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2014 DIGILAW 63 (AP)

Desai Krishnamurthy v. Pinjari Moula Ali Sab

2014-01-21

R.KANTHA RAO

body2014
Judgment 1. This Civil Revision Petition is filed under Section 115 of Code of Civil Procedure against the order dated 07.03.2013 passed in I.A.No.164/2008 in A.S.No.119/2007 on the file of the Court of the II Additional District Judge, Kurnool at Adoni. 2. I have heard Sri Surendra Desai, learned counsel appearing for the petitioner/defendant and Sri B. Vijayabhaskar, learned counsel appearing for the respondent/plaintiff. 3. The revision petitioner is the defendant and the respondent is the plaintiff in the suit. For the sake convenience, the parties are referred to as “plaintiff and defendant”. 4. The plaintiff filed the suit for bare injunction in respect of the plaint schedule property restraining the defendant from interfering with his peaceful possession and enjoyment of the said property. The plaint schedule property was purchased by his mother Dasthagiramma under a registered sale deed dated 06.05.1969, marked as Ex.A1. According to the plaintiff, he was minor on the date of the purchase of the property by his mother. After attaining the majority, he got his name mutated in the revenue records; pattadar passbook and title deed were issued to him by the revenue authorities. According to him, the defendant’s father filed Original Suit No.238/1974 on the file of the Court of the Junior Civil Judge, Alur against his mother for recovery of arrears of lease amount. The said suit was decreed and the father of the defendant filed E.P.No.78/1975 and got the plaint schedule property attached. The property was put to auction and the defendant’s father purchased the property in the Court auction on 02.08.1976 for an amount of Rs.1,625/-. The version of the plaintiff is that as on the date of the said Court auction sale also he was minor and therefore, he states that the Court auction sale is null and void and is not binding on him. The plaintiff claims to be in continuous possession of the plaint schedule property though the property was purchased by the defendant’s father in the Court auction. 5. Obviously, the plaintiff had knowledge of purchase of property by the defendant’s father in Court auction as on the date of filing of the suit by him. But he did not seek the relief of declaration of title and has chosen to file the suit for bare injunction. 6. 5. Obviously, the plaintiff had knowledge of purchase of property by the defendant’s father in Court auction as on the date of filing of the suit by him. But he did not seek the relief of declaration of title and has chosen to file the suit for bare injunction. 6. The defendant resisted the suit by filing a written statement contending that the plaintiff and his mother were residing jointly and they were aware of his father purchasing the plaint schedule property in the Court auction on 02.08.1976 and thereafter taking possession of the property and contended that the plaintiff and his mother never objected for taking possession of the property. It is specifically contended by the defendant in the written statement that the plaintiff’s mother was not the owner of the plaint schedule property and with a fraudulent intention to knock away the property, the plaintiff filed the suit for simple injunction against him. Thus, according to the defendant, the property has been in his continuous and uninterrupted possession ever since his father purchased the same in Court auction and took possession of the same. The defendant made a categorical denial of title of the plaintiff and his mother in respect of the plaint schedule property and asserted that he is the absolute owner of the property and has been in continuous possession and enjoyment of the same. 7. The trial Court dismissed the suit of the plaintiff, against which, the plaintiff preferred an appeal in A.S.No.119/2007 on the file of the II Additional District Judge, Kurnool at Adoni. In the said appeal, the plaintiff filed an application in I.A.No.164/2008 under Order VI Rule-17 CPC seeking amendment of the plaint, permitting him to pray for the relief of declaration of his right and title to the suit schedule property and also to declare the Court sale deed dated 02.08.1976 as null and void and not binding on him. The said application was opposed by the defendant, but was allowed by the appellate Court by following the ratio laid down by the Supreme Court in Pankaja vs. Yellappa (D) by LRs. 2004(5) Supreme 772 , wherein it was held by the Apex Court that the amendment of pleading even sought after substantial delay can be allowed and it can be sought after relief is barred by limitation in appropriate cases if that sub-serves cause of justice to avoid further litigation. 2004(5) Supreme 772 , wherein it was held by the Apex Court that the amendment of pleading even sought after substantial delay can be allowed and it can be sought after relief is barred by limitation in appropriate cases if that sub-serves cause of justice to avoid further litigation. Feeling aggrieved, the defendant filed the present revision petition. 