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2019 DIGILAW 198 (AP)

P. Veerraghavulu v. Parla Venkanna

2019-08-21

G.SHYAM PRASAD

body2019
ORDER : G. Shyam Prasad, J. 1. This revision is arising out of the order, dated 26.2.2018 passed in IA No. 216 of 2018 in OS No. 140 of 2011 on the file of the Principal Junior Civil Judge, Rajamahendravaram. 2. The revision petitioners are the plaintiffs who have filed OS No. 140 of 2011 on the file of Principal Junior Civil Judge, Rajamahendravaram for grant of permanent injunction restraining the respondents from interfering with the peaceful possession and enjoyment of the plaint schedule path way. 3. The revision petitioners have filed IA No. 279 of 2011 under Order 39 Rule 1 of CPC in the above suit for grant of interim injunction, and IA No. 216 of 2018 under Order VI Rule 17 CPC for amendment of plaint. The amendment sought in plaint to add the Paragraph 7(a) after the Paragraph 7 in the plaint which reads as under: "7(a) the defendants in and around the month of May, 2011 constructed compound wall by abstracting the plaint schedule cart way at E and F points taking advantage of their strength and plaintiffs weakness. The plaintiffs could not resist such illegal effort made by the defendants and therefore the plaintiffs lost their egress and ingress to reach Rajaveedhi through A, B, C, D cart way, Pending suit, hence the plaintiffs are entitled for mandatory injunction to remove the obstructions; made by the defendants at E and F points." 4. The case of the petitioners is that they have filed a suit for permanent injunction against the respondents, and for interim injunction filed IA No. 279 of 2011. The Trial Court granted ex parte injunction orders which were subsequently made absolute. It is the further case of the plaintiff that the respondents with political influence forcibly constructed a compound wall obstructing the plaint schedule path way at point E & F knowing fully that the Court has already granted injunction over the said path way. The plaintiffs are unable to reach ABCD cart way due to construction of wall at E and F. Therefore the petitioners have filed an application seeking for amendment of plaint to add the relief of mandatory injunction for removing the obstruction made by the respondents at E and F points. 5. The respondents have filed their counter in the said application denying all the material allegations in the petition. 5. The respondents have filed their counter in the said application denying all the material allegations in the petition. They have stated that the photographs filed by the petitioners would show that the respondents have constructed the wall in the month of May, 2011 at E and F point, and the said wall was in existence even by the date of filing of the suit. It is further stated that the respondents have taken a plea in their written statement that the plaint plan was incorrect as the material facts have been suppressed by the petitioners in respect of the alleged passage ABCD. It is further stated that there was no proper explanation as to why the petitioners did not take appropriate action at the relevant time and filing the present petition after lapse of 7 years. It is further stated that the petition is barred by limitation as such it cannot be allowed. The proposed amendment would change the cause of action for filing the suit, therefore the petition is liable to be dismissed. 6. The Trial Court on consideration of the submissions made by both the Counsel dismissed the petition filed for amendment of plaint as the amendment completely changes the nature of the suit, which prejudices the rights of the defendants. 7. Heard the arguments of the learned Counsel for the petitioners and the respondents. 8. The point that arises for consideration in this case is: Whether the petitioners are entitled for proposed amendment in view of the provision under Order VI Rule 17 CPC? 9. The learned Counsel for the respondents argued that the application filed by the revision petitioners under Order VI Rule 17 of CPC for amendment of plaint was dismissed by the Trial Court on the ground that it changes the nature of cause of action. 10. On consideration of the submissions of both the Counsel and looking into the counter filed by the respondents before the trial Court, it is obvious that the respondents had taken a plea in the counter that at point E and F, the wall was already constructed prior to the filing of the suit in the month of May, 2011. The said fact of construction of wall can be seen from the photographs filed by the petitioners. 11. The said fact of construction of wall can be seen from the photographs filed by the petitioners. 11. The contention of the revision petitioners is that after filing of the suit the respondents have constructed the wall causing obstruction to the path way. Therefore the petitioners have filed the petition for amendment of plaint. The amendment was to add the relief of mandatory injunction. 12. In fact, there are disputed questions of fact in this matter. According to the petitioners the wall was constructed during pendency of the suit, whereas the respondents have contended that the wall was already in existence at E and F point even prior to filing of the suit. Originally the suit was filed for ingress and aggress through ABCD cart way. Now the amendment is sought for adding the point E and F which are said to be connected with the cart way ABCD. 13. In this regard in Para 7 of the order, the Trial Court has observed that as per the version of the petitioners the said constructions were made during summer vacation of 2011 whereas the present application for amendment is filed on 6.2.2018 i.e., after lapse of 7 years. The Trial Court held that the petitioners are not diligent enough to prosecute their case, therefore they are not entitled for amendment of the plaint. 14. Even if the observations of the Trial Court in Para 7 of the order are taken into consideration the constructions were made during summer vacation of 2011. The petitioners have filed an application for amendment of their pleadings on 6.2.2018 in view of the subsequent events that have taken place during the pendency of the trial of the suit, the dispute was in respect of the plaint schedule cart way ABCD. 15. In Andhra Bank v. ABN Amro Bank N.V. and others, 2007 (5) ALD 37 (SC) : AIR 2007 SC 2511 , it was observed that the delay is not a ground for refusal of prayer for amendment of written statement. The question to be considered by the Court is whether such amendment would be necessary for decision of the real controversy between the parties in a suit. 16. The question to be considered by the Court is whether such amendment would be necessary for decision of the real controversy between the parties in a suit. 16. In the instant case also the question as to whether the construction was made during pendency of the suit or the construction was already there prior to filing of the suit is the question of fact that cannot be gone into in a petition filed for amendment of plaint. 17. If the petitioners admit that there was a construction in the month of May, 2011, there was a delay of 7 years in filing the application for amendment of plaint. The suit was of the year 2011, and trial has been commenced. To resolve the disputes once for all between the parties, it is appropriate to permit the petitioners to amend the plaint. The amendment would be necessary for deciding the real controversy between the parties in the suit. There is no change of cause of action. The dispute is in respect of ingress and egress through ABCD cart way. The E and F points are said to be in existence even as per the version of defendants by the date of filing of the suit. In that case, there is no change of cause of action. If the E and F are the points where the wall was constructed was causing obstruction of the cart way to ABCD path way even then the plaint has to be amended. To resolve the real controversy in the suit the amendment of plaint is necessary. 18. With the above observations, the civil revision petition is allowed setting aside the order passed by the Trial Court and the petitioners are directed to carry out the amendment in their plaint and the Trial Court shall proceed with the trial and dispose of the case expeditiously. No costs. 19. Miscellaneous petitions, if any pending in this revision shall stand closed.