-stated gift deed is three years from the date of knowledge. However, the present application for amendment is filed after a lapse of 17 years. Hence, the proposed amendment is barred by law of limitation and if allowed causes great prejudice to the defendants and results in defeating a legal right, which accrued to them on account of lapse of time. The trial Court without considering the said important contention of the defendants, grossly erred in observing that an application for amendment of plaint cannot be rejected merely on the ground of delay and went on observing to the extent that the proposed amendment is filed within limitation. The said far reaching observation was made without considering the provisions of law of limitation. The trial Court wrongly prejudged the issue of limitation, while considering the plaintiff's request for amendment of the plaint.
Per contra, learned counsel for the plaintiff while supporting the order of the trial Court inter alia contended as follows: "The trial Court, having referred to a decision of the Supreme Court, held that mere delay cannot be a ground for rejection when the amendment sought is necessary for proper and effective adjudication of the disputes between the parties. The trial Court 7 MSRM,J CRP_592_2019 passed a reasoned order adverting to the facts and the legal position. Therefore, such a well considered order does not warrant interference in the present revision filed by the defendants."
However, while fairly stating that the amendment is not properly carried out and in the amended neat copy of plaint a different amendment than that was permitted was shown, learned counsel for the plaintiff submitted that the said aspect does not debar the plaintiff from admitting the mistake and filing a fresh neat copy of plaint, with the permission of the Court, by showing the amendment correctly.
I have given earnest consideration to the facts and submissions. To begin with, it is not in dispute that the plaintiff and the defendants are closely related. The plaintiff originally brought the suit for perpetual injunction in respect of the plaint schedule property claiming the property under a gift deed,dated 14.03.1996, said to have been executed by his own brother in his favour by inter alia claiming that in a partition amongst the brothers and the father the property fell to the share of his brother, the donor. The plaintiff also admits that he entrusted the property to the 1st defendant, his sister, as he wantedher to lookafter the mother, after the death of the father and that his mother died in the year 2014 and that later he came to know that the 1st defendant and her husband, the 2nddefendant, taking advantage of the relationship had obtained from the father of the plaintiff a gift deed in the nameof their daughter, the 3rd defendant,in the year 2001. The plaintiff further contends that the father has no right, title and interest in the plaint schedule property to convey the same under the said gift deed of the year 2001 to 8 MSRM,J CRP_592_2019 the3rddefendant and that the gift deed is void ab initio and that in viewof the said circumstances he is obliged to seek amendment of his plaint to include a prayer for declaration that the gift deed,dated 07.05.2001, executed by the father in favour of the 3rd defendant isnull and void to the extent of the plaint schedule property mentioned therein. However, the main contention of the defendantsis that the plaintiff is aware of thegift deed right from the inception, that is, from the date ofits execution, on 07.05.2001, and that the relief of declaration, which the plaintiff now wants to introduce into the plaint by way of proposed amendment is clearly barred by law of limitation and that if such a time barred amendment is permitted, the defendants suffer serious loss and prejudice and allowing such an amendment would result in defeating a valuable right accrued to them by lapse of time. In support of the said contention, they placed reliance on the deposition of PW1 already recorded in the very same suit, wherein hestated verbatim as follows: 'In the gift deed executed by my father in favour of the third defendant, I along with my brother attested and stood as identifying witnesses before the Registrar.'It is also borne out by the record that the plaintiff admits that after the death of his mother when he asked the 1stdefendant to handover his property, the 1st defendant andher husband informed that his father executed gift deedin favour of the3rddefendant for total extent of Ac.4.15 cents including the suit schedule property. Therefore,the plaintiff cannot be heard to say that he is not aware of the gift deed,dated07.05.2001, executed by his father in favourof his sister's daughter, that is, the 3rd defendant, wherein he figured not only as an attestor but also as an identifying witness along with his own brother. Even assuming for a moment that the period of limitation for seeking a declaration with regard 9 MSRM,J CRP_592_2019 to the gift deed,dated 07.05.2001, is 12 years,anysuch declaration has to be sought within 12 years from the date of gift deed, that is, 07.05.2013, as the plaintiff admittedly attested the said document and also figured as an identifying witness before the Registrar at the time of execution of the same by his father in favour of the 3rd defendant. Therefore, the amendment that was being sought by the plaintiff challenging the gift deed,dated 07.05.2001, in 2018 is clearly barred by law of limitation. In that view of the matter, thisCourt is of