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2003 DIGILAW 1376 (AP)

Bogirouthu Suryakantham v. Kandhi Sanyasinaidu

2003-11-07

P.S.NARAYANA

body2003
P. S. NARAYANA, J. ( 1 ) HEARD Sri O. Manohar reddy, the learned Counsel representing the petitioners and Sri P. R. Prasad, the learned counsel representing the respondents. ( 2 ) THE civil revision petition is filed as against an order made in LA. No. 1705 of 2003 in O. S. No. 155 of 1996 on the file of the Additional District Judge, Vizianagaram. ( 3 ) THE plaintiffs in the above said suit moved an application before the Court below in LA. No. 1705 of 2003 under Order 6, rule 17 read with Section 151 of the Code of Civil Procedure read with Rule 28 of civil Rules of Practice praying to permit them to amend the plaint by inserting para IIl (g) (i ). The learned Judge after recording the reasons had ultimately dismissed the said application. Assailing the same, the present civil revision petition is preferred. ( 4 ) SRI O. Manohar Reddy, the learned Counsel for the petitioners submitted that the main ground on the basis of which the learned Additional District Judge, vizianagaram had dismissed the application is the decision of this Court in Kondagani rajeshwar Rao v Gandu Sammaiah, 2003 (3) ALD 97 = 2003 (1) An. WR 616. The learned Counsel further submitted that the said decision has no application to the facts of this case since the suit is of the year 1996 and hence in view of Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 (Act 22 of 2002), the amended provision of Order 6, Rule 17 c. P. C. cannot be made applicable to a suit instituted in the year 1996. The learned counsel further submitted that the plea now raised is only additional plea and not totally an inconsistent plea and in fact this amendment is necessitated in view of the order made by this Court in C. R. P. No. 3586 of 2000 relating to the admissibility of a document dated 5-5-1985. The learned counsel further submitted that the plea now raised is only additional plea and not totally an inconsistent plea and in fact this amendment is necessitated in view of the order made by this Court in C. R. P. No. 3586 of 2000 relating to the admissibility of a document dated 5-5-1985. ( 5 ) PER contra Sri P. R. Prasad, the learned Counsel for the respondents, with all vehemence had contended that the suit was instituted in the year 1996 and the written statement was filed on 19-4-1997 where, in para 2, a specific plea was taken relating to the aspect that there was family arrangement even in the year 1985 and no rejoinder was filed and at the stage of examination of DW1 this application was thought of by the revision petitioners- plaintiffs. The learned Counsel also had taken me through the respective pleadings of the parties and had contended that the specific stand taken by the revision petitioners- plaintiffs in the plaint is that there was no partition at all and now the petitioners- plaintiffs intend to introduce a new case stating that the family arrangement dated 5-5-1985 was arrived at by committing fraud, coercion and undue influence at the instance of the first defendant; this being totally a new case, the same is impermissible in law. ( 6 ) THE learned Counsel, no doubt, in all fairness submitted that as far as the view expressed by the learned Judge that the decision in Kondagani s case (supra) is applicable to the facts of this case may not be correct in view of the clear legal position. ( 7 ) HEARD both the Counsel. ( 8 ) AS can be seen from the impugned order, the learned Judge placed reliance on a decision in Kondagani s case (supra) and had arrived at a conclusion that due diligence is not there in the present case and in view of the amended provision of order 6 Rule 17 of the Code of Civil procedure as it stands as on today on the statute book, the amendment application is liable to be dismissed. Evidently, the learned Judge had placed reliance on the proviso introduced to Order 6 Rule 17 of c. P. C. by the Amending Act, 2002 (Act 22 of 2002 ). Section 16 of the said Act deals with Repeal and Savings. Evidently, the learned Judge had placed reliance on the proviso introduced to Order 6 Rule 17 of c. P. C. by the Amending Act, 2002 (Act 22 of 2002 ). Section 16 of the said Act deals with Repeal and Savings. Sub-section 2 (b) specifically says that the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) and Section 7 of this Act. It is no doubt true that relying upon the amended provision, the learned Judge held in Kondagani s case (supra) that when the proviso comes into operation an amendment application not satisfying the proviso cannot be allowed. Inasmuch as the suit is of the year 1996, it is needless to say that the said proviso is not applicable to the present case. I have no hesitation in holding that the view expressed by the learned Judge in this regard cannot be sustained. ( 9 ) THE next question which had been seriously canvassed is that though at the earliest point of time specific stand was taken relating to the family settlement even in the year 1985, no rejoinder was filed and at a belated stage an inconsistent plea is being taken that the document in question was brought into existence under fraud, coercion and undue influence. This is totally a new case, according to the Counsel representing the respondents. ( 10 ) I have given my anxious consideration to the respective pleadings of the parties. It is no doubt true that though specific stand was taken even in the year 1997, no rejoinder was filed. But that itself cannot be a ground, since on the mere ground of delay, amendment of pleadings cannot be refused. Coming to the question of inconsistency, it is a suit for partition based on the pleading that there was no partition at all. But that itself cannot be a ground, since on the mere ground of delay, amendment of pleadings cannot be refused. Coming to the question of inconsistency, it is a suit for partition based on the pleading that there was no partition at all. While DW1 was examined, during the course of evidence, when the document dated 5-5-1985 was sought to be marked, an objection was taken and the document was held to be inadmissible by the Court of first instance and aggrieved by the same c. R. P. No. 3586 of 2000 was preferred and the same was allowed by this Court, evidently as it is clear from the record. In the light of these circumstances, the petitioners-plaintiffs had filed the present application praying for amendment of the pleadings. As already stated by me, this is a suit for partition and the respective pleadings of the parties originally appear to be that there was no partition at all and in fact there was partition. In the light of the introduction of the document which was held to be inadmissible initially and ultimately held to be admissible by virtue of an order made in the civil revision petition as aforesaid, the present amendment was thought of as an additional plea. The merits and demerits of the case of the plaintiffs in relation to the said document and the defence taken need not be seriously gone into at this stage and this is a matter to be ultimately decided in the main suit. Hence on the ground that it is inconsistent plea, I do not think that the petitioners-plaintiffs can be prevented from raising such a plea by way of amendment. At best it would be an additional plea. It is no doubt true that this amendment application was thought of at a very belated stage. However, in view of the fact that there is inordinate delay, it is needless to say that the opposite party should be compensated with suitable terms. ( 11 ) FOR the reasons recorded above, the impugned order is hereby set aside on condition of the petitioners-plaintiffs paying rs. 1,500/- to the Counsel for the respondents-defendants within a period of two weeks from today, in default, the impugned order stands. No order as to costs.