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2017 DIGILAW 788 (AP)

Usha Bawgikar v. Gopal Rao Bawgikar

2017-11-27

M.SEETHARAMA MURTI

body2017
ORDER : M. Seetharama Murti, J. This Civil Revision Petition, under Article 227 of the Constitution of India, by the unsuccessful petitioners/defendants 15 and 16, is directed against the orders, dated 07.09.2017, of the learned Additional Judge-cum-VI Senior Civil Judge, City Small Causes Court, Hyderabad, passed in I.A. No. 355 of 2017 in O.S. No. 189 of 2002 filed under Order 6, Rule 17 read with section 151 of the Code of Civil Procedure, 1908, ('the Code') to permit them to amend the written statement filed by the deceased 1st defendant, which they have adopted, by adding paragraph 13(A) after the paragraph 13 in the original written statement of the deceased 1st defendant, as stated in the petition list. 2. I have heard the submissions of Sri Mirza Nisar Ahmed Baig Nizami, learned counsel appearing for the revision petitioners/defendants 15 and 16; and of Sri C. Shiv Lal, learned counsel appearing for the 4th respondent. I have perused the material record. 3. To begin with, it is to be noted that the plaintiff brought the suit against the defendants for partition of the suit schedule property into five equal and equitable shares by metes and bounds and for allotment of one such separated share to the plaintiffs. The defendants 15 and 16, who were impleaded on the death of the 1st defendant, are resisting the suit. The 1st defendant filed a written statement. The same was adopted by the defendants 15 and 16. However, during the pendency of the suit, the defendants 15 and 16 filed the aforesaid petition seeking permission to amend the written statement of the deceased 1st defendant, which they had adopted, by incorporating paragraph 13-A after paragraph 13. The said petition was resisted by the plaintiffs. On merits and by the orders impugned in this revision, the trial Court dismissed the petition of the defendants 15 and 16. Hence, they are before this Court. 4. The case of the petitioners/defendants 15 and 16 in support of their request for amendment of the written statement of the deceased 1st defendant, which they had adopted, in brief, is as follows: The plaintiffs brought the suit for partition. The suit is coming up for evidence on the side of the defendants 15 and 16, who are the legal representatives and successors-in-interest of the deceased 1st defendant. The suit is coming up for evidence on the side of the defendants 15 and 16, who are the legal representatives and successors-in-interest of the deceased 1st defendant. All his legal heirs and legal heirs of other deceased defendants are also brought on record. The legal heirs of the other deceased defendants 2 and 3 have not adduced any evidence. The 4th defendant has also not adduced any evidence. The 1st defendant was earlier looking after the case and he was also taking care of the suit schedule property. However, he died suddenly. The case records, files, documents and other material papers were kept by him at various places. The deceased 1st defendant filed a written statement; and, the defendants 15 and 16, who are the wife and the son of the deceased 1st defendant, adopted his written statement in which he denied the suit claim. There was also a box containing various documents and papers. While searching for the case records, documents and material papers, the said box was opened with a view to prepare for adducing evidence on the side of these defendants 15 and 16 and contest the case. While preparing to lead evidence in the above case and while searching for the material papers, these defendants traced an urdu document, dated 12th Teer 1348 Fasali, written in urdu language on one stamp paper of 8 annas of Sarkare Asafia Govt of 1905, from the box of the grand parent. The translated copy of the said document shows that it is a Will executed by Bheem Rao, the father of the deceased 1st defendant, in favour of the deceased 1st defendant, who is also known as Shanker in the family circle. As such, it has become necessary to seek amendment of the written statement of the deceased 1st defendant, which was adopted by these defendants 15 and 16, by incorporating the following paragraph 13-A after the paragraph 13 in the written statement of the deceased 1st defendant. The said paragraph 13(A), verbatim, reads as under: 13(A): That after the death of original defendant No. 1, a WILL dated 12th Teer 1348 Fasali was found which was executed by the admitted title holder of the suit schedule property namely Bheem Rao S/o Gopal Rao Bawgikar, the father of Original Plaintiff, Defendant No. 1 to 4 in favour Defendant No. 1 in the suit. The suit schedule property is thus not the ancestral property available for partition. Neither the Original Plaintiff and the Defendant No. 2 to 4 are the legal heirs of the plaintiff and Defendant No. 2 & 3 and Defendant No. 4 has any right vested with them to claim for the Share. The plaintiff and the defendants were never in the possession of the suit schedule property all through and the deceased Defendant No. 1 was in exclusive enjoyment of the suit schedule property till his last breath and had exclusive tile over the suit schedule property by virtue of the said will. Thus it cannot be claimed by the plaintiff and defendants 2 to 4 that the suit schedule property was in joint possession. As such the suit is thus liable to be dismissed with costs." In view of the facts aforesaid, the proposed