Research › Search › Judgment

Andhra High Court · body

2014 DIGILAW 172 (AP)

Pattan Babu Khan v. Tummala Seshi Reddy

2014-02-05

M.SEETHARAMA MURTI

body2014
ORDER M. Seetharama Murti, J. 1. This civil revision petition under Article 227 of the Constitution of India is filed by the defendant assailing the orders dated 10.9.2012 of the learned Principal Senior Civil Judge, Guntur, made in IA No. 1388 of 2012 in OS No. 172 of 2011 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure (for short, 'the Code') requesting to accord permission to amend the schedule annexed to the plaint in regard to the measurements and the extent of the plaint schedule property. The facts, which are necessary for consideration, in brief, are as follows: "The plaintiff had filed the suit against the sole defendant for recovery of possession of the plaint schedule property after evicting the defendant therefrom and for recovery of arrears of rent and profits. The defendant had filed a written statement resisting the suit, but admitting the jural relationship of landlord and tenant and had inter alia contended that the rent payable by him to the plaintiff is Rs. 1,300/- per month. While the trial in the suit was in progress, the plaintiff had filed the interlocutory application seeking amendment of the schedule of the plaint in regard to the measurements and the extent of the property. In support of the said request for the amendment of the schedule of the plaint, the plaintiff had urged the following grounds: 'The plaintiff is the absolute owner of the plaint schedule property. The plaintiff had purchased the property in an extent of 453 Square yards viz., vacant site under registered sale deed dated 2.5.1993 from Pattan Khasim Peera. After such purchase, the plaintiff had constructed four shops in approximately 175 Square yards of site out of the total extent of 453 Square yards and each shop property is of an extent of 60 Square yards (10" length x 30" width). One such shop was leased out to the defendant. But in the plaint schedule the entire extent of property i.e., 453 Square yards was shown. At the time of cross-examination of the plaintiff, the plaintiff had come to know about the fact that the extent of property was wrongly mentioned in the schedule of the plaint. One such shop was leased out to the defendant. But in the plaint schedule the entire extent of property i.e., 453 Square yards was shown. At the time of cross-examination of the plaintiff, the plaintiff had come to know about the fact that the extent of property was wrongly mentioned in the schedule of the plaint. Therefore, the plaintiff filed the petition for amendment of the schedule to delete the extent 453 Square yards and substitute in its place the extent of 60 Square yards (10" length x 30" width) and consequently amend the plaint schedule." The defendant had filed a counter inter alia stating as follows: "The plaintiff did not assign valid and cogent reasons in the affidavit filed in support of the petition. The plaintiff had got issued quit notice prior to the suit and in the said notice also, the schedule was shown as originally mentioned in the plaint. After the cross-examination was done on behalf of the defendant, and after coming to know of the lacuna, the plaintiff had come forward with the petition for amendment of the plaint schedule. Therefore, if the amendment is permitted the same adversely affects the defendant and, hence, the petition is not maintainable and is liable to be dismissed.' The petition for amendment filed by the plaintiff was allowed by the Court below. Therefore, the aggrieved defendant had filed this civil revision petition." 2. I have heard the submissions of the learned Counsel for both the sides. 3. The learned Counsel for the revision petitioner reiterated the contentions which are mentioned in the counter of the defendant/tenant. The main thrust of the argument is this: 'It was brought out in the cross-examination of the plaintiff that the measurements and the extent of the schedule property are not correctly given in the plaint schedule and also in the quit notice. Thereafter, to get over the lacuna, the plaintiff had come forward with a belated application seeking amendment of the schedule of the plaint. The proposed amendment changes the cause of action and adversely affects the defendant and causes prejudice to him. Thereafter, to get over the lacuna, the plaintiff had come forward with a belated application seeking amendment of the schedule of the plaint. The proposed amendment changes the cause of action and adversely affects the defendant and causes prejudice to him. In view of the proviso to Order VI Rule 17 of the Code, the plaintiff who is not diligent is not entitled to seek amendment of the plaint since the trial of the suit had commenced.' On the other hand, the learned Counsel for the plaintiff/respondent had submitted that admittedly the defendant is a tenant in only one shop and that it is not the case of the defendant that he is the tenant of the entire extent of the property and that for the ultimate cause of justice and to avoid further litigation and for the purpose of determining the real questions in controversy between the parties it is just and necessary to permit the amendment and that the proposed amendment which was allowed by the trial Court does not change the cause of action or the nature of the suit. 4. I have perused the material record and I have bestowed my attention to the facts and submissions. 5. Now the points for determination are - 'Whether the plaintiff is not entitled under facts and in law to seek the amendment of the schedule of the plaint as prayed for? And, if so, whether the impugned order is liable to be set aside? 6(a). The case of the plaintiff is that the plaintiff having purchased 453 Square yards of vacant site had constructed four shops in an extent of 175 Square yards out of the said total extent of 453 Square yards and that the defendant is admittedly a tenant in one of the four shop rooms but not in the entire extent of 453 Square yards of vacant site purchased by the plaintiff. The said contention that the defendant is a tenant of one shop room but not of the entire extent of 453 Square yards of the site is not in dispute. Further, the plaintiff is only seeking amendment of extent of the schedule property; but, he is not seeking amendment of the boundaries of the schedule property. The said contention that the defendant is a tenant of one shop room but not of the entire extent of 453 Square yards of the site is not in dispute. Further, the plaintiff is only seeking amendment of extent of the schedule property; but, he is not seeking amendment of the boundaries of the schedule property. Therefore, the extent of 453 Square yards mentioned in the plaint schedule is obviously a mistake and according to the plaintiff, the said mistake was realized when the said aspect was brought out in the cross-examination and that, therefore, the petition for amendment of the plaint schedule was immediately filed. Thus, the amendment is being sought in regard to the extent and the measurements of the plaint schedule property only and not in any other regard to enable the plaintiff to correct the mistake in regard to the description of plaint schedule property insofar as its extent. 