the view that permitting the amendment would defeat a valuable right that has accrued to the defendantsby lapse of time and would cause prejudice to them if it is allowed. The trial Court only held that delay is not a ground for rejection of amendment without considering this aspect namely, the plea based on law of limitation, though such a contention merited consideration. When on the admitted facts it is obvious that the relief being sought to be introduced into the plaint by way of proposed amendment is clearly barred by law of limitation and when on the admitted facts it is not necessary to delve on or investigate into any other facts to come to such a just conclusion, then the law is very clear that such a relief that is being sought to be claimed by means of the proposed amendment cannot be permitted. The above view finds support from the decisions of the Supreme Court in K. Raheja Constructions Ltd., and Anr. v. Alliance Ministries and ORs [1995 Supp.(3) SCC 17] and Vishwambhar and others v. Laxminarayana (dead) through LRs and another[(2001) 6 SCC 163]. In the decision in K. Raheja Constructions Ltd., (supra), the Supreme Court was seized with a belated application to amend a plaint filed for permanent injunction. The Supreme Court noted that seven years after the institution of the suit, 10 MSRM,J CRP_592_2019 theamendment application was moved seeking to amend the relief in the plaint to one for specific performance of contract. In turning down such amendment on the ground that it was time-barred, the Supreme Court held:
"It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The Petitioners having expressly admitted that the Respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed he period of seven years to elapse from the date of filing of the suit, and the period of limitation before three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment n the grounds set out, would defeat the valuable right of limitation accruing to the Respondent."
In the decision in Vishwambhar [supra],an amendment was sought to be made after the limitation period had expired with a prayer to declare that certain sale deeds be set aside. The Supreme Court repelled the said prayer.
The ultimate test is -'can the amendment be allowed without injustice to the defendants?' In the case on hand, the power to allow amendment, if exercised, takes away a legal right, which has accrued to the defendant by lapse of time. Though the principle that there was full power to permit the amendment cannot be disputed, in view of the admitted factual matrix, and in the absence of special circumstances, this Court is of the considered view that the amendment sought for by the plaintiff cannot be permitted as such power, if exercised, would take away a legal right that has accrued to the defendants and results in injustice to the defendants.
Further, in the application for amendment, the plaintiff had only sought the amendment of the valuation paragraph in the plaint and also requested to 11 MSRM,J CRP_592_2019 incorporate in the prayer portionof the plaint a further relief/prayer viz., declaration that the gift deed in favour of the 3rd defendant is null and void. He did not seek to introduce any amendments in the body of the plaint, that is, for insertion of a paragraph in the plaint with the necessary pleading, if any, in support of the said proposed relief. Thus, by way of the proposed amendment, though a relief in the nature of declaration is being sought to be introduced into the plaint, to succeed on the said aspect, though the plaintiff is required to make a foundation in the pleading, no foundation is beingsought to be laid by seeking to incorporate a paragraph in the plaint in support of the proposed relief. Mere introducing a prayer by way of amendment in the plaint without incorporating in the body of the plaint any pleading, which ought to be a foundation for seeking the said proposed relief, would be of no avail to the plaintiff, as the law is well settled that any amountof evidence in support of a relief in the plaint without a pleading in support of the plaintiff's claim,the said relief cannot be looked into. Therefore, as rightly contended by the defendants,mere seeking of amendment of the prayer portion of the plaint alone for challenging the gift deed, without seeking any amendment of the bodyof the plaint for insertion of a relevant pleading in support of such challenge to the gift deed being of no avail to the plaintiff, shall not be permitted as permitting such an amendment would serve no purpose. In that view of the matter also, the application for amendment being defective is liable for dismissal.
For all the afore-stated reasons and as the order of the trial Court reflects that it was passed without adverting to the vital contentions of the 12 MSRM,J CRP_592_2019 defendants, this Court finds that the order impugned is unsustainable both under facts and inlaw and hence, brooks interference.
In the result, the Civil Revision Petition is allowed and the order impugned is setaside and consequently IA.no.1580 of 2018 in OS.no.1 of 2016 on the file of Principal Junior Civil Court, Mangalagiri, is dismissed. It is needless to state that the trial Court shall now proceed to dispose of the suit on the basis of the original plaint.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
__________________________ M. SEETHARAMA MURTI, J 12.07.2019 Vjl 13 MSRM,J CRP_592_2019 THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI Civil Revision Petition no.592 of 2019 12.07.2019 Vjl