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2019 DIGILAW 151 (AP)

S. Syed Saheb v. V. Mahaboob Bee

2019-07-25

T.RAJANI

body2019
ORDER : T. Rajani, J. 1. The civil revision petition is filed assailing the order dated 4.5.2018 by virtue of which the learned Junior Civil Judge, Pakala, dismissed IA No. 106 of 2018 in OS No. 43 of 2012 filed by the petitioners/plaintiffs under Order VI Rule 17 CPC read with Rule 28 of Civil Rules of Practice, seeking to amend the plaint. 2. Heard learned Counsel for the petitioners. None appeared for the respondents despite service of notice. 3. The amendment sought for is, to add relief of declaration. The suit is filed for permanent injunction. The lower Court dismissed the petition considering that there was no due diligence on the part of the petitioners. 4. Learned Counsel for the petitioners submits that the petition was filed prior to commencement of trial and hence, as per Order 6 Rule 17 CPC, amendment petition shall be allowed. Order 6 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 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 inspite of due diligence, the party could not have raised the matter before the commencement of trial." Though it is not mandatory to allow the petition if filed prior to trial, it would not be proper to hold that there is lack of diligence even when the petition is filed prior to commencement of trial. The question of due diligence arises for consideration only when the petition is filed after commencement of trial. On that count, the finding of the lower Court, that there is no due diligence need to be set aside. 4A. It is further seen from the order that the Court below dismissed the petition also holding that the nature of the suit will be changed. On that count, the finding of the lower Court, that there is no due diligence need to be set aside. 4A. It is further seen from the order that the Court below dismissed the petition also holding that the nature of the suit will be changed. In that regard, learned Counsel for the petitioners relied on the judgment of the High Court of Judicature, for the States of Telangana & Andhra Pradesh, at Hyderabad, in Vantipalli Surya Venkata Satya Prasad v. Gangumalla Suryakantham, 2017 (1) ALD 619 , wherein, at Paragraph 11, it was observed as follows: "The question whether the suit for perpetual injunction can be converted into a suit for declaration of title and recovery of possession has been considered by the Supreme Court of India in the above judgment. The Apex Court held that by permitting the amendment of the plaint as sought by the plaintiff, the basic structure of the suit is not altered and if it was open to the plaintiff to file a fresh suit, there is no reason why the same relief, which could be prayed for in a new suit, cannot be permitted to be incorporated in the pending suit. It observed that allowing the amendment would curtail multiplicity of proceedings. It held that mere delay in-seeking amendment would not be a ground for refusing the amendment if the amendment is sought prior to the commencement of the trial and such amendments should be allowed liberally." 4B. In view of the above decision, the order under revision cannot be sustained. 5. In the result, the civil revision petition is allowed and the order under revision is set aside. No costs. 6. Miscellaneous petitions pending consideration if any in the civil revision petition shall stand closed.