Andhra Pradesh High Court - Amravati
Yalamanchili Santhosh Kumar vs Molli Appala Naidu on 23 September, 2023
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.662 of 2023
ORDER:
The civil revision Petition, under Article 227 of the Constitution of India, is filed against the order, dated 25.01.2023, dismissing petition in I.A.No.442 of 2022 in O.S.No.28 of 2018 on the file of the Court of the Principal Senior Civil Judge at Gajuwaka, by the plaintiff under order VI Rule 17 CPC r/w rule 28 of Civil Rules of Practice seeking permission to amend the plaint as follows:
1. Amend the plaint in para no.III (a) 29th line the time of the marriage of the plaintiff's mother "by name Yalamanchilli Appayyamma @ Lakshmi" to be added in the plaint.
2. In 3rd page 14th line subsequently the plaintiff's mother, "Yalamanchili Appayyamma @ Lakshmi"- to be added in the plaint
3. And other consequential amendment to be made wherever necessary in the interest of justice.
2. Heard Sri Narasimha Rao Gudiseva, learned counsel for the revision petitioner/plaintiff and Sri Mangena Sree Rama Rao, learned counsel for the respondents/defendants.
3. The plaintiff filed the suit to declare that the plaintiff is absolute owner of the plaint schedule property and for consequential permanent injunction restraining the defendants from 2 BSB, J C.R.P.No.662 of 2023 interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
4. The case of the plaintiff in brief that late Molli Simhachalam had two daughters and two sons, among whom defendants Nos.1 and 2 are sons and the defendant no.3 is one daughter whereas the mother of the plaintiff is another daughter. Late Molli Simhachalam gifted the suit scheduled property to the mother of the plaintiff vide document dated 20.01.1991, and delivered possession of the same to her, along with the unregistered gift settlement deed, dated 20.01.1991, and the original patta relating to the property. Later, the mother of the plaintiff executed registered gift settlement deed in favour of the plaintiff on 29.07.2017 and thus the plaintiff has right title and possession of the plaint schedule property.
5. Now, the plaintiff is seeking amendment of the plaint to include the alias name of his mother. In this regard, the plaintiff states that he mentioned in the plaint that his mother is Yalamanchili Appayyamma, whereas she was also used to be called as Lakshmi, and therefore, it is necessary to amend the plaint by adding "@ Lakshmi" after the name Yalamanchili Appayyamma.
6. The petition was opposed by filing the counter of the respondents, stating that the petitioner did not approach the Court with clean hands and approached with an evil desire to neck over 3 BSB, J C.R.P.No.662 of 2023 the respondents from the suit schedule property and make wrongful gain, and further that the plea taken by the petitioner is to project false story and no document was filed in support of the contention of the petitioner except the plaint document No.1 to prove that his mother's name is Yelamanchili Appayamma and moreover, the document No.1 itself is suspicious in nature. The respondents prayed to dismiss the petition as lack of bona fides.
7. After hearing both parties, the trial court dismissed the petition observing that the petitioner wants to change the name of the mother of the petitioner, but no document was filed in support of his version and further observed that it is nothing but changing the very root level of the case and it cannot be permitted for the sole reason that the petitioner did not approach the Court at the initial stage of the suit i.e., when the suit was filed in February 2018, whereas the petition was filed in the year 2022. The trial court further observed that the proposed amendment would change the vey stand point of the petitioner/plaintiff.
8. Having been aggrieved by the order, the petitioner/plaintiff preferred the revision.
9. The learned counsel for the petitioner contended that there is no dispute about the relationship of the petitioner with Yalamanchili Appayyamma and, moreover, the respondents are no other than the 4 BSB, J C.R.P.No.662 of 2023 maternal uncles and maternal aunt, and so they know the names of the mother of the petitioner and they did not take a plea that the name of the mother of the petitioner is incorrect. He further submitted that since the documents filed by the petitioner would disclose that she was called by both names, and it is incorrect to observe that no documentary evidence is filed. That a part, he further stated that the proposed amendment would not change the nature of the case nor cause any prejudice to the family of the respondents. Thus, he prayed to allow the revision petition. In this regard, he has drawn the attention of this Court to document No.1, which is an unregistered gift settlement deed, dated 20.01.1991 executed by Molli Simhachalam, S/o. Errayya, i.e., grandfather of the petitioner, in favour of the Yalamanchili Appayyamma W/o. Yalamanchili Simhachalam. He also has drawn the attention of this Court to the document of registered settlement deed, dated 29.07.2017 executed by Smt Yalamanchili Lakshmi, W/o Yalamanchili Simhachalam and daughter of Molli Simhachalam.
