Andhra Pradesh High Court - Amravati
Chilamkurthi Kesava Mohana Rao vs Chilamkurthy Tulasi Ratnam on 31 March, 2022
THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
C.R.P.No.6295 of 2018
ORDER:
This revision petition is preferred under Article 227 of the Constitution of India against the order dated 24.09.2018 in I.A.No.383 of 2018 in A.S.No.25 of 2012 on the file of the court of VI Additional District Judge, Krishna, Machilipatnam.
2. The suit is filed for partition. Before filing the suit, the plaintiff issued legal notice claiming partition of 10 items of property. No reply was given. When he filed suit for partition he omitted items of property to two or three leaving the rest of the properties. No mention is made in the plaint as to why the other properties are not included the suit for partition. Defendant took plea that the suit is bad relief of partial partition of the alleged joint family properties. Inspite of such plea, no issue was framed on the maintainability of the suit for partial partition. Suit was decreed. Against the same, appeal was preferred by the 5th defendant. Among other grounds raised, it is specifically contended that the suit is not maintainable for partial partition of the properties or parties, without making any reservation with leave of the Court and that the plaintiff and others filed another suit O.S.No.218 of 2007 on the file of the very court for similar relief in respect of some properties and the same was dismissed for default and the same was admitted by the plaintiff/PW1 and thereby the present suit is vexatious. With regard to partial partition, it is also contended in the appeal by the appellant that the trial Court should have directed the plaintiff to furnish the particulars of entire properties alleged to have been in joint among the plaintiff and the defendants and should have dismissed the suit for partial partition. Further, the appellant contended that there was earlier partition and, therefore, the suit is not maintainable for repartition.
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3. In view thereof, the plaintiff/R-1/petitioner filed the present petition under Order 6 Rule 17 CPC to amend the plaint to include that except the plaint schedule properties, there are no other properties for partition, due to oversight the plaintiff got mentioned some other properties other than the properties mentioned in the plaint schedule. Therefore, there are no other properties, except the plaint schedule properties for partition.
4. Counter is filed by the 5th defendant/appellant/1st respondent opposing the petition stating that the petitioner is aware of the notice sent by him, which contains 10 items of property and curiously he did not mention all the properties in the plaint schedule and it is admitted case that third party alianees are in possession of the properties left by the petitioner in the plaint and whereas this respondent took a plea in the written statement that the suit is bad for non-joinder of necessary parties and also for not showing all the parties interested in the property, yet the petitioner had not taken any steps to get the plaint amended at the trial Court. This respondent further opposed the petition that Order 6 Rule 17 CPC does not apply to the appeal. He mainly opposed on the ground that the proposed amendment would take away substantial right of the maintainability of the suit.
5. After hearing both sides, the appellate court dismissed the petition observing that the petitioner/plaintiff miserably failed to give cogent or valid explanation as to why he could not plead for such amendment when the matter was pending in the trial court despite specific averment in the written statement, which was pointed out in Ex.A.1 notice. It is further observed that the petitioner failed to prove that inspite of due diligence, he could not raise the matter before the commencement of the trial and that granting of liberty to amend the plaint at this belated stage would cause serious prejudice to the respondent/appellant/defendant. Thereby, the appellate Court has accepted the contention of the respondent/5th defendant that a plaint cannot be 3 amended at the appeal stage. However, since the petitioner failed to avail the opportunity at the earliest point of time when the matter was before the trial Court, and the proposed amendment would cause serious prejudice to the interest of the contesting respondent, the appellate court felt it not just to allow the amendment.
6. Having aggrieved by the same, the petitioner preferred this revision petition contending that the case of the petitioner is not incorrect perspective and in the light of the principles laid down in various cases and the provisions of Order 6 Rule 17 CPC were misinterpreted; and that the finding of the appellate court that the proposed amendment to withdraw the pleadings of the plaintiff in the notice under Ex.A.1 is unsound, since the contentions in the notice cannot be considered as pleadings in the suit and further the appellate Court failed to notice that the petitioner has given explanation for not including the properties in the suit claimed under the notice. It is also contended that the 1st respondent has not come up with a specific plea of existence of other properties in the written statement except stating that the suit is bad for partial partition and in the counter also 5th defendant did not specifically mention the existence of other properties. It is also contended that the Appellate Court failed to see that in a suit for partition, all the parties stand in equal footing and no prejudice would be caused to the respondents, if the proposed amendment is allowed.
7. Heard both sides.
8. A perusal of Order 6 Rule 17 CPC makes it clear that whatever amendments sought to the pleadings before commencement of the trial can be liberally granted, whereas such amendments sought after commencement of the trial need to be viewed in the light of the condition mentioned in the proviso, ie. inspite of due diligence, the party could not have raised the matter before commencement of the trial. Here, in the present case, this petition is 4 filed before the appellate Court instead of filing the same before the trail Court. Though it is maintainable at the stage of appeal, what is to be now seen is whether the petitioner has due diligence in seeking such relief. It is an admitted fact that the 5th defendant has taken a specific plea that the suit is not maintainable for partial partition. In this context, he mentioned the number of items given by the plaintiff in the legal notice under Ex.A.1 and also the number of properties which are sought in the schedule of plaint out of those mentioned in the notice. Similarly, there is also a plea regarding another suit filed by the plaintiff for similar relief and the same being dismissed for default. It is not clear whether the properties mentioned in the other suit and all mentioned in the present suit are one and the same or not. Irrespective of the fact regarding the other suit dismissed for default, it is clear that the number of properties mentioned in the legal notice are all not included in the present suit. However, the petitioner has not given any reason why they are not included. One cannot lose sight of the fact that a specific plea is taken in the written statement, which is referred above. Inspite of such plea and the cross examination on the said facts, the plaintiff has not chosen to take any steps before the trial Court. The appeal was filed in the year 2012 raising specific plea pointing out the defect in the maintainability of the suit. Probably, it is only when the matter in appeal came up for hearing of the case in the year 2018, the petitioner has filed this petition, though not expressly stated, in view of such grounds raised in the appeal. In the light of these facts, it cannot be said that the petitioner has exercised due diligence at any point of time before filing this petition. It is not just a question of delay, but, absence of due diligence is the criteria.
9. Since the petitioner seeks to make it a plea that properties, other than those already mentioned in the plaint are not available for partition, even from the available pleadings, if it is true, the same can be established by him. Therefore, by not allowing the amendment, no great prejudice is likely to be 5 caused to him. Rather, prejudice is likely to be caused to the defendants by allowing the proposed amendment, as the proposed amendment is likely to have effect of taking away the ground available to them in challenging the maintainability of the suit. Therefore, there is no merit in the revision petition, and the same is liable to be dismissed.
10. In the result, the revision petition is dismissed. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J 31st day of March, 2022 PNV