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2019 DIGILAW 346 (AP)

Kota Sambasiva Rao v. Kandepu Anasurya

2019-11-29

M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the unsuccessful 2nd respondent/2nd defendant assailing the order, dated 19.07.2019, passed in IA 188 of 2019 in O.S. No. 153 of 2014 on the file of the Court of the learned Senior Civil Judge, Mangalagiri. 2. I have heard the submissions of the learned counsel appearing for the revision petitioner/2nd defendant ('2nd defendant', for brevity); and, of the learned counsel for the 1st respondent/plaintiff ('plaintiff, for brevity). I have perused the material record. 3. From the pleadings & submissions, the following facts and aspects are perceptible: 'The plaintiff instituted the suit against the defendants, that is, her father and brother, for partition claiming a 1/3rd share in the plaint schedule properties. During the pendency of the suit, the 1st defendant/father died. An application in I.A. No. 1531 of 2014 is filed under Order VI Rule 17 read with Sections 94 and 151 of the Code of Civil Procedure, 1908, ('Code', for short) seeking amendment of the plaint to incorporate a pleading that the 1st defendant (father) died intestate; and, that on the death of the 1st defendant (father), the shares of the plaintiff and the 2nd defendant in the plaint schedule property enlarged into a half share each and to permit the plaint to be amended accordingly. The said application was allowed, on 29.06.2015, and leave is granted to carry out the amendment of the plaint. Thereafter, for various reasons, the amendments are not carried out in the plaint. Subsequently, the affidavit in lieu of examination in chief of the plaintiff is filed into Court incorporating the proposed amendment though the plaint was not amended as per the leave granted to carry out the amendment of the plaint. The 2nd defendant objected for filing such an affidavit [in lieu of examination in chief] with the proposed amendment as the amendments that were permitted are not incorporated in the plaint and as the contents of the chief examination affidavit are contrary to the pleadings in the original [unamended] plaint. The 2nd defendant also filed an application to eschew from the said chief affidavit, the averments related to the proposed amendments, which are not carried out in the plaint. The said application was dismissed by the trial Court. The 2nd defendant also filed an application to eschew from the said chief affidavit, the averments related to the proposed amendments, which are not carried out in the plaint. The said application was dismissed by the trial Court. Aggrieved thereof, the 2nd defendant filed a revision viz., C.R.P. No. 7670 of 2018 before this Court; and, this Court by an order, dated 11.06.2019, allowed the said revision. Thereafter, the plaintiff filed the subject interlocutory application to extend time to carry out the amendment of the plaint and accord permission to amend the plaint as per the leave granted vide orders passed in I.A. No. 1531 of 2014. The said application was resisted by the 2nd defendant by filing a counter. However, overruling the objections, the trial Court allowed the said petition of the plaintiff with costs and extended time and permitted to carry out the amendment of the plaint as per leave earlier granted. Aggrieved thereof, the 2nd defendant is before this Court.' 4. The case of the 2nd defendant is this: 'The amendments proposed in the application are to be carried out normally within the time limit mentioned in the order of the Court granting leave; further, in the absence of any such time limit mentioned in the said order, the permitted amendments have to be carried out within fourteen days from the date of passing of the order permitting the amendment of the pleading. However, in the case on hand, the amendment of the plaint was not carried out. Order VI Rule 18 of the Code lays down that such permitted amendments of the pleadings are required to be carried out by a party, who has obtained leave to amend his pleadings, within the time granted therefor and if no time was specified then within fourteen days from the date of passing of the order. The consequence of failure to amend the pleadings within the period specified therein as laid down in Order VI Rule 18 of the Code is that the party shall not be permitted to amend its pleadings thereafter unless the time is extended by the Court. Even the interlocutory application filed seeking extension of time to carry out amendments is not supported by an affidavit of the plaintiff; and, it is only supported by an affidavit filed by the counsel. Even the interlocutory application filed seeking extension of time to carry out amendments is not supported by an affidavit of the plaintiff; and, it is only supported by an affidavit filed by the counsel. In the said circumstances, the trial Court ought not to have allowed the subject interlocutory application. 