amendment, which is necessary for adjudication of the suit, will not change the defence already taken by the 1st defendant and adopted by the defendants 15 and 16. For the above said reasons, the suit schedule property is not liable for partition and the plaintiffs and the other defendants have no right in the suit schedule property and they have no locus standi or subsisting right to a share in the suit schedule property. Since the document was traced out only on 19.08.2017, the amendment petition could not be filed earlier. The amendment now being sought for can be claimed at any stage, if the amendment is necessary in the interests of justice. The proposed amendment, if allowed, will enable the defendants 15 and 16 to place the above evidence before the Court. Hence, leave may be granted for amendment of the written statement of the deceased 1st defendant, as sought for by these defendants. 5. Per contra, the case of the plaintiffs, as stated in the counter affidavit of the 4th plaintiff, in brief, is this: The material averments in the affidavit filed in support of the petition are all false and invented. While searching for documents, the alleged urdu document, dated 12th Teer 1348 Fasali, written in urdu language on one stamp paper of 8 annas of Sarkare Asafia Govt. While searching for documents, the alleged urdu document, dated 12th Teer 1348 Fasali, written in urdu language on one stamp paper of 8 annas of Sarkare Asafia Govt. of 1905, was found on opening of the box of the grand parent of the 16th defendant and that the said document is a Will executed by late Bheem Rao, the father of the deceased 1st defendant, and that as the said Will was traced out, on 19.08.2017, by the defendants 15 and 16, and that therefore, the amendment of the written statement of the deceased 1st defendant is necessary, are all false allegations. Earlier, the deceased 1st plaintiff, who is the father of the 4th plaintiff, filed suit in O.S.No. 3102 of 1995 on the file of the IV Assistant Court, City Civil Court, Hyderabad, against the deceased 1st defendant, defendant No. 15 and the two sons of defendant No. 4, seeking perpetual injunction. In the said suit, the deceased 1st defendant herein filed a written statement on 03.03.1997. In the written statement, he pleaded as follows: 'It is also humbly submitted that the necessary parties are not included in the suit. The mother of the plaintiff and the first defendant and their sisters who are having their respective shares are not impleaded as necessary parties in the suit.' 'It is humbly submitted that even if it is presumed to be true that the Schedule Property has gone to Plaintiff's share after partition, it is not at all valid as the plaintiff and Defendant No. 1 are not entitled to have made partition against the interest of their mother and sisters.' The said written statement was marked as exhibit A4 in the instant suit. The deceased 1st defendant also gave evidence in the said suit. In the deposition in the said suit, he stated as follows: 'There was no partition of 1180 and 1181 at any time. My father died in the year 19542 as intestate. Since the property is not partitioned, I got rights in the suit property. The plaintiff has also got right in the property No. 6-3-1180'. The deposition of the deceased 1st defendant in the aforesaid suit is marked as exhibit A5. After full-fledged trial and after serious contest, the said suit was dismissed by holding that a suit for injunction against co-owners is not maintainable. The plaintiff has also got right in the property No. 6-3-1180'. The deposition of the deceased 1st defendant in the aforesaid suit is marked as exhibit A5. After full-fledged trial and after serious contest, the said suit was dismissed by holding that a suit for injunction against co-owners is not maintainable. The appeal in A.S. No. 96 of 2001 on the file of the Additional Chief Court, City Civil Court, was also dismissed confirming the judgment of the trial Court. In the judgment of the first appellate Court, it was observed as follows: 'From the material on record, it appears to this Court that the properties left by the father of the plaintiff and Defendant No. 1 still continue to be joint'. The said finding has become final. Basing on the said finding and also on the contention of the deceased 1st defendant in his written statement in the former suit, the present suit is filed by the deceased 1st plaintiff against his brothers and sisters, defendants 1 to 4. The decree and judgments in the former suit are marked as exhibits A2 and A3. The partition suit is pending since fifteen years. Already several parties (nearly eight parties to the suit) died, during the pendency of the suit. The present petition is filed to further delay the proceedings in the suit. Even though the suit is posted finally to 22.08.2017 for the evidence of defendants 15 and 16, they did not adduce evidence on that day and came forward with this petition to harass the plaintiffs. In view of the admissions of the 1st defendant, which are stated supra, the defendants 15 and 16, who are his legal representatives, are not entitled to seek amendment of the written statement of the deceased 1st defendant as now being sought for by them. The 1st defendant never spoke about the alleged Will at any point of time during the 20 years of litigation; and, on the contrary, he admitted that it is a joint family property of himself, deceased 1st plaintiff and defendants 2 to 4 and therefore, the story about the alleged Will deed is a false and created story and it cannot be believed. Hence, the petition is liable to be dismissed. 