8. The point which falls for consideration in the present revision petition therefore is whether the appellate Court is justified in allowing the amendments sought for by the plaintiff in the facts and circumstances of the case? Point: 9. Before going into the merits of the case, it would be necessary to deal with Order VI Rule-17 CPC. According to the first part of Rule-17 of Order VI CPC, the Court may at any stage of the proceedings allow either party to alter or amend his proceedings 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. However, the proviso lays down that no application for amendment shall be allowed after the trial is 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 the trial. Thus, from the first part of Rule-17 of Order VI CPC, the Court has wide discretion to allow the amendment if it is just and necessary and for the purpose of determining the real questions in controversy between the parties. 10. The proviso to Rule-17 of Order VI CPC was introduced by CPC (Amendment) Act, 2002 (22 of 2002), which became effective from 01.07.2002 and the proviso puts a rider on the discretionary power of the Court in granting amendments and it lays down that unless the party satisfies the Court that in spite of due diligence he could not have raised the matter before the commencement of the trial, no application for amendment shall be allowed after the commencement of the trial. Therefore, according to the proviso, the amendment can be allowed after commencement of the trial only in the event of the party seeking amendment satisfying the Court that he could not move an application for the proposed amendment in spite of due diligence. 11. In Pankaja vs. Yellappa (D) by LRs. Therefore, according to the proviso, the amendment can be allowed after commencement of the trial only in the event of the party seeking amendment satisfying the Court that he could not move an application for the proposed amendment in spite of due diligence. 11. In Pankaja vs. Yellappa (D) by LRs. (1 supra) relied on by the lower appellate Court itself, the Apex Court referred to the earlier decision of the Supreme Court in L.J. Leach and Co. Ltd. & Anr. Vs. Messrs. Jardine Skinner and Co. AIR 1957 SC 357 wherein the Supreme Court has laid down that the Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But the Supreme Court in the judgment relied on by the appellate Court in the present case expressed the view that the dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made after allowing the amendment prayed. 12. In the case before the Supreme Court, the plaintiff filed a suit for permanent injunction in respect of a piece of vacant land and subsequently during the trial he filed an application seeking amendment alleging that the defendant further encroached into the suit property and sought for an amendment of plaint seeking possession of the said encroached property. The defendant contended in the written statement that without seeking declaration of title, a suit for injunction and possession was not maintainable. Thus, according to me, the facts before the Supreme Court in Pankaja vs. Yellappa (D) by LRs. (1 supra) are altogether different from the facts of the case in hand. 13. The defendant contended in the written statement that without seeking declaration of title, a suit for injunction and possession was not maintainable. Thus, according to me, the facts before the Supreme Court in Pankaja vs. Yellappa (D) by LRs. (1 supra) are altogether different from the facts of the case in hand. 13. The learned counsel appearing for the respondent/plaintiff relied on a judgment of this Court in T.Veera Venkata Rao vs. Tikkana Venkata Ramana 2010(2) Civ.C.R.435(A.P), wherein a learned single Judge of this Court took a view that Article-65 of the Limitation Act prescribes 12 years period of limitation for instituting suit by a vested remainder for declaration, the 1st defendant is still alive and as such the petitioner/plaintiff acquires rights over the suit schedule property only on the death of the 1st defendant and therefore, the relief of declaration of title claimed by the plaintiff is not barred by limitation since Article-65 of the Limitation Act governs such suits filed by a vested remainder. The learned single Judge observed that even the petitioner can now institute a fresh suit against defendants for the relief now claimed and allow the amendment petition to avoid multiplicity of the proceedings, therefore, held that the lower Court ought to have exercised its discretion in favour of the petitioner by allowing the amendment sought for on certain terms. The facts in the above said judgment are also cannot be applied to the facts of the present case. 14. In the instant case, from the respective contentions of the parties, it is obvious that the respondent/plaintiff, on the date of filing of the suit for bare injunction, had knowledge of suit in O.S.No.238/1974 filed by the defendant’s father, his obtaining decree, filing of E.P.78/1975, getting the suit schedule property attached and also purchasing the suit schedule property in Court auction on 02.08.1976. Purchasing plaint schedule property in the Court auction ought to be in denial of the right and title of the plaintiff’s mother. The plaintiff therefore was clearly aware of the fact that the defendant on the date of filing of the suit by him for simple injunction was asserting title to the plaint schedule property, as is evident from purchasing the property in Court auction by the father of the defendant. The plaintiff therefore was clearly aware of the fact that the defendant on the date of filing