Andhra Pradesh High Court - Amravati
K. Padma Joshi vs Rev. Doraballi John Augustine on 21 March, 2025
APHC010584882024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
FRIDAY, THE TWENTY FIRST DAY OF MARCH
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL REVISION PETITION No: 15/2025
Between:
K. Padma Joshi and Others ...PETITIONER(S)
AND
Rev Doraballi John Augustine and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. SOMISETTY GANESH BABU
Counsel for the Respondent(S):
1. MANNAM RAJA SEKHAR
The Court made the following:
2
ORDER:
The petitioners in S.R.O.P.No.6 of 2017 (hereinafter called as „original petition‟) on the file of the I Additional District Judge, Prakasam at Ongole, filed O.P. under Section 23 of the Societies Registration Act, 2001, to declare the standing committee resolution dated 06.06.2017 in "re-appointing" the 1st respondent in the Original Petition as Pastor, as illegal, ultra vires, against the principles of natural justice and, consequently, prayed to set aside the appointment of the 1st respondent by name Rev. Doraballi John Augustine, as Pastor.
2. The 1st respondent in the original petition made an application to the society, JMB Church to appoint him as Pastor and his appointment was validated with certain conditions through resolution dated 06.06.2017. The said resolution was assailed in the aforesaid original petition stipulating some conditions, which are irrelevant for the purpose of disposal of the present Civil Revision Petition.
3. The 1st respondent as well as other respondents have filed their counters in the original petition and contended that the very filing of the petition is not maintainable and raised several other grounds for dismissal of the original petition filed by the petitioners herein. 3
4. The petitioners herein filed I.A.No.853 of 2024 in S.R.O.P.No.6 of 2017 for amendment of the prayer in the main petition on the ground that instead of "appointment" of 1st respondent, it was mentioned as "re-appointment", therefore, the word "re-appointment" as appeared in the first prayer, has to be substituted with word „appointment‟ by way of amendment in prayer column.
5. The 1st respondent herein filed counter in I.A.No.853 of 2024 and the relevant portion of the counter is hereby extracted:
"The present S.R.O.P., filed by the 5 petitioners on 21.12.2017 along with interlocutory application. On contest, interlocutory application was dismissed by this Honourable Court, the petitioners went to Honourable High Court of Andhra Pradesh and C.R.P., also disposed off with specific directions. This respondent filed his counter in the main S.R.O.P., on 13.2.2019. Subsequently on 31.7.2019 the S.R.O.P., was dismissed for default. The present counsel Sri K.R.R. Garu filed vakalat on 2.8.2019 in the above matter. The above matter restored on 29.11.2019, then on 13.12.2019 the evidence of 2 petitioner as P.W.1 was filed and the P.W.1 filed additional chief examination affidavit on 13.06.2022, P.W.1 was cross-examined at length and subsequently on 13.2.2023 the P.W.1 also filed additional chief examination affidavit, then also P.W.1 was cross examined. P.WE. 2 evidence was filed on 12.5.2023 and cross examined him. Subsequently the evidence of this respondent as R.W. 1 filed and the R.W. 1 was also cross- examined at length by the petitioners, subsequently the evidence of 3rd respondent was filed as R.W.2 and R.W.2 also cross-examined by the petitioners. On behalf of the petitioners and respondents arguments also submitted and 4 written arguments also filed by both parties. While the above matter coming up for submitting arguments by the petitioners, the petitioners came forward with the present petition to amend the word "re-appointment" as "Appointment"."
6. The 1st respondent also further asserted that the proposed amendment changes the entire cause of action of the main petition. Hence, prayed to dismiss the I.A. filed for amendment of the main prayer of the petition.
7. The learned I Additional District Judge, Prakasam at Ongole, after hearing both sides and on perusal of the record, has dismissed the I.A., vide order dated 11.11.2024, observing that:
"The amendment cannot be allowed after commencement of trial unless the petitioners unable to bring the facts with due diligence and has not accepted the contentions made by the petitioners that the proposed amendment is only in the nature of rectifying the typographical mistake and it will not create any new cause of action or question of adducing further evidence, and further observed that the said application is devoid of any force."