6. Learned counsel for both the sides made submissions in line with the contentions of their respective parties. 7. Hence, the petition is liable to be dismissed. 6. Learned counsel for both the sides made submissions in line with the contentions of their respective parties. 7. At the outset, it is to be noted that the deceased 1st plaintiff brought the suit against his brother and sisters, defendants 1 to 4, for partition of the suit schedule property and for allotment of a separate ?th share to him in the suit schedule property. The 1st defendant filed a written statement resisting the suit. The 1st plaintiff died and his legal representatives are brought on record. The revision petitioners herein, i.e., defendants 15 and 16, are the wife and son of the deceased 1st defendant. They have adopted the written statement filed by the deceased 1st defendant. Now, they are seeking amendment of the written statement of the deceased 1st defendant, which they had adopted, to incorporate the aforesaid paragraph 13(A) after paragraph 13 in the aforesaid written statement of the deceased 1st defendant. In support of their contention, their averments are as follows: 'One Bheem Rao is the father of the deceased 1st defendant. When the suit is coming up for the evidence of defendants 15 and 16, they searched for records, documents and material papers to prepare for leading evidence on their side. The case records and files were kept by the deceased 1st defendant at various places. There was also a box containing various papers and documents. When the said box of Bheem Rao was opened, the defendants 15 and 16 found a document, dated 12th Teer 1348 Fasali, written in urdu language on one stamp paper of 8 annas of Sarkare Asafia Govt. of 1905; and they got it translated and came to know that it is a Will of Bheem Rao. The Will was thus traced for the first time, on 19.08.2017. Hence, the defendants 15 and 16 are constrained to seek amendment of the written statement of the deceased 1st defendant, which they had adopted.' 8. The plaintiffs are mainly opposing the request of the defendants 15 and 16 for amendment of the written statement of the deceased 1st defendant on the following grounds: Even according to the version of defendants 15 and 16, the deceased 1st defendant, who is an advocate, was taking care of the matter and the property. The plaintiffs are mainly opposing the request of the defendants 15 and 16 for amendment of the written statement of the deceased 1st defendant on the following grounds: Even according to the version of defendants 15 and 16, the deceased 1st defendant, who is an advocate, was taking care of the matter and the property. During the period of 20 years of litigation, he never claimed that there is a Will by late Bheem Rao. The said alleged Will, which is being sought to be introduced for the first time in the present suit by way of amendment to written statement, has never seen the light of the day since several decades. In the former suit in O.S. No. 3102 of 1995 on the file of IV Junior Civil Court, City Civil Court, Hyderabad, filed for perpetual injunction, the deceased 1st defendant herein filed a written statement making an admission that it is a joint property and in that suit, he did not either plead or establish that there is a Will by late Bheem Rao. Further, in his deposition in the said suit, he stated that his father died intestate and also deposed that the property is not partitioned and hence, he has got rights in the suit and that the plaintiff, his brother, has also got right in the property. The said suit was dismissed on the ground that a co-owner is not entitled to an injunction against another co-owner and the appeal preferred thereof was also dismissed with the following observation: 'From the material on record it appears to this Court that the properties left by the father of the plaintiff and defendant No. 1 still continue to be joint'. In the present suit also, the deceased 1st defendant did not plead about the Will and the 1st defendant, who is an advocate and who is well-versed in Court affairs, throughout did not state at any time that his father executed a Will. The alleged Will is a forged and fabricated document. The legal representatives of the deceased party are only entitled to prosecute the same defence, which the deceased has taken; and the legal representatives of the deceased defendant cannot take a defence, which is at variance with the defence that was already taken by the deceased defendant, who is the predecessor-in-interest. The alleged Will is a forged and fabricated document. The legal representatives of the deceased party are only entitled to prosecute the same defence, which the deceased has taken; and the legal representatives of the deceased defendant cannot take a defence, which is at variance with the defence that was already taken by the deceased defendant, who is the predecessor-in-interest. 