5. In support of the contentions, learned counsel for the 2nd defendant placed reliance on the following decisions: (i) Union of India v. Pramod Gupta (dead) by LRs and others (2015) 12 SCC 1 : 2005 (6) ALT 44.4 (DN SC): (ii) Pratap Gangaiah Setty and others v. Pratap Veeraiah Setty and another (2) A.S. No. 469 of 1997, decided on 31.07.2018 (High Court, Hyderabad) 6. Per contra, learned counsel for the plaintiff, while supporting the impugned order, contended as follows: The plaintiff suffered ill health and was at Chennai; therefore, though leave was granted, the amendment of the plaint could not be carried out. The trial Court is having power to extend the time for carrying out the amendments of pleadings as envisaged under Order VI Rule 18 of the Code. The proposed amendments are necessary to effectively and: completely adjudicate the lis and give a quietus to the dispute once and for all. In the facts & circumstances of the case, the order impugned does not warrant interference. 7. I have given earnest consideration to the facts & submissions. 8. Having regard to the nature of the controversy, it is necessary to refer Order VI Rule 18 of the Code, which reads as under: '18. Failure to amend the order:- If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time extended by the Court.' The provision of law lays down that the party who obtained leave has to carry out amendments either within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order. However, the provision also postulates that if time is extended by the Court, the amendments of the pleadings can be carried out within the extended time. In deed in the decision in Union of India v. Pramod Gupta (2015) 12 SCC 1 : 2005 (6) ALT 44.4 (DN SC) (supra) relied upon by the learned counsel for the 2nd defendant, the Supreme Court noted that there is no dispute that such an order extending time as specified in Order VI Rule 18 of the Code has not been passed in the cited case. But in the case on hand, the subject interlocutory application, which is filed for extension of time, was allowed by the trial Court. Therefore, the two decisions relied upon by the learned counsel for the 2nd defendant are not helpful to advance the case of the 2nd defendant. 9. Be it noted that the suit is filed for partition. The plaintiff and the 2nd defendant are brother & sister. The 1st defendant, who is their father, died during the pendency of the suit. On his intestate death, which is not in dispute, their shares enlarged; and, now according to the plaintiff, she and the 2nd defendant are entitled to a half share each in the plaint schedule property. As per the settled legal position, a Court can take notice of subsequent events and mould the relief. In that view of the matter, even in the absence of amendment of the plaint, the plaintiff would be entitled to canvass that she is entitled to a larger share than that was originally claimed in the suit. In that view of the matter, this Court finds that if the plaintiff is permitted to carry out the amendment as per the leave already granted, no prejudice would be caused to the 2nd defendant, more particularly when the law permits and empowers the trial Court to extend time. In this backdrop of facts of the case & the nature of controversy and the legal position obtaining, this Court finds, on careful examination, that the trial Court exercised the discretion judiciously and that the trial Court is justified in extending time for carrying out amendment of the plaint as per the leave earlier granted. 10. In this backdrop of facts of the case & the nature of controversy and the legal position obtaining, this Court finds, on careful examination, that the trial Court exercised the discretion judiciously and that the trial Court is justified in extending time for carrying out amendment of the plaint as per the leave earlier granted. 10. Before parting it is to be noted that the learned counsel for the 2nd defendant contended that the plaintiff is at fault in not carrying out the permitted amendment of the plaint within time, therefore, while extending time sought for by the plaintiff and allowing the subject interlocutory application, the trial Court ought not to have mulcted the 2nd defendant with costs. The said contention of the 2nd defendant merits consideration. Hence, this Court holds that the impugned order, in so far as imposing costs on the 2nd defendant is liable to be set aside. 11. In the result, the Civil Revision Petition is dismissed accordingly confirming the order of the trial Court allowing IA 188 of 2019 in so far as extending time for carrying out the amendment of the plaint as per leave already granted by the Court below to the plaintiff, however, setting the said order in so far as mulcting the 2nd defendant with costs. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed in the light of this final order.