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2019 DIGILAW 81 (AP)

Aditya Motors v. Dogiparthi Venkata Satish

2019-06-12

M.SEETHARAMA MURTI

body2019
ORDER : M. Seetharama Murti, J. 1. These civil revision petitions arise out of five orders separately made, on 28.3.2018, by the learned IV Additional District Judge, Guntur in IA Nos. 237, 240, 241, 239 and 238 of 2018 in OS No. 118 of 2012 filed by the plaintiffs for amendment of pleadings. By the said orders, all the said petitions are allowed. In view of the commonality and identity of subject-matter of all the interlocutory applications, which are allowed, these CRPs are being disposed of by this common order. 2. I have heard the submissions of Sri S.S. Prasad, learned Senior Counsel, representing Ms. C. Sindhu Kumari, learned Counsel appearing for the revision petitioner-unsuccessful 1st respondent-1st defendant ['1st defendant', for brevity] and of Smt. V. Dyumani, learned Counsel appearing for the respondents 1 & 2-plaintiffs ['plaintiffs', for brevity]. I have perused the material record. 3. To begin with, it is to be noted that the plaintiffs instituted the suit against the 1st defendant and three others for eviction from the plaint schedule premises and recovery of vacant possession of the same, recovery of money towards use & occupation and other reliefs. The 1st defendant is also resisting the suit. During the pendency of the suit, the plaintiff filed the above said interlocutory applications in the suit and also in the pending interlocutory applications in the suit. 4. The amendments sought insofar as the plaint read as under: (a) In the cause title and in the entire suit i.e., OS No. 118/2012 in the particulars of the 2nd plaintiff the words i.e., "Rep., by Authorized agent D.V. Satish" have to be removed and need to be substituted as "Rep., by GPA holder D.V. Satish i.e., the 1st plaintiff" Wherever it is required in the entire suit. (b) In the cause title and in the entire suit i.e., OS No. 118/2012 in the particulars of the 1st defendant has to be removed and need to be substituted the following where ever it is required: "Pilla Durga Prasad, S/o. Varahala Rao, Hindu, Aged about 46 years, Rep., of Aditya Motors D. No. 5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowmya Theatre and Sai Ram Theatre, Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927." (c) The words "Associate Auto Service (P) Ltd." has to be removed where ever appeared in the entire suit i.e., in OS No. 118/2012 and need to be substituted as: "M/s. Associated Auto Service Pvt. Ltd." 4A. The amendments sought in the various Interlocutory Applications viz., 240, 241, 239 and 238 of 2018 pending in the suit respectively read as under: IA No. 240 of 2018 (a) In the cause title, the particulars of the 1st respondent/defendant in affidavit and petition and in schedule of the petition of IA No. 3076/2016 in OS No. 118/2012 has to be removed and need to be substituted the following: "Pilla Durga Prasad, S/o. Varahala Rao, Hindu, Aged about 46 years, Rep., of Aditya Motors D.No. 5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowmya Theatre and Sai Ram Theatre, Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927." (b) The words "