Andhra HC (Pre-Telangana)
Alimineti Sadanandam vs Daripelly Narayana Charyulu And Ors. on 13 February, 2007
Equivalent citations: 2007(4)ALD132, 2007(3)ALT624
ORDER C.Y. Somayajulu, J.
1. Revision petitioner filed a suit for partition of the plaint "A", "B" and "C" schedule properties into six equal shares by metes and bounds and for allotment of one such share to him.
2. After the sixth defendant filed his written statement, revision petitioner filed a petition under Order VI Rule 17 CPC, seeking leave of the Court to amend the plaint by introducing a plea that inasmuch as the agreement of sale dated 2-3-2005 relied on by the sixth defendant is not binding on him, the said agreement may be declared null and void, and filed another petition seeking leave of the Court to file a rejoinder. Both the said petitions were heard together and by a common order, the trial Court dismissed the petition for amendment and allowed the petition seeking leave to file a rejoinder. Aggrieved by the order dismissing the petition for amendment of the plaint, plaintiff filed this revision.
3. The main contention of the learned Counsel for the revision petitioner is tha since the revision petitioner came to know about the agreement of sale in favour of the sixth defendant only after the sixth defendant filing his written statement and since the trial of the suit is yet to be commenced, the trial Court was in error in dismissing the petition for amendment.
The contention of the learned Counsel for the sixth defendant (sixth respondent) is that since allowing the proposed amendment would alter the nature of the suit and the cause of action also, the order under revision needs no interference. He placed strong reliance on Rafeeq Ahmed v. Hameed Ahmed Khan and Kantham Narasimha Reddy v. Puran Buchaiah in support of his said contention.
4. The suit is for partition of the plaint "A" to "C" schedule properties on the ground that they are the joint family properties of the revision petitioner and respondents 1 to 5. The agreement of sale relied on by the sixth respondent is in respect of the plaint "A" schedule property and his contention, in his written statement, is that inasmuch as the plaint "A" schedule property is the self-acquired property of the first respondent i.e., the father of the revision petitioner, he (first respondent) as absolute owner thereof, has every right to alienate the same without reference to his sons.
5. The issue to be decided in the suit would be whether the plaint "A", "B" and "C" schedule properties are the joint family properties or not. If the plaint schedule properties are held to be joint family properties, only question whether the alienation of the plaint "A" schedule property by the first respondent is binding on the revision petitioner and others would arise. So the trial Court was in error in observing that the proposed amendment alters the nature of the suit and cause of action.
6. Rafeeq Ahmed case (1 supra), relied on by the learned Counsel for the sixth respondent, arose out of a suit for partition and perpetual injunction restraining respondents 2 to 8 therein from alienating the plaint schedule property in that suit. First respondent therein chose to remained ex parte. Respondents 2 to 8 therein pleaded that they purchased the plaint schedule property from the maternal grandmother of the plaintiff. Subsequently, plaintiff filed a petition seeking leave to amend the plaint by adding the relief of declaration of tile and recovery of possession of the plaint schedule property from respondents 2 to 8 therein The trial Court dismissed the petition on the ground that the proposed amendment changes the nature of the suit, which the learned Judge upheld. The facts in that case are different from the facts of his case. The case of respondents 2 to 8 therein is that they purchased the property from the maternal grandmother of the plaintiff in that suit. Maternal grandmother's property cannot be a joint family property. So the plaintiff in that case filed a petition seeking leave to add the relief of declaration of the title to the plaint schedule property. Relief of partition is different from relief of declaration of title. So it was held that the proposed amendment changes the nature of the suit. In this case, the issue is whether the plaint "A" schedule property is the joint family property or not. If the plaint "A" schedule property is held to be the joint family property only the question whether the alienation made by the first respondent is binding on the revision petitioner or not would arise for consideration. Question relating to the validity of the agreement of sale in favour of the sixth respondent, in any event, has to be gone into in the suit. So it cannot be said that the proposed amendment alters the nature of the suit or cause of action, more so because the transaction between the first respondent and sixth respondent is a mere agreement of sale but not a sale.
7. The ratio in Kantham Narasimha Reddy case (2 supra) is that amendment of pleadings can be permitted at any stage of the proceedings and delay, by itself, is not a ground for disallowing the amendment, and that a party cannot be permitted to introduce, by way of amendment, a plea which is inconsistent with the earlier plea and which introduces a new cause of action. In this case, the revision petitioner sought amendment of the plaint by introducing the relief of cancellation of the agreement of sale executed by the first respondent in favour of sixth respondent in respect of the plaint "A" schedule property. That plea cannot be said to be a plea inconsistent with the original plea taken, and does not introduce a new cause of action. The amendment is necessitated because the sixth respondent is alleging in his written statement that the first respondent put him in possession of the plaint "A" schedule property in pursuance of the agreement of sale executed in his favour by the first respondent.
8. Hence, the revision petition is allowed and so I.A. No. 243 of 2006 in O.S. No. 24 of 2006 on the file of the Senior Civil Judge, Jangaon, Warangal District filed by the petitioner stands allowed. Parties are directed to bear their own costs.