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2004 DIGILAW 419 (AP)

G. Loretta v. Gunkula Rathanamma (died)

2004-04-02

G.ROHINI

body2004
G. ROHINI, J. ( 1 ) THIS civil revision petition is filed against the order dated 28-7-2003 in ia No. 198 of 2003 in OS No. 16 of 2000 on the file of the Court of the Senior Civil judge, Bodhan, Nizambad District. ( 2 ) THE plaintiffs who are the petitioners in IA No. 198 of 2003 are the revision petitioners. The suit was filed seeking a decree for partition and separate possession of half share in the suit schedule property. While the evidence of the plaintiffs was being recorded. IA No. 198 of 2003 under order 6, Rule 17 of the Code of Civil procedure (for short, the Code ) was filed seeking amendment of the plaint by adding a further relief of cancellation of certain registered sale deeds. In the affidavit filed in support of the said petition, it is stated that the suit was filed for partition of the ancestral joint family properties of the late husband of the 1st plaintiff. However during the cross-examination of PW1, the defendant suggested that some of the suit properties were already alienated and in view of the said suggestion, it is necessary to amend the plaint by adding further prayer for cancellation of the said sale deeds. The said application was opposed by the second defendant by filing a counter-affidavit contending inter alia that by virtue of the proposed amendment, a new cause of action would arise for determination and therefore the same is impermissible. It is also stated that the relief sought by way of amendment is barred by limitation. The court below after hearing both sides, by order dated 28-7-2003 dismissed IA No. 198 of 2003 observing that the plaintiff having filed the suit for partition claiming a share in the suit schedule properties, failed to exercise due diligence to ascertain true facts and the proposed amendment for cancellation of sale deeds executed long back about 22 years ago cannot be permitted after commencement of the trial. Aggrieved by the same, the plaintiffs have come up with the present civil revision petition. ( 3 ) I have heard the learned Counsel for the petitioners Sri V. Ravi Kiran Rao and the learned Counsel for the respondents sri P. N. A. Christian. ( 4 ) IT is relevant to note that the suit is filed seeking a decree for partition. ( 3 ) I have heard the learned Counsel for the petitioners Sri V. Ravi Kiran Rao and the learned Counsel for the respondents sri P. N. A. Christian. ( 4 ) IT is relevant to note that the suit is filed seeking a decree for partition. The specific case of the plaintiffs is that the husband of the first plaintiff who is the father of the Plaintiffs 2 to 4 was taken in adoption by the first defendant and her late husband. The 2nd defendant is the son of the 1st defendant who was brought up along with the husband of the 1st plaintiff. After the death of the husband of the 1st defendant, all the ancestral properties were devolved on the defendants being the widow and the son and also the husband of the 1st plaintiff who was the adopted son. The first defendant, being kartha, was supervising and managing the suit schedule properties which were ancestral and agricultural lands after the death of her husband. However subsequently certain misunderstandings arose and when the plaintiffs demanded for partition, the same was refused by the defendants. ( 5 ) IN the written statement filed, the second defendant has categorically denied the alleged adoption of the husband of the first plaintiff. It is also pointed out that the first defendant died long back in the year 1992. In the counter-affidavit filed opposing the application for amendment of plaint, it is stated that some of the suit schedule properties were already sold under registered Sale Deeds in the year 1981 itself, by virtue of which the third parties were put in possession. ( 6 ) ON a careful consideration of the entire material on record, I do not find any infirmity in the order of the Court below in having declined to allow the proposed amendment. The sale transactions by way of Registered documents took place long prior to the filing of the suit. However the suit was filed claiming that the defendants are in possession and enjoyment of the suit schedule properties and thus seeking a decree for partition and separate possession of one-half share. The relief now sought by way of amendment for cancellation of Registered Sale Deeds in favour of third parties is based on entirely different set of facts which arises out of a different cause of action. Undoubtedly it alters the nature of the suit. The relief now sought by way of amendment for cancellation of Registered Sale Deeds in favour of third parties is based on entirely different set of facts which arises out of a different cause of action. Undoubtedly it alters the nature of the suit. At any rate, having regard to the facts and circumstances of the case, I am unable to hold that the proposed amendment is necessary for the purpose of determining the real questions in controversy between the parties. Moreover since the trial has already commenced, as per the proviso to Order 6, Rule 17 of CPC as it stands after Amendment Act No. 22 of 2002, no such amendment can be allowed unless it is established that in spite of due diligence the petitioners could not have raised the said plea earlier. It is true that the 2nd defendant in his written statement did not disclose the sales in favour of the third parties, but on that ground it is not open to the petitioners to plead ignorance of the title and possession of the suit properties. Hence as rightly held by the court below this is not a fit matter where the amendment requires to be allowed even after the commencement of trial. Viewed from any angle, the proposed amendment is not permissible and therefore interference of this Court is not warranted. ( 7 ) ACCORDINGLY, this civil revision petition is dismissed. No costs.