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2013 DIGILAW 684 (AP)

Ayesha Rizwana v. Mushtaq Ahmed

2013-08-23

G.ROHINI

body2013
JUDGMENT : The revision petitioner is the plaintiff in O.S. 4163 of 2010 on the file of the Court of the III Junior Civil Judge, City Civil Court, Hyderabad. The respondent herein is the defendant. The suit is filed for eviction and recovery of possession of the suit schedule property. By the order under revision I.A. No.951 of 2012 filed by the plaintiff under Order VI Rule 17 of C.P.C. seeking amendment of the boundaries of the suit schedule property mentioned in the plaint was dismissed by the Court below. Hence, this Revision Petition by the plaintiff. It is vehemently contended by the learned Counsel for the petitioner that the suit boundaries were wrongly mentioned in the plaint only on account of a mistake on the part of the counsel for the plaintiff and by rectifying the said mistake no prejudice would be caused to the defendant and therefore the Court below committed an error in dismissing the application. In support of his submission the learned Counsel has relied upon a decision of the Supreme Court in UshaDevi Vs. Rijwan Ahmad and others( AIR 2008 SC 1147 ). On the other hand it is contended by the learned Counsel for the respondent that since the trial has already commenced, the Court below is justified in dismissing the application for amendment. Admittedly this is a case where the trial of the suit has commenced on 24.09.2012 and the plaintiff got herself examined as P.W.1. After that P.W.2 was also examined on 21.12.2012 and thereafter at her instance the matter underwent several adjournments and at that stage she sought amendment of plaint stating that the Northern boundary of the suit property was wrongly mentioned in the plaint schedule. The defendant opposed the application for amendment contending that in the written statement itself the boundary mentioned in the plaint schedule was disputed and inspite of the same the plaintiff failed to take any steps. The Court below dismissed the application for amendment holding that even in the cross examination the plaintiff categorically admitted that the door number and the boundaries of the suit property were correctly mentioned in the plaint and therefore if the amendment is permitted at such a belated stage it would be an abuse of the process of the Court. The Court has also observed that the suit is of the year 2010 and it is an identified matter. The Court has also observed that the suit is of the year 2010 and it is an identified matter. Having carefully gone through the material available on record, I am of the opinion that in the facts and circumstances of the case the Court below is justified in declining to permit the amendment of the plaint. As noticed above the application was filed after commencement of trial without giving any reasons for her failure to seek the proposed amendment before commencement of trial. That being so the proviso to Order VI Rule 17 of C.P.C. is squarely attracted. There can be no dispute about the ratio laid down in Usha Devi’s case. However, it is a case where in the facts and circumstances of the said case it was held that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create complications at the stage of execution. The ratio laid down in the said decision in the peculiar facts and circumstances of the said case is clearly distinguishable on facts and cannot be applied to the case on hand. For the aforesaid reasons the discretion exercised by the Court below in not permitting the plaintiff’s request for amendment of plaint cannot be held to be illegal or perverse. Hence the interference by this Court is not warranted and the revision petition is accordingly dismissed. No costs.