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2002 DIGILAW 625 (AP)

Kamatam Sangalappa v. Kapadam Sangalappa

2002-05-08

A.GOPAL REDDY

body2002
A. GOPAL REDDY, J. ( 1 ) THIS revision is directed against an order dated 1-6-2002 made in E. A. No. 688/2001 in e. P. No. 59/2000 in O. S. No. 15/33 on the file of the Principal Senior Civil Judge, ananthapur, wherein the application filed by the petitioners under Order 6 Rule 17 of c. P. C. , to add the words "the elders of yeerayapalli temple" and delete the word "respondent" was dismissed. ( 2 ) THE brief facts, which are necessary to dispose of this revision, are as under: the nature of the entire dispute is relating to the Sangalappa deity in between the two villages namely, Gangalakunta and yerraipalli and it is in between Kapadam people and Kamatam people. As per the terms of the compromise, Kamatham muddanna and others (plaintiffs) of yerrayapalli village have agreed to pay rs. 2,000/- to the defendants, that is kapadam people, who are the residents of gangalakunta village. AS per the terms of compromise decree, the deity along with the articles mentioned therein should be exchanged in between the parties within the stipulated period mentioned therein. Further, as per the compromise decree, the deity and other armaments (sic. ornaments) have to be kept in the custody of yerrayapalli people and Gangalakuntapalli people in the respective temples for a period of six months in every year. The main E. P. is filed because of the disputes arose between the judgment-debtors in whose custody the property is kept, failed to hand over the custody of the property mentioned in the schedule even after the expiry of the stipulated period, i. e. , 31-1-19. 93 and therefore, the same has to be ordered to be returned or to be seized by the process of court. 93 and therefore, the same has to be ordered to be returned or to be seized by the process of court. ( 3 ) HOWEVER, the respondents filed counter denying the allegations of the petitioners stating that there was specific plea in the counter filed by the petitioners that they have developed the temple and handed over the articles and that the respondents are elders of the temple and that the respondents got prepared the deities and perform poojas and that they were conducting poojas and jatharas every year, and therefore, the word respondent cannot be treated as typographical mistake loosely used and that the proposed amendment will change the nature of the entire defence of the judgment-debtors and that the proposed amendment is only invented to get over the admissions and therefore, the amendment cannot be allowed as it will introduce a new case and total change of version pleaded. ( 4 ) THE contention of the petitioners is that they have specifically pleaded in the counter that the decree was never acted upon and that the representatives, who are the plaintiffs in O. S. No. 15/33, have handed over all the articles in their possession to the elders of Gangulakunta temple and that they have refused to hand over the properties of Yerrayapalli Temple, since the elders of the temple of Yerrayapalli have not paid the amount of Rs. 2,000. 00 as per the decree and that they are nothing to do with the affairs of the temple and that they are not personally responsible either for the custody of the articles or for implementing the decree, but by typographical mistake instead of using the words the elders of our temple the word respondent was loosely used and the mistake is not intentional and further it will not change the defence taken by them, and therefore, they may be permitted to amend the counter. ( 5 ) THE Court below after going through the entire material on record dismissed the petition. The Court below in para 8 of its judgment observed as under:". . . . . THAT the evidence of both parties was already completed long prior to filing of this application. ( 5 ) THE Court below after going through the entire material on record dismissed the petition. The Court below in para 8 of its judgment observed as under:". . . . . THAT the evidence of both parties was already completed long prior to filing of this application. The word respondents used in the counter was already confronted with the witnesses and therefore the parties know the significance of the word used in the counter and thereby they have come forward with this application on hand to plead that the respondents are not responsible for the events and that the elders alone are responsible and therefore the proposed amendment goes to a long way and thereby the entire defence will be changed. Any amendment that is proposed, which changes the defence shall not be permitted and therefore I do not see any merits in this application. " ( 6 ) THE learned counsel for the petitioners placed reliance on the judgment of the supreme Court in Estralla Rubber v. Dass estate (P) Ltd. wherein the Apex Court held that the amendment of pleadings under order 6 Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings. ( 7 ) IN view of the above circumstances and also in view of the fact that the petitioners were not parties to the judgment and decree in O. S. No. 15/33, the question of their handing over the articles as per the decree does not arise. Hence, in my opinion, the lower Court has committed an error in dismissing the E. A. filed by the petitioners herein. ( 8 ) ACCORDINGLY, this revision is allowed, and the lower Court has to decide the effect of Section 42 of the A. P. Charitable and hindu Religious Institutions and endowments Act, 1987 (Act 30/87) while disposing of the E. P. It is also directed to decide whether the E. P. can be maintainable for due execution of the decree on enacting act 30/87 as a preliminary issue. No order as to costs.