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2011 DIGILAW 343 (AP)

Yellapu Damayanthi v. Polamarasetti Hemalatha

2011-04-15

R.KANTHA RAO

body2011
Judgment The revision petitioners are the defendants in O.S.No. 97 of 2007 on the file of the Jr. Civil Judge, Kothavalasa, Vizianagaram District. They filed the present revision against the order dt. 3.5.2010 in I.A.No. 505 of 2009, whereby the learned Jr. Civil Judge dismissed the said I.A. filed for amendment of the written statement. With the consent of both the counsel, the revision petition is heard and disposed of at the stage of admission. The plaintiff filed the suit O.S.No. 97 of 2007 for simple injunction against the defendants restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. The defendants apart from contesting the suit by filing written statement, also filed counter claim stating that the suit schedule property belong to them and the plaintiff has no right over the same. Trial of the suit was commenced and some witnesses have been examined on behalf of the plaintiff and at that stage, the defendants filed I.A.No. 505 of 2009 seeking to amend the written statement stating that the vendor of the plaintiff by name Adari Shanthakumari who is said to be the legal heir of Yellapu Venkayamma is a converted Christian and therefore she is not entitled to succeed to the property by virtue of Section 2 (c) of the Hindu Succession Act, 1956 and therefore no right accrues to her after the death of her mother late Venkayamma and as such they want to introduce the said plea by way of amendment to the written statement to the effect that the vendor of the plaintiff has no title over the suit schedule property. The amendment petition was opposed by the plaintiff mainly on the ground that both the parties are closely related to each other and they are very much aware of the religion professed by late Venkayamma and Shanthakumari and that the petition filed by them is misconceived. The amendment petition was opposed by the plaintiff mainly on the ground that both the parties are closely related to each other and they are very much aware of the religion professed by late Venkayamma and Shanthakumari and that the petition filed by them is misconceived. Further contention of the plaintiff before the trial court was that Yellapu Venkayamma filed O.S.No. 39 of 1980 on the file of the Subordinate Judge, Vizianagaram for declaration of title and recovery of possession of certain properties including the plaint schedule property and in the said suit the predecessors-in-title of the revision petitioners did not raise the contention that Shanthakumari who is said to be the legal heir of Venkayamma is a converted Christian and that four witnesses have been examined on behalf of the plaintiff in the present suit and none of them have stated that Shanthakumari is a converted Christian and therefore she is not entitled to succeed to the properties of Venkayamma who is a Hindu. It was also further contended that in A.S.No. 262 of 1992, which was preferred against the Judgment and decree in O.S.No. 39 of 1980 on the file of the Subordinate Judge, Vizianagaram, it was declared that Shanthakumari is the sole surviving legal heir of late Vankayamma and the said finding has become final and therefore the petitioners are estopped from taking the same plea again in the present suit. The proviso to order VI Rule 17 C.P.C reads as under: Provided that no application for amendment 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. In the instant case, the trial in the suit has already begun and four witnesses have been examined on behalf of the plaintiff. There is no dispute about the fact that both the parties are closely related to each other and they know the religion they professed. Further, there is no dispute about the fact that the plea that Shanthakumari is a converted Christian was available to the revision petitioners in O.S.No. 39 of 1990 and also in A.S.No. 362 of 1998 but they have not raised such plea. Further, there is no dispute about the fact that the plea that Shanthakumari is a converted Christian was available to the revision petitioners in O.S.No. 39 of 1990 and also in A.S.No. 362 of 1998 but they have not raised such plea. As per the proviso to order VI Rule 17 CPC, the application for amendment can be allowed only if it is shown that the party who makes amendment application could not raise the issue in spite of due diligence. In the instant case, the fact basing on which they proposed the amendment must be within the knowledge of the revision petitioners and admittedly they have not raised such plea in the earlier proceedings. Thus, it is not the case where in spite of exercising due diligence, the revision petitioners could not take steps for filing amendment petition on the earlier occasion. The plea is barred by constructive res judicata under Explanation IV to Section 11 CPC. Further, this court is of the view that if such amendment is allowed it changes the nature of the suit and also enlarges its scope. Allowing such amendment after four witnesses on behalf of the plaintiff have been examined would certainly amount to abuse of process of law. There are no merits in the amendment petition and the learned trial court has rightly dismissed the same. For the foregoing reasons the order passed by the trial court in I.A.No. 505 of 2009 in O.S.No. 97 of 2007 is confirmed.The C.R.P. is dismissed at the stage of admission.There shall be no order as to costs.