8.1 It is to be noted that the learned counsel for the defendants 15 and 16 relied upon the following two decisions. In Andhra Bank v. ABM Amro Bank N.V. and others, AIR 2007 SC 2511 the Supreme Court held as follows: ".... amendment sought to be introduced must be allowed. The merit of the proposed amendment cannot be gone into while considering an application for amendment of the pleadings. Merely on the ground of delay, an application seeking amendment of the written statement cannot be rejected as delay is no ground for refusal of prayer for amendment". In G.S. Prakash v. Polasa Hanumanlu 2015 (2) ALT 594 , this Court pointed that in the following circumstances, an amendment can be allowed. (a) All pre-trial stage (prior to examination of witnesses) amendments which do not alter the nature and character of the suit and substitute or introduce new cause of action; (b) In cases of pending or post-trial amendments, the Court must allow the same subject to the applicant, in addition to satisfy the condition (a) supra, satisfying two other conditions, viz., (i) that the amendment is necessary for determining the real questions in controversy and (ii) that despite due diligence, the applicant could not move the application at an earlier stage; (c) Where, the proposed amendment will not work injustice or cause prejudice to the other side; (d) Where, by the proposed amendment the position of the other party will be altered, but the same can be compensated by costs; (e) Even where the proposed amendment introduces inconsistency in pleadings, if by the proposed amendment, the party does not seek to resile from the admissions if any made in the original pleadings; (f) Where the proposed amendment relates to a time barred claim and the Court is satisfied that allowing such amendment really sub-serves the cause of justice and avoids further litigation." He further contended as follows: 'In the case on hand, the amendment is necessary for determination of the real question in controversy. Further, as it is stated that only on tracing of the Will of late Bheem Rao, on 19.08.2017, the defendants are constrained to seek amendment and as there are no laches on the part of the defendants 15 and 16 in seeking the amendment, the amendment deserves to be allowed.' 9. Per contra, learned counsel for the plaintiffs while supporting the orders of the Court below placed reliance on a decision in Mashetty Venkatesham and Ors. v. Joint Collector and Ors. 2007 (1) ALT 253 . 10. Be it noted that the deceased 1st defendant, who is an advocate and who is participating in the litigation since more than two decades contended throughout that the children of Bheem Rao are co-owners of the joint property; and, he never claimed that late Bheem Rao, his father, executed a Will. In fact, he specifically stated in the former suit that the property is a joint property and as it is not partitioned, he has got rights in the property and the plaintiff, i.e., the deceased 1st plaintiff, has also got right in the property and that his father died intestate in the year 1942. And, in that former suit, perpetual injunction decree was not granted, as a suit for injunction is not maintainable against a co-owner. Even in the present suit, which is filed for partition, the deceased 1st defendant did not state that his father, late Bheem Rao, executed a Will. On his death, the legal heirs of the deceased 1st defendant, defendants 15 and 16 adopted his written statement. Now, when the suit is at the stage of evidence of defendants 15 and 16, they intend to introduce a plea that late Bheem Rao executed a Will in urdu language and that the said Will was traced out, on 19.08.2017, while searching a box. 11. In Peddi Sivaiah and Ors. v. Tekchand AIR 1966 AP 305 , this Court held as follows: "As far as the proposition of law is concerned that in a pending suit the legal representatives who are brought on record are not permitted to take inconsistent pleas or plead what the deceased could not have pleaded, need not be disputed." 12. In T. Krishnama Naidu (died) and Ors. v. T. Muniswamy Naidu (died) and Ors. In T. Krishnama Naidu (died) and Ors. v. T. Muniswamy Naidu (died) and Ors. 2008 (2) ALT 605 , this Court having referred to the earlier decisions in Tekchand (4 supra) and Pujari Chengal Reddy v. Shanta Kumari 1992(1) ALT 340 held that it was totally impermissible for defendants 17 to 19 therein, to plead that there was a partition by metes and bounds when the second defendant himself did not take such a plea. 13. Reverting to the facts of the case, it is to be noted that the legal heirs of the deceased 1st defendant, who stepped into the shoes of the deceased 1st defendant and who adopted the written statement of the deceased 1st defendant, are bound by the stand taken by the deceased 1st defendant and they, at this distance of time cannot take a totally inconsistent and contradictory stand from the one taken by the deceased 1st defendant in his written statement, which they had adopted. 14. In the peculiar facts and circumstances of the case, if the defendants are now allowed to introduce a pleading with regard to the said alleged Will of late Bheem Rao, at this belated stage, and are permitted to take a defence, which is at variance with the defence already taken by the deceased 1st defendant, it would cause prejudice to the plaintiffs, as the former suit was eventually dismissed on the basis that there was no Will and the property is a joint property liable for partition and no injunction can be granted against a co-owner. Further, as per the well settled legal position affirmed in the aforesaid decisions, the legal representatives of the deceased defendant are not entitled to take a defence, which is at variance with the defence already taken by the deceased defendant. Hence, this Court finds that the trial Court is justified in dismissing the petition and that the revision is devoid of merit. 15. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous applications, if any, shall stand closed.