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2004 DIGILAW 75 (AP)

Choppa Rambabu v. Choppa Demudamma

2004-01-27

P.S.NARAYANA

body2004
K. SEETHARAM., J. ( 1 ) LEARNED Counsel representing the petitioners and Sri Subrahmanyam, learned Counsel representing the respondents. ( 2 ) THE petitioners/plaintiffs filed this revision against an order made in LA. No. 269 of 2003 in O. S. No. 72 of 2002 on the file of the Junior Civil Judge, Kottavalasa, dated 30. 6. 2003. The petitioners/plaintiffs filed LA. No. 269 of 2003 in O. S. No. 72of 2002 on the file of the Junior Civil Judge, Kottavalasa, under Order 6, Rule 17 of the Code of Civil procedure (in short referred to as code hereinafter) praying for amendment of the relief portion for recovery of possession of mesne profits. The said application was dismissed observing that the petitioners had filed the said application only to cover the latches and it would amount to allowing the parties to multiply the proceedings. Aggrieved by the same, the present civil revision petition is preferred. ( 3 ) SRI Seetharam, learned Counsel representing the revision petitioners at the outset had brought to the notice of this court an order made in C. R. P. No. 3295 of 2003 wherein, the similar relief prayed for in an application for amendment of the pleading in a similar suit filed by the self same petitioners/plaintiffs was ultimately permitted by allowing the civil revision petition. ( 4 ) THE learned Counsel in all fairness submitted that the learned Counsel for the respondents was not heard at that stage, but, however, would maintain that it does not alter the situation in any way. The learned counsel also submitted that the trial had not yet commenced and it being a pre-trial amendment, the same should have been allowed. The learned Counsel also submitted that the reasons recorded by the learned judge that it would create multiplicity of proceedings cannot be sustained and on the other hand, if amendment application is dismissed, it would definitely result in multiplicity of proceedings i. e. , driving the petitioners/plaintiffs to yet another suit. Hence, viewed from any angle, the order cannot be sustained. ( 5 ) ON the contrary, the learned Counsel for the respondents Sri Subrahmanyam submitted that this being a discretionary order, the discretion, which was exercised by the Trial Judge in making such order disturbed in the present revision. Hence, viewed from any angle, the order cannot be sustained. ( 5 ) ON the contrary, the learned Counsel for the respondents Sri Subrahmanyam submitted that this being a discretionary order, the discretion, which was exercised by the Trial Judge in making such order disturbed in the present revision. The learned counsel had also drawn the attention of this court to the proviso of Order 6, Rule 17 of the Code and had contended that since there is absence of due diligence, the learned judge had arrived at the correct conclusion by negativing the relief prayed for. ( 6 ) HEARD both the learned Counsel. ( 7 ) IT is not in controversy that the suit in O. S. No. 72 of 2002 was instituted after amending the Code. It is also not in controversy that the proviso under Order 6, rule 17 of the Code is to be considered while deciding the present application. A specific ground was raised that the trial has not yet commenced and at that stage, the said application was moved praying for recovery of possession and mesne profits. The petitioners filed OS No. 72 2002 on the file of the junior Civil Judge, Kottavalasa for the relief of declaration and for consequential relief of permanent injunction and initially in LA. No. 308 of 2002 in O. S no. 72 of 2002 interim injunction was granted, but, subsequent thereto, the said application was dismissed. It was also stated that after the dismissal of the said application, with the active support of the political influence, the respondents had illegally trespassed into the petition schedule property. Several other allegations also had been made in the affidavit filed in support of the application. Ultimately, the relief of amending the plaint for the reliefs specified supra had been prayed for. The said application was opposed by denying the forcible dispossession by stating that if the proposed amendment is allowed, it would change the nature of the suit and would constitute a different cause of action. The learned Judge had dismissed the application on the ground of latches and also on the ground that it would result in multiplicity of proceedings. Thus the approach adopted by the learned Judge in my considered opinion cannot be sustained. The learned Judge had dismissed the application on the ground of latches and also on the ground that it would result in multiplicity of proceedings. Thus the approach adopted by the learned Judge in my considered opinion cannot be sustained. It is needless to say that the merits and demerits of the case need not be gone into at the stage of considering the amendment application. The proviso to Order 6, Rule 17 of the Code reads as hereunder:"no application for amendments shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. " ( 8 ) IT is not in controversy at present that the trial had not been commenced. In such a case, the proviso is not applicable and hence the contention raised by the learned Counsel for the respondents that there are no allegations in relation to due diligence and hence, the application is bound to fail , cannot be sustained. Hence, viewed from any angle, especially to avoid multiplicity of proceedings, it would be just to allow the application of amendment of pleadings as prayed for by the petitioner/plaintiffs. ( 9 ) ACCORDINGLY, the petitioners/plaintiffs are bound to succeed. ( 10 ) THE civil revision petition is hereby allowed. No costs.