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2014 DIGILAW 534 (AP)

Buragapu Meenakshi v. Satya Panigrahi

2014-04-10

A.V.SESHA SAI

body2014
JUDGMENT 1. This civil revision petition, filed under Article 227 of the Constitution of India, by the plaintiff in O.S.No.34 of 2011 on the file of the Court of the Principal Junior Civil Judge, Sompeta, assails the order dated 15.07.2013 dismissing I.A.No.87 of 2013 filed by the petitioner herein under the provisions of Order VI Rule 17 of the Code of Civil Procedure (CPC). 2. Heard Sri K. Manik Prabhu, learned counsel for the petitioner/plaintiff and Sri M.V. Suresh, learned counsel for the respondents/defendants. 3. The facts, essential for disposal of the present revision, as per the material available on record, are – the petitioner herein filed O.S.No.34 of 2011 on the file of the Court of the Principal Junior Civil Judge, Sompet, Srikakulam District for the following reliefs. “(a) For a permanent injunction restraining the defendants, their relatives, agents, servants and workmen from ever interfering with the plaintiff’s possession and enjoyment over the plaint schedule property; (b) Costs of this suit; and (c) To grant such other reliefs as the Hon’ble Court deems fit to grant in the nature and circumstances of the case.” 4. The plaint schedule property is an asbestos sheet roofed house with backyard situated on the Western row of Vasudevarajamani Street, Mandasa Village and Mandasa Mandal, Srikakulam District. The plaintiff/petitioner filed the present I.A.No.87 of 2013 under Order VI Rule 17 of CPC seeking the following amendments to the plaint. “Add the following after the plaint para III(c) as para III(d) as under – “For mandatory injunction to demolish the structure constructed by the defendants in the backyard vacant site of the house of plaintiff and recovery of possession of the vacant site measuring East-West: 10 feet and North-South: 2 feet”. In Para-V the following is to be added at its end – “The relief of mandatory injunction is valued at Rs.1,000/- and a court fee of Rs.111/- is paid under Section 26(c) of A.P.C.F. & S.V. Act and consequential recovery of possession is valued at Rs.1,416/- being the 3/4th of the market value of the encroached portion of the plaint schedule site and a court fee of Rs.148-50 is payable under Section 29 of A.P.C.F. and S.V. Act. Court fee is paid by way of challan of Station Bank of India Sompeta dated Total court fee paid is Rs.786/- + 111/- + 148-50 = 1,045-50 ps. Court fee is paid by way of challan of Station Bank of India Sompeta dated Total court fee paid is Rs.786/- + 111/- + 148-50 = 1,045-50 ps. The value of the suit for purpose of jurisdiction is Rs.10,000/- + 1,000/- + 1416/- = 12,416/-. In the prayer para-VI add the following as Para-VI (a1) as “For a mandatory injunction directing to remove the constructions made by the defendants in the backyard vacant site of the plaintiff’s house measuring East-West:10 feet and North-South: 2 feet which is more fully described as item No.2 of the plaint schedule and for recovery of the same.” In the schedule it is to be incorporated as item No.2: “Item No.2: Encroached portion of the site measuring East-West:10 feet and North-South:2 feet which is part of the backyard vacant site of item No.1 of the plaint schedule and the same is bounded by East: Vacant site of the plaintiff South: Remaining construction made by the defendant West: Vacant site of the plaintiff North: Vacant site of the plaintiff” 5. Resisting the said application, the respondents herein filed a counter. The Principal Junior Civil Judge, by virtue of the order dated 15.07.2013 dismissed the said application. Calling in question the validity and the legal acceptability of the said order, the present revision has been filed. 6. It is contended by the learned counsel for the plaintiff/petitioner, while reiterating the grounds of revision that the order impugned is erroneous, contrary to law and is opposed to the very object and intention of the provisions of Order VI Rule 17 of CPC. It is further contended by the learned counsel for the petitioner that the learned Principal Junior Civil Judge grossly erred in dismissing the application by observing that the application for amendment was filed to drag on the suit by totally ignoring the categorical averment of the petitioner herein that pending the suit the defendants have encroached upon the property of the petitioner. It is also argued by the learned counsel for the petitioner that while dealing with the application filed under Order VI Rule 17 CPC, the Courts are required to adopt a liberal approach in order to meet the ends of justice. It is also argued by the learned counsel for the petitioner that while dealing with the application filed under Order VI Rule 17 CPC, the Courts are required to adopt a liberal approach in order to meet the ends of justice. It is further contended that the finding of the Court below with regard to the date of alleged encroachment is also unsustainable and not germane for the purpose of consideration of the present application. 7. Per contra, it is contended by the learned counsel for the respondents that the order of the Court below is perfectly justified and in accordance with law, and in consonance with the provisions of Order VI Rule 17 CPC. It is also argued by the learned counsel that since the trial has commenced in the present case, the present application is not maintainable in view of the proviso to Order VI Rule 17 of CPC which bars such an application after the commencement of trial. It is also argued by the learned counsel for the respondents that failure on the part of the petitioner to furnish the exact date and year of encroachment is also fatal to the case of the petitioner herein. It is further argued by the learned counsel that since the petitioner herein is asking two reliefs in one application, the same is not maintainable in view of Rule 55 of the Civil Rules of Practice. It is further argued by the learned counsel for the petitioner that neither in the plaint nor in the chief affidavit filed in the month of July 2013, the petitioner herein made any mention of the alleged tenancy and that the alleged tenancy is invented for the purpose of the present application. It is also the case of the defendants herein that the plaintiff has never been in possession of the schedule property. In support of his contention, the learned counsel for the respondents placed reliance on the judgment in the case of Angati Tatayya v. Vakada Sanyasirao ( 2012 (6) ALT 450 ). 