6(b). Be that as it may, the learned Counsel for the defendant had relied upon the decision in Ramoji Rao v. M.A.E. Kumar Krishnan Varma, 2012 (1) ALD 259 : 2012 (1) ALT 644 and had contended that the plaintiff in the instant case is not diligent in prosecuting his case and that the amendment was sought after commencement of trial and also to get over the points gained by the defendant in the cross-examination of the plaintiff and that in view of the proviso to Order VI Rule 17 of the Code, the plaintiff is debarred from seeking an amendment. The said provision of law viz., proviso to Order VI Rule 17 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial." 6(c). In the above decision this Court having referred to the content of the above provision had held on facts of that case that since all the above facts are clearly known to and within the knowledge of the petitioners long prior to OS No. 212 of 2007 and RCC No. 41 of 2007, the petitioners cannot seek amendments now on the plea that these facts could not be pleaded in the first instance or earlier to commencement of trial, despite due diligence. Thus the amendment was disallowed in the reported case having regard to the facts peculiar to that case. 6(d). No doubt in the case on hand the plaintiff is seeking the amendment of the schedule of the plaint after the commencement of the trial and, therefore, the proviso gets attracted. It is advantageous to refer to the following decisions: In the decision in Vidyabai v. Padmalatha, (2009) 2 SCC 409 , the Hon'ble Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the Court's jurisdiction to allow an application for amendment is taken away thereunder unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. The Hon'ble Supreme Court had also observed that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the Court would have no jurisdiction at all to allow the amendment. In Revajeetu Builders v. Narayana Swamy, (2009) 10 SCC 84 , on an analysis of English and Indian case law, the Hon'ble Supreme Court carved out the following principles which should weigh with the Court while dealing with an application for amendment: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case; (2) Whether the application for amendment is bona fide or mala fide; (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The Supreme Court, however, clarified that the above principles were illustrative and not exhaustive. In Chander Kanta Bansal v. Rajinder Singh, (2008) 5 SCC 117 , the Supreme Court, taking note of the fact that 'due diligence' has not been defined in CPC, referred to the dictionary meaning of 'diligence' which is to the effect that it means careful and persistent application or effort or a continual effort to accomplish something; care; caution; the attention and care required from a person in a given situation, and observed that 'due diligence' means the diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Reference was also made to 'Words and Phrases' by Drain-Dyspnea (Permanent Edition 13-A) wherein 'due diligence' was defined in law to mean doing everything reasonable and not everything possible. The Hon'ble Supreme Court, therefore, concluded that 'due diligence' would mean reasonable diligence and would mean such diligence as a prudent man would exercise in the conduct of his own affairs. 6(e). Further, in the decision in Abdul Rehman and another v. Mohd. Ruldu and others, 2013 (1) ALD 1 (SC), relied upon by the learned Counsel for the respondent/plaintiff the Hon'ble Supreme Court, having taken note of the above provision of law had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, inspite of due diligence, the party could not have raised the matter before the commencement of the trial. In the above decision the Hon'ble Supreme Court reiterated the following proposition: "All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. In the above decision the Hon'ble Supreme Court reiterated the following proposition: "All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties." In the above decision the Hon'ble Supreme Court further referred to the ratio in the decision in Pankaja and another v. Yellapa, AIR 2004 SC 4102 , which runs as follows: "If the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed." 6(f). Reverting to the instant case facts, what is to be noted is that the plaintiff is only seeking the amendment of the schedule of the plaint only in regard to the measurements and extent, by substituting 60 Square yards (10" length x 30" width) in the place of 453 Square yards. The circumstances in which the wrong extent was mentioned was well-explained by the plaintiff and notably, the defendant who is a tenant in a shop of the property of the plaintiff admittedly is not claiming tenancy rights in respect of the entire extent of 453 Square yards and the tenancy is confined to one shop room described within the boundaries mentioned in the schedule. It is not in dispute that the extent of the said shop in the occupation of the defendant is 60 Square yards (10" length x 30" width). It is not in dispute that the extent of the said shop in the occupation of the defendant is 60 Square yards (10" length x 30" width). The only objection that the amendment was sought after cross-examination of PW1 and after the commencement of trial cannot be countenanced in the facts peculiar to the case and for the following reasons: "On an earnest consideration of facts and law, it emerges that the amendment sought is imperative for proper and effective adjudication of the suit and that the application for amendment is bona fide and that the refusal of the amendment would lead to injustice and that on the other hand the allowing of the amendment does not cause any prejudice to the defendant as the claim of tenancy is admittedly not in respect of entire extent of 453 Square yards of the property of the plaintiff; refusing amendment would in fact lead to injustice or lead to multiple litigation; the proposed amendment being in regard to the extent of the plaint schedule does not constitutionally or fundamentally change the nature and character of the case. Mere change of extent of schedule of the property, if permitted would neither change the cause of action nor the nature of the suit. Further, on application of the settled legal principles set out supra, this Court finds that this is a case where the jurisdictional fact as envisaged in the proviso appended to Order VI Rule 17 of the Code exists and, that therefore, this Court could exercise the jurisdiction to allow the amendment." Viewed thus, this Court finds that granting of the amendment sub-serves the ultimate cause of justice and avoids further litigation and also any complications at the time of execution of decree, in case of ultimate success of plaintiff in the suit for eviction. Viewed thus, this Court finds that the order of the Court below brooks no interference. In the result, the civil revision petition is dismissed without costs. Miscellaneous petitions, if any, pending in this revision shall stand closed. Petition dismissed