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2019 DIGILAW 304 (AP)

Parsineti Subhashini v. Vedam Krishna Murthy

2019-11-05

D.V.S.S.SOMAYAJULU

body2019
ORDER : D.V.S.S. Somayajulu, J. 1. Both these civil revision petitions are inter related to each other. Hence, both these civil revision petitions are taken up with the consent of both the counsel. 2. CRP. No. 1726 of 2019 is filed against the order dated 01.05.2019 in I.A. No. 832 of 2018 in O.S. No. 80 of 2010 passed by the Principal Senior Civil Judge, Kovvur. 3. CRP. No. 1773 of 2019 is filed against the order dated 01.05.2019 passed in I.A. No. 833 of 2018 in O.S. No. 34 of 2013 passed by the Principal Senior Civil Judge, Kovvur. 4. Heard Sri T.C. Krishnan, learned counsel for the petitioner and Sri Gangirami Reddy, learned counsel for the respondents. 5. The facts which need to be set out at the outset are that there are three suits which are pending in relation to the same property. OS. No. 9 of 2003 is a suit for declaration and recovery of possession. OS. No. 31 of 2007 is a suit filed seeking recovery of a sum of Rs. 1,80,000/- for a period of 36 months. O.S. No. 80 of 2010 is an another suit filed for recovery of a sum of Rs. 1,80,000/- for wrongful use of the property by D.1 and from D.2 to D.4 for a further 36 months. The suits are filed by the owners of the property who are the plaintiffs. The present defendants are the legal heirs of the tenant who was inducted into possession. Since he died reliefs are claimed against the legal heirs. 6. Coming to CRP. No. 1726 of 2019, it arises out of an order passed in I.A. No. 832. I.A. No. 832 is an application filed in the suit to claim a relief of amendment under Order 6 Rule 17 CPC by deleting the words 'first defendant and defendants 2 to 4 from out of the estate of the deceased father' and to add in its place, the words 'defendants'. It is mentioned in this interlocutory application that initially the suit OS. No. 31 of 2007 was filed for recovery of damages, for wrongful use of the property for the period from 01.02.2004 to 31.01.2007 for a period of 36 months. It is mentioned in this interlocutory application that initially the suit OS. No. 31 of 2007 was filed for recovery of damages, for wrongful use of the property for the period from 01.02.2004 to 31.01.2007 for a period of 36 months. In that suit, the original tenant was added as the defendant and after his death, his children were added as the legal heirs and a relief was sought from the legal representatives. This relief as mentioned earlier is limited to the period, 31.01.2007. 7. It is further averred that after the institution of the suit, as the respondents/legal heirs themselves are squatting on the property, relief is sought against the respondents personally for the subsequent period that is from 01.02.2007 to 31.01.2010 (another 36 months). It is mentioned that in view of the fact that in the earlier the suit prayer was for recovery from the estate of the deceased, a similar prayer was made by mistake in the suit. As their claim is directly against the respondents/defendants for squatting on the property, the petitioner wanted the deletion of the words from out of the estate of the deceased and wanted to sue the defendants directly. This was the amendment sought. A counter was filed and the application was opposed, but it was allowed by the impugned order dated 01.05.2019. 8. In CRP. No. 1773 of 2019 also, very similar averments are made with regard to the suit O.S. No. 34 of 2013 which is filed for the period of 36 months commencing from 01.02.2010 to 31.01.2013. In this case also, instead of making a prayer directly against the defendants, the words 'from out of the estate of the deceased' came to be typed. Therefore, the application for amendment was made. This was allowed by the order dated 01.05.2019. 9. In both the matters, learned counsel for the petitioner argued that the application is filed belatedly and after the lapse of so many years. Learned counsel points out that if the typographical error had crept in, the petitioner should have been more diligent in pursuing the matter. He also submits that this submission is without prejudice to his other contentions that no personal decree can be passed against the petitioners and if at all any decree has to be passed, it is only against the estate of the deceased. He also submits that this submission is without prejudice to his other contentions that no personal decree can be passed against the petitioners and if at all any decree has to be passed, it is only against the estate of the deceased. He also points out that after the C.P.C., amendment, unless the Court is satisfied that there is due diligence, the application for amendment should not be allowed. In this case, he submits that there is a clear lack of diligence. The last submission of the learned counsel is that a new cause of action is being introduced. 