of the suit by him for simple injunction was asserting title to the plaint schedule property, as is evident from purchasing the property in Court auction by the father of the defendant. Therefore, the plaintiff ought to have sought the relief of declaration of his right and title in the suit filed by him, but he failed to do so. His suit was dismissed by the trial Court holding that he failed to establish his possession over the plaint schedule property. Thereafter, he filed the appeal and in the appeal he filed an application seeking amendment of prayer for declaration of his title and for cancellation of the Court sale deed. 15. Before considering the issue as to whether allowing the amendment by the appellate Court was proper, it would be necessary to peruse the judgment of the Supreme Court in Rajkumar Gurawara (Dead) Thr.L.Rs. vs. M/s. S.K. Sarwagi & Co. Pvt. Ltd. & Anr. 2008(4) Supreme 435 , relied on by the petitioner/defendant, wherein the Supreme Court held as under: “…..Pre-trial amendments are to be allowed liberally than those which are sought to be made after commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after commencement of trial, particularly, after completion of evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.” 16. In the case before the Supreme Court, the plaintiff came up with an application for amendment at the stage of arguments in the suit and the Supreme Court held that admittedly the plaintiff failed to adhere to said recourse at appropriate time. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule-17 CPC but even on merits his claim held liable to be rejected. 17. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule-17 CPC but even on merits his claim held liable to be rejected. 17. Turning to the facts of the present case, the respondent/plaintiff had knowledge about the denial of his title and that of his mother by the petitioner/defendant and his father even on the date of his filing suit for bare injunction, yet, he did not choose to seek the relief of declaration of title at the time of instituting the suit itself. The defendant in the written statement filed by him before the trial Court had categorically denied the title of the plaintiff and his mother and asserted that he is the absolute owner of the property and has been in continuous possession and enjoyment of the same ever since his father purchased the suit schedule property in Court auction. The defendant never admitted the title or possession of the plaintiff. The appeal filed by the plaintiff was kept pending for 4 years but the appellate Court allowed the application filed by the plaintiff seeking amendment of plaint permitting him to introduce a prayer of declaration of title, recovery of possession and also cancellation of Court sale deed dated 02.08.1976. Therefore, this is a case wherein both parties have asserting title to the property and the limitation of 12 years prescribed under Articles-64 or 65 of the Limitation Act is not available to the plaintiff since his case is neither that he was dispossessed from the property on a particular date nor was he claiming title to the property by adverse possession. Since admittedly the defendant’s father purchased the property in the Court auction and claims to have obtained possession of the property under the Court sale deed dated 02.08.1976 executed pursuant to the Court auction, there was a clear unequivocal denial of title by the defendant and his father by virtue of purchase under Court auction which is known to the plaintiff and his mother. 18. The right to sue therefore first accrued to the plaintiff when he came to know about the purchase of the property by the defendant’s father in Court auction after his attaining majority. Even according to the plaintiff, he attained the majority in or about 1971 or 1972. 18. The right to sue therefore first accrued to the plaintiff when he came to know about the purchase of the property by the defendant’s father in Court auction after his attaining majority. Even according to the plaintiff, he attained the majority in or about 1971 or 1972. He must have acquired knowledge about the Court auction by the father of the defendant soon after his attaining majority. The Court auction sale was held on 02.08.1976. By then, the plaintiff was a major, therefore, he has to seek declaration of his title and cancellation of sale deed obtained by the father of the defendant within three years from 02.08.1976, as provided in Article-58 of the Limitation Act. In any event, from the facts and circumstances stated herein above, it cannot be said that in spite of due diligence, the plaintiff could not have sought for the amendment before the commencement of the trial. In view of the proviso to Rule-17 of Order VI CPC, the appellate Court ought not to have allowed the amendment application. Unless the order passed allowing the amendment is set aside, it would cause any amount of prejudice to the defendant and also it would take away the right of the defendant accrued to him under law of limitation. The order passed by the lower appellate Court dated 07.03.2013 in I.A.No.164/2008 in A.S.No.119/2007 is therefore liable to be set aside and accordingly the same is set aside. 19. Accordingly, the Civil Revision Petition succeeds and the same is allowed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed in consequence.