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2001 DIGILAW 740 (AP)

Koka Venkateswarulu v. Ankala Kanakamma

2001-07-19

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THIS Civil Revision Petition is filed against the order dated 16-11-1990 made in la. No. 452/89 in A. S. No. 35/88 on the file of I Additional District Judge, Krishna at machilipatnam. ( 2 ) THE unsuccessful-respondent in LA. No. 452/89 in A. S. No. 35/88 is the Revision petitioner. The Revision Petitioner had filed the present Revision aggrieved by the order of the Court below allowing an application for amendment. ( 3 ) THE facts in brief are that the Revision petitioner is none other than the son-in-law of the respondent who is an old lady and she filed the suit for the relief of permanent injunction relating to immovable property on the ground that the Revision Petitioner had caused some obstruction. The defence taken by the Revision Petitioner was that though the property stands in the name of the respondent-plaintiff, consideration was paid by him and he was in possession of the property in his own right. The suit was no doubt, dismissed. But as far as the ownership of the respondent-plaintiff is concerned, it appears, it was upheld. Aggrieved by the said judgment, the respondent-plaintiff had filed A. S. No. 35/88 on the file of I Additional District judge, Krishna at Machilipatnam and also filed the present application LA. No. 452/89 seeking amendment of the plaint praying for the alternative relief of possession. The application was stoutly resisted by the opposite party, but however the Court below after considering all the facts and circumstances had allowed the said amendment application LA. No. 452/89 and aggrieved by the said order, the present revision is filed. ( 4 ) SRI Anjaneya Sharma, the learned counsel representing the Revision petitioner had strenuously and emphatically contended that the order of the Court below is totally an unjustified one and cannot be sustained for the reason that it totally changes the nature of the suit and also the cause of action, and the relief prayed for under the guise of alternative prayer is only to get over the judgment made by the trial Court and such a course is impermissible in law. The learned Counsel further had contended that the proposed amendment now is without a pleading and without any foundation and such amendment cannot be allowed. The learned Counsel further had contended that the proposed amendment now is without a pleading and without any foundation and such amendment cannot be allowed. The learned counsel also had drawn my attention to para 5 of the plaint and several other allegations and contended that in the facts and circumstances of the case, the Court below had totally erred in allowing the amendment permitting the respondent-plaintiff to amend the plaint seeking the relief of possession also in the alternative to the original relief of permanent injunction prayed by her in the suit. The learned counsel also placed reliance on several decisions in support of elaborate submissions made by him in this regard. ( 5 ) SRI C. Ramachander Raju, the learned counsel appearing for the respondent- plaintiff in the suit and the appellant in the appeal A. S. No. 35/88 had strenuously contended that when an application under order 6 Rule 17 CPC was allowed by the court below exercising discretion, while exercising revisional jurisdiction such an order need not be interfered with. Further the learned Counsel contended that since appeal is continuation of suit, the amendment of pleading can be allowed even at the appellate stage. The learned counsel also had stated that the present amendment is not a new case altogether and it is not inconsistent with the original pleading, but the present amendment is only seeking an alternative relief of possession apart from the main relief of permanent injunction. It was also contended that in the event of the appeal being dismissed, the respondent-plaintiff again will be driven to another litigation and she is already an old lady and the court below with a view to avoid multiplicity of proceedings in the facts and circumstances of the case thought it fit to allow the amendment application and hence there is no jurisdictional error involved in the matter warranting any interference under Section 115 CPC. The learned Counsel also had emphatically contended that the test is to see whether the respondent-plaintiff could have sought these two reliefs even when the suit was instituted and since such alternative reliefs are permissible in law, it cannot be said that allowing the amendment application by the court below is not sustainable in law. The learned Counsel also had supported the order of the Court below by taking me through the relevant portions of the order. The learned Counsel also had supported the order of the Court below by taking me through the relevant portions of the order. ( 6 ) THE amendment application seeking the alternative relief of possession in the main suit is filed at the appellate stage by the respondent-plaintiff. Section 107 (2) cpc reads as follows:-"subject as aforesaid, the appellant court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. "order 6 Rule 17 CPC reads as follows:-"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. " ( 7 ) IT is settled law that normally amendment of pleadings are to be liberally allowed except they fall under certain of the exceptional circumstances under which amendment of pleadings can be disallowed. In Jagadish and others v. Har Sarup it was held that the amendment of plaint within the meaning of Order 6 Rule 17 C. P. C. includes amendment even at the appellate stage. This proposition is not disputed even by the learned Counsel representing the Revision petitioner. However, the learned Counsel for the Revision Petitioner placing reliance on Smt. Mohabubunnissa Begum v. Brij mohan, Jagajeevan Panigrahi and others v. Gelala Somayya and Mohammad Jaffer Ali v. S. Rajeswara Rao and others, had contended that the proposed amendment changes the nature of the suit and also cause of action and further if such an amendment is allowed, it will also cause prejudice to the revision Petitioner and hence the Court below had exercised its jurisdiction illegally while allowing the application for amendment and hence the impugned order is liable to be set aside. ( 8 ) IT is settled law that while deciding an application for amendment, the merits of the matter need not be gone into since ultimately a party seeking amendment may succeed or may not succeed in the litigation. Normally, an amendment of pleading has to be allowed even in a case where if the amendment is disallowed, it may result in multiplicity of proceedings. Normally, an amendment of pleading has to be allowed even in a case where if the amendment is disallowed, it may result in multiplicity of proceedings. It is no doubt true that care has to be taken by the Courts while allowing amendment applications to see that the legal rights accrued to the opposite parties are not disturbed normally by allowing such amendment applications. But at the same time, when on the facts and circumstances it is desirable to allow an amendment application to avoid multiplicity of proceedings, and if the allowing of amendment application will not cause prejudice to the opposite party or will not take away any accrued rights as such, such amendments may have to be liberally allowed. ( 9 ) THE Court below had discussed the matter at length and exercised the judicial discretion in allowing the application permitting to amend the pleading relating to the alternative relief of possession. In the facts and circumstances of the case stated supra, I do not think it is a fit case where the power under Section 115 C. P. C. can be exercised to disturb the order passed by the court below since in my opinion it does not cause any prejudice to the opposite party or it does not take away any accrued legal rights as such. ( 10 ) FOR the foregoing reasons, the Civil revision Petition is devoid of merits and accordingly it is dismissed, but in the facts and circumstances of the case, each party to bear their own costs.