10. In reply to this, learned counsel for the respondent submits that no error was committed by the lower Court in allowing the application. He argues that one of the purposes of amendment is to prevent multiplicity of proceedings. He also submits that a reading of the plaint would clearly show that what is sought is a personal relief against the defendants directly and not against the estate of the deceased-tenant. Learned counsel submits that what they are seeking to amend is only the prayer portion and that by amending this prayer portion, no prejudice would be caused to the petitioner as neither the evidence nor the pleading, nor the cause of action would change. Learned counsel points out in all fairness that the parties do not bestow full personal attention on the finer points of the plaint etc., and that in all these cases it is the counsel who drafts the plaint. He also submits that the plaintiffs personally cannot be expected to have the legal knowledge or be capable of appreciating the distinction between a prayer for a decree against the estate and a personal decree. Lastly, he submits that in view of the fact that a suit was initially filed against the defendant and he died during the pendency of the suit, a similar error crept into the latter pleadings. He points out that the order passed by the lower Court is a detailed order that considers all the legal submissions also on the matter. 11. This Court after hearing both the learned counsel notices that the order of the lower Court is quite comprehensive and clear. The lower Court considered the judgments that have been cited across the bar by both the learned counsels. 11. This Court after hearing both the learned counsel notices that the order of the lower Court is quite comprehensive and clear. The lower Court considered the judgments that have been cited across the bar by both the learned counsels. A common thread that runs in these matters is the fact that a relief is claimed against the respondents who are squatting the property as per the plaintiffs. Initially, the suit was filed against the father of the present petitioners who are defendants in the suit. As he died, the legal representatives were brought on record and relief was sought against the estate in their hands. Therefore, a similar matter was typed in the subsequent suits which were filed for the next two periods of 36 months each for recovery of the amount from the legal heirs/alleged squatters. 12. As rightly submitted by the learned counsel for the respondent, since legal representatives are now in possession of the property, the plaintiffs will have to claim the damages/mesne profits from them. In the first suit that is filed, the amount was claimed from out of the estate of the deceased/tenant. For the subsequent periods, a relief is claimed only from the persons in actual possession of the property. Whether the relief is to be granted or not is a matter to be determined in the main Case. As rightly pointed out by the learned counsel for the respondent, a reading of the plaint would clearly disclose that the relief is properly claimed in the body of the plaint against the defendants in each of these suits. In the prayer portion, only the words from out of the estate of the deceased etc., were added This Court also concurs with the lower Court that by this amendment, neither the cause of action nor the averments in the plaint are changed and they remain intact. It is only the prayer portion that will be changed. 13. This apart, this Court also finds that there is substantial strength in the submission made by the learned counsel for the respondent on the aspect of due diligence, because the parties are not actually expected to go into the final points. As rightly contained by him, it is the lawyer, who made a mistake in this matter and not actually the client. As rightly contained by him, it is the lawyer, who made a mistake in this matter and not actually the client. Therefore, the aspect of due diligence on the part of the party would have to be viewed in this perspective in the peculiar facts and circumstances of this case. Neither the body of the plaint, nor the substance of the plaint, nor the cause of action change and as observed by the Court, trial is not yet commenced, therefore the issue of joint or several liability is a matter which can be decided during the course of the trial. The matter was reopened and both the learned counsels agreed that except for filing of an affidavit in lieu of chief examination is one suit long ago; nothing else happened. Hence, the issue of 'due diligence' is not of importance in these matters presently. 14. This Court does not find any error in the impugned orders Accordingly, the orders dated 01.05.2019 In IA Nos. 832 and 833 of 2018 are confirmed. 15. Both the Civil Revision Petitions are dismissed. No order as to costs. 16. As a sequel, the miscellaneous applications, if any pending, shall stand closed.