10. Since the petition was opposed on the ground that the petitioner has to establish that in spite of 'due diligence' exercised, the amendment could not be earlier taken before commencement of the trial, it is apt to first deal with the objection in that regard. Order VI Rule 17 CPC reads as hereunder:
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BSB, J C.R.P.No.662 of 2023 Order VI Rule 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial."
11. Learned counsel for the respondents submitted that the moment issues are framed, trial is said to be commenced and whereas in the present case, as the affidavit of PW1 was already submitted, trial is commenced, and thereby, there is burden on the petitioner to establish the requirement in the proviso to Order VI Rule 17 CPC. In this regard, the learned counsel for the respondent placed reliance on the decision of this Court in M.S. Gnanambika v. V. Subramanyam 1 , wherein at para No.17, it was held as follows:
"17. In view of the law laid down by the Apex Court in the above judgments, when issues were framed and the suit is posted for trial, the trial is deemed to have been commenced. Therefore the principle laid down in Baldev Singh v. Manohar Singh [2006 (5) ALT 52 (SC) : AIR 2006 SC 2832 (referred 1 (2019) 5 ALT 203 6 BSB, J C.R.P.No.662 of 2023 supra)] is no more good law, in view of the judgment of the Apex Court in Kailash v. Nankhu [(2005) 4 SCC 480 : 2005 (4) ALT 30.2 (referred supra).]"
12. On the other hand, learned counsel for the revision petitioner submitted that merely because the affidavit of PW1 was filed, since the witness is not even cross-examined, on mere too technicalities, the petition need not be declined even to amend the plaint, when there is ample material on record to show that the mother of the petitioner was called by two names and the same is important to be taken in pleading and also in evidence. He further submitted that in the event of any laches in causing a short delay, while granting the relief, some terms as costs can be imposed to meet the ends of justice and to compensate the inconvenience caused to the other party. He further submitted that the general rule is to liberally permit the amendment to the pleadings and it is only when it causes prejudice to the other side, it can be declined.
13. Though technically, the trial commenced in view of the proposition of law stated in the referred case, the evidence of PW1 is not yet completed as the cross-examination is not even commenced, so thereby, there is no possibility of filling up the evidence or causing prejudice to the other side. 7
BSB, J C.R.P.No.662 of 2023
14. In the same case, at paras 18 to 21, what is 'due diligence' has been discussed. It is as follows:
"18. In "J. Samuel v. Gattu Mahesh [2012 (2) ALT 40 (SC)] (2012) 2 SCC 300, the Supreme Court laid down certain tests as to what is 'due diligence' with reference to Order VI Rule 17 C.P.C. and proviso thereto and held as follows:
"13. 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.
14. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit."
19. The word "due diligence" is not exactly defined by the Act, but in "Bharat Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd. [2006 (6) Bom CR 510], the Apex Court held as follows:
"The Dictionary meaning of the expression "due diligence" as given in the Blacks Law Dictionary, Sixth Edition, 1990 means "Such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case." Similarly the Law Lexicon by P. Ramanatha Aiyer, Second Edition (Reprint) 2001 explains "due diligence" to mean such watchful caution and foresight as the circumstances of the particular case demands. While examining the explanation offered or cause 8 BSB, J C.R.P.No.662 of 2023 shown as to why in spite of due diligence a party could not have raised the matter before commencement of trial, the Court may have to see the circumstances in which the party is seeking amendment. In short the explanation as to "due diligence"
depends upon the particular circumstances and the relative facts of each case to reach a conclusion one way or the other."
20. In "Chander Kanta Bansal v. Rajinder Singh Anand [(2008) 5 SCC 117:2009 (3) ALT 21.1 (DN SC)], taking note of the object and purpose of Amendment Act 22 of 2002, the Supreme Court held that, the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and to ensure that one party has sufficient knowledge of the case of the other party.