8. In the light of the pleadings, submissions and contentions, now the questions which fall for consideration of this Court are – whether the orders impugned in the present revision are sustainable and tenable; and whether the same requires any correction by this Court in exercise of the powers conferred under Article 227 of the Constitution of India. 9. 8. In the light of the pleadings, submissions and contentions, now the questions which fall for consideration of this Court are – whether the orders impugned in the present revision are sustainable and tenable; and whether the same requires any correction by this Court in exercise of the powers conferred under Article 227 of the Constitution of India. 9. The provision of law for dealing with the issue involved in the present revision, is Order VI Rule 17 CPC, which reads as under. “Amendment of Pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: 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.” 10. Proviso to Order VI Rule 17 CPC, which imposes restriction on amendments after commencement of trial, came into force w.e.f. 01.07.2002 by virtue of CPC Amendment Act, 2002. The intention of the legislature, obviously behind the same, is to arrest and avert unwanted, unnecessary and undue delays in the process of adjudication. Therefore, the said aspect is also required to be borne in mind while adjudicating such applications. The proviso to Order VI Rule 17 obligates the person applying to plead and prove that in spite of due diligence he/she could not bring the aspect covered by such amendment to the consideration of the Court earlier. Therefore, such ingredient or contingency of due diligence is a sine quo non either for invoking Order VI Rule 17 CPC by the party or for exercising jurisdiction by this Court under Article 227 of the Constitution of India. In the absence of the same, the amendment of pleadings is impermissible and if the power under Article 227 of the Constitution is exercised despite its absence, the same would be in the direction of frustrating the legislative intent. 11. In the absence of the same, the amendment of pleadings is impermissible and if the power under Article 227 of the Constitution is exercised despite its absence, the same would be in the direction of frustrating the legislative intent. 11. In the instant case, the material on record discloses that such aspect of due diligence, is conspicuously absent and the only reason assigned in the affidavit filed in support of the present application is that the defendants in violation of the orders of the Court in I.A.No.25 of 20012 have trespassed into the backyard vacant site of the plaintiff. The provisions of Order VI Rule 17 CPC as amended w.e.f. 1.07.2002 are intended to safeguard obviously the diligent litigants and such intention of the legislature cannot be extended nor the same can be extended even for the eventualities where the absence of due diligence is conspicuously present. 12. In the present case, the petitioner herein instituted the suit on 5.05.2012 as evident from the plaint filed along with the revision petition and sought the relief of permanent injunction. Along with the suit, the petitioner herein filed I.A.No.25 of 2012 under Order 39 Rule 1 CPC and obtained injunction on 7.05.2012. It is also to be noted that the petitioner herein also filed I.A.No.12 of 2012 earlier under Order VI Rule 17, seeking correction of the name of the 1st defendant and the same was allowed. Subsequently, the Court framed the issues and when the suit was coming up for cross-examination of PW.1, the present application under Order VI Rule 17 CPC was filed. It is also significant to note at this juncture that the plaint and the affidavit filed in lieu of chief examination, which is placed on record by the learned counsel for the petitioner, filed in the month of July 2013, are conspicuously silent with regard to the alleged lease of the property. Therefore, the averment of the petitioner in the affidavit filed in support of the present I.A that he came to know of the factum of encroachment through the tenants, cannot be given any importance . 13. One of the reasons assigned by the Court below for dismissing the application is failure on the part of the petitioner herein to furnish the date of encroachment. 13. One of the reasons assigned by the Court below for dismissing the application is failure on the part of the petitioner herein to furnish the date of encroachment. At this juncture, it is relevant to refer to the judgment of this Court reported in Angati Tatayya case (1 supra) wherein this Court at paragraph 7 dealt with an identical situation, which reads as under. “7. The case of the revision petitioner is that the respondent -defendant trespassed into the suit schedule property and dispossessed him by beating him and committing several offences and that he gave complaints to police but police did not take any action. As a matter of fact, the revision petitioner has not specifically stated in which month and on what date the respondent - defendant trespassed into the suit schedule property and dispossessed him, and there is no iota of proof to show that the revision petitioner made complaints to the police