8. Assailing the order dated 11.11.2024 in I.A.No.853 of 2024, the present Civil Revision Petition is filed under Article 227 of the Constitution of India, on the ground that the amendment of the prayer in 5 the SROP is only a typographical mistake and it will not cause any prejudice or injustice to the other side and the proposed amendment is for resolving real controversy between the parties and only mentioned the judgment of the Hon‟ble Apex Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited1.
9. Learned designated senior counsel for the 1st respondent Pastor Sri C.Nageswara Rao, appearing on behalf of learned counsel on record for the 1st respondent, has reiterated the counter averments and argued that the said amendment would cause prejudice to the 1st respondent and it would entirely changes the cause of action and the present petition is filed at belated stage and despite having several opportunities, the petitioners have not filed the application during the course of trial. The learned senior counsel further submits that the present application is filed belatedly by circumventing the law and the petitioners should be circumspect while drafting the main petition prayer while seeking a declaration to set aside the appointment of the 1st respondent as Pastor, which was validated through proceedings dated 06.06.2017, and argued that the present petition for amendment of 1 (2022) 16 SCC 1 = 2021 (2) ALT 265 6 prayer is filed intentionally to delay the trial. Hence, prayed to dismiss the C.R.P. with exemplary costs.
10. Learned counsel for the petitioner has made his submission relying on the judgment of the Hon‟ble Apex Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited's case (1 supra) and argued that no prejudice is caused to other, if the interlocutory application is allowed. In the said case, the Hon‟ble Supreme Court has summed up in the following:
(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 48 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.
(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 7
(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 49 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 mala fide, 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 hypertechnical 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.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time 8 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 the 9 parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897).
11. The suit was instituted or plaint was presented in the year 2017 with a main prayer to declare the standing committee resolution dated 06.06.2017 in "re-appointment" of the 1st respondent as Pastor as illegal. The present amendment petition is filed to amend the word "re- appointment" as "appointment". At para No.5 of the affidavit filed in support of the interlocutory application, it is stated or asserted that the amendment is only in the nature of rectifying the typographical mistake and it would not create new cause of action. Hence, sought to amend the prayer.
12. It is imperative to extract the relevant provision i.e., Order VI Rule 17 of C.P.C.
"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
13. On careful examination of the affidavit filed in support of the interlocutory application, there is no such assertion made in spite of due diligence, that the petitioners have not noticed that "re-appointment"
was drafted in the place of "appointment". The learned trial Judge has dismissed the application, as it hard to fathom (understand) why such an assertion regarding due diligence, as required under proviso to Order VI Rule 17 C.P.C., was not stated in the affidavit.
14. The Hon‟ble Apex Court in Pandit Malhari Mahale Vs. Monika Pandit Mahale2, referring the judgment titled as Vidyabai & Ors. Vs. Padmalatha & Anr.3 held as under:
"It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The court‟s jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the 2 (2020) 11 SCC 549 3 (2009) 2 SCC 409 11 High Court as well as of the Civil Judge, the amendment application stands dismissed."
15. As seen from the above judgment, it is imperative that once the trial has commenced, the affidavit must contain an assertion that, despite due diligence, the petitioner is unable to identify the defect. There is no such assertion in the affidavit regarding to the aforesaid postulation. The trial judge specifically stated that the proviso to Order VI, Rule 17 was not followed, and on that ground, the interlocutory application for the amendment of the prayer was dismissed.
16. There is no such legal flaw in the order of the leaned trial Court Judge. As such, this Court is declined to interfere with the well reasoned order of the learned trial Court Judge.
17. Accordingly, the present Civil Revision Petition is dismissed with costs of Rs.5,000/- (Rupees five thousand only) payable to the District Legal Services Authority, Prakasam District at Ongole, by the 1st petitioner within a period of two (2) weeks from the date of the order and the trial Court is directed to recover the said amount from the 1st petitioner herein, and if the 1st petitioner failed to pay the amount within 12 two weeks, the trial Court is directed to send the 1st petitioner to the civil prison for a period of one week.
As a sequel, interlocutory applications pending, if any, in this case, shall stand closed.
__________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date:21.03.2025 siva 13 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO CIVIL REVISION PETITION No.15 OF 2025 Date: 21.03.2025 siva