21. In view of the tests laid down by the Apex Court in the judgments referred supra as to what amounts to exercise of 'due diligence', the petitioner in the present case did not aver anything in the entire affidavit as to how she exercised due diligence and despite exercise of due diligence, she could not bring those facts on record before commencement of trial. When the petitioner did not raise such plea in the affidavit filed along with this petition, the question of substantiating the same does not arise and in fact, both the parties went into trial, despite denial of title of this petitioner by the respondents about 10 years ago. Suggestions were also put to the witnesses denying the title of the petitioner. But, they did not open their eyes and slept over for a considerable period of time and when defendants witnesses are to be cross-examined, the petitioner realized the mistake she committed in seeking relief and filed petition under Order VI Rule 17 C.P.C. to raise a plea that the document sued upon is fabricated, though a specific plea is raised that the document is created one, without explaining as 9 BSB, J C.R.P.No.662 of 2023 to how she exercised due diligence and failed to take such steps." (underline is used by this Court as emphasis)
15. What is 'due diligence' is to be examined in the light of its own facts and circumstances as is noted at the end of paragraph No.19 above. Of course, the plaintiff filed both documents at Sl.Nos.1 & 3 in the list of documents filed along with the plaint itself. The gift settlement deed, dated 20.01.1991, was executed by Molli Simhachalam S/o late Molli Yerraiah in favour of Yalamanchili Appayamma w/o Yalamanchili Simhachalam. The gift settlement deed, dated 29.07.2017, was executed by Yalamanchili Lakshmi D/o Sri Molli Simhachalam and wife of Sri Yalamachili Simhachalam, in favour of the plaintiff. Therefore, it is not a sudden surprise to the defendants that both documents referred the name of the mother of the plaintiff in two different styles. Moreover, the defendants are no other than the brothers of the mother of the plaintiff. Nowhere, it is specifically contended that the name of the mother of the plaintiff is only Lakshmi and she was never called as Appayamma. What they cleverly stated in the counter is that there is no proof to show that the mother of the plaintiff named Lakshmi is also called Appayamma. If a third party to the family raises such an objection, it can be appreciated, but when the defendants are no other than her brothers and they consciously remained silent in specifically denying her name, the ground raised by the plaintiff cannot be 10 BSB, J C.R.P.No.662 of 2023 viewed with high suspicion. Moreover, permitting an amendment is not its proof. It is always the burden of a party taking a plea to prove the same. That apart, her name is described in both the documents as stated earlier, with reference to not only the name of her husband, but also the name of her father in the registered document, whereas in the unregistered document at Sl.No.1, she was described with the name of her father. Thus, even for the sake of examination to verify the prima facie substance in the contention, no more proof is required at this juncture for allowing the amendment as it would show that the ground taken is not frivolous, but requires adjudication.
16. The learned counsel for the respondents vehemently contended that the amendment once incorporated relates back to the date of the suit and referred to the decision of the Supreme Court in Alakapuri Co-operative Housing Society Ltd. V. Jayantibhai Naginbhai (deceased) through L.Rs 2, wherein at paragraph No.17 referred to its earlier in the case of Sampath Kumar v. Ayyakannu and Another [(2002) 7 SCC 559] in which the decision of Siddalingamma v. Marniha Shenoy [(2001) 8 SCC 561] was cited with regard to the proposition that an amendment once incorporated relates back to the date of the suit. 2 AIR 2009 SUPEME COURT 1948 11 BSB, J C.R.P.No.662 of 2023 For the purpose of convenience, paragraph No.17 is noted herein below:
"17. The decision in the case of Pankaja (supra) itself is an authority for that proposition. So far as the decision in the case of Sampat Kumar (supra) is concerned, this Court has struck a bit different note therein as it was observed:
10. 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 v. Mamtha Shenoy AIR 2001 SC 2896]."
17. There is no controversy about the legal proposition. Since the period of limitation is not the subject matter in consequence to allowing the proposed amendment, no stress is required to be laid on this aspect.
18. The proposed amendment is required for the purpose of establishing the case of the petitioner/plaintiff as a whole. Merely because, the defendants raised unfounded grounds of prejudice to them in the event of granting the relief, the amendment need not be refused.
19. The trial Court, without examining the necessity to permit the amendment, declined the same with an erroneous observation that 12 BSB, J C.R.P.No.662 of 2023 the permission to amend the name would change the very root level of the case and so, it cannot be permitted. In fact, it does not change the nature of the suit or the relief. It would enable only case already pleaded by the plaintiff with support of the documents filed. It is always the burden of the plaintiff to prove his case. If at all, the documents filed by the plaintiff do not establish his title by virtue of the document at Sl.No.1 & 3, in the light of the other documents, the fate of the suit depends on the same. As such, since the trial Court failed to exercise its jurisdiction in a correct way though amendment is required, the order impugned in the revision needs to be interfered with.
20. In the result, the Civil Revision Petition is allowed setting aside the order, dated 25.01.2023, passed in I.A.No.442 of 2022 in O.S.No.28 of 2018, and the said I.A.No.442 of 2022 is allowed, as prayed for, subject to the condition that the petitioner shall pay the contesting respondents costs of Rs.3,000/- within 15 days from the date of this order failing which the revision petition shall stand dismissed without any further orders. The compliance of the condition in the order can be reported to the trial Court.
Pending miscellaneous petitions, if any, shall stand closed.
________________ B.S.BHANUMATHI, J 23-09-2023 Note:- Issue CC by 27-09-2023 (B/o) KMS/RAR