and the police did not act upon. It is pertinent to note that the revision petitioner filed I.A.No.1875 of 2001 for temporary injunction and the same was dismissed and he preferred appeal in C.M.A. No.57 of 2004 and the appeal was also dismissed. Dismissal of the I.A. and the C.M.A indicates that the revision petitioner could not establish his possession and enjoyment over the suit schedule property. Further, it is seen that the C.M.A. was dismissed on 22.04.2006 and the present I.A. for amendment was filed on 21.10.2009 i.e. after more than three years. It is also pertinent to note that the suit is of the year 2001 and the chief examination affidavit of PW.1- revision petitioner is filed on 7.4.2009 and the suit is coming for his cross examination. Thereafter, the revision petitioner took several adjournments, and when the matter was adjourned as last chance, the revision petitioner filed the present I.A. for amendment on 21.10.2009. In the circumstances, there are no merits in the C.R.P. and it cannot be said that the revision petitioner is diligent in prosecuting the suit, and as such, the trial Court has rightly observed that the revision petitioner filed the present I.A. to drag on the suit proceedings. In the circumstances, there are no merits in the C.R.P. and it cannot be said that the revision petitioner is diligent in prosecuting the suit, and as such, the trial Court has rightly observed that the revision petitioner filed the present I.A. to drag on the suit proceedings. The decisions relied on by the learned counsel for the revision petitioner in Adusumilli Venkateshwar Rao and another v. Chalasani Hymavathi, Om Prakash Gupta v. Ranbir B.Goyal and Anathula Sudhakar v. P.Buchi Reddy (dead) by LRs and others are not applicable to the facts of the case on hand.” 14. In the case of Revajeetu Builders & Developers v. Narayana Swamy & Sons (2009) 10 SCC 84 ) the Hon’ble Apex Court at paragraph No. 63 held as under – “On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the 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. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.” 15. In Sri Venkata Ramana Arcade v. Y. Vijaya Lakshmamma (died) per LRs ( 2014 (1) ALD 281 ), this Court at paragraphs 21 and 33 held as under. 21. While conscious of the fact that the correctness or falsity of the case in the amendment should not be gone into at the time of considering as to whether an application for such amendment should be allowed or not, this Court is equally alive to the settled legal proposition that an amendment which introduces a totally different, new and inconsistent case or changes the fundamental character of the case already instituted should be refused. No amendment which would cause injustice to the opposite party would normally be permitted unless the same can be compensated by costs. Though amendments are to be permitted ordinarily at any stage of the proceedings, the discretionary power conferred on the Court in this regard must be exercised with balance and equanimity. The primary and predominant consideration of the Court would be to see as to whether such amendment is necessary for determining the real question in controversy and whether the same can be allowed without causing prejudice to the other side. After the amendment of Order VI Rule 17 CPC in the year 2002, the proviso thereto restricts and curtails the power of the Court to allow amendment of pleadings once the trial has commenced. In such a situation, the court must come to the conclusion that in spite of due diligence, the party could not have sought such amendment before commencement of the trial. Due diligence, in this context, would mean the reasonable level of diligence expected of and exercised by a prudent man while conducting his affairs.” 33. The inexorable fact however remains that the petitioner firm sought to introduce a wholly new case through the proposed amendments and despite the completion of evidence in E.A.No.444 of 2005, it did not choose to put forth any valid reasons to satisfy the Court below that despite due diligence it could not seek such amendment prior to the commencement of the trial. The Court below therefore rightly found that the amendment introduced a totally new case and that there was no satisfactory explanation as to due diligence having been exercised by the petitioner firm before the commencement of the trial.” 16. In Muthukur Gram Panchayat, SPSR Nellore District v. Kakuturu Ramesh Reddy and others ( 2014 (1) ALD 444 ) this Court at paragraph 9 & 10 held as under. In Muthukur Gram Panchayat, SPSR Nellore District v. Kakuturu Ramesh Reddy and others ( 2014 (1) ALD 444 ) this Court at paragraph 9 & 10 held as under. “Order VI Rule 17 CPC reads as follows: “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions of controversy between the parties: 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.” The above provisions make it clear that (a) No application for amendment shall be allowed after the trial has commenced; (b) 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.” 17. It is also a settled and well established proposition of law that unless the order impugned suffers from foundational defect, fundamental infirmity, material irregularity and patent perversity, the jurisdiction under Article 227 of the Constitution cannot be exercised as held by the Hon’ble Apex Court in the judgments reported in Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 );Ouseph Mathai and ors. V. M. Abdul Khadir (2002) 1 SCC 319 ); and Surya Dev Rai v. Ram Chander Rai and ors. (2003) 6 SCC 675 ). 18. For the aforesaid reasons and for the reasons recorded by the court below in the impugned order, and having regard to the principles and parameters laid down by the Hon’ble Apex Court and this Court in the above referred judgments, the Civil Revision Petition is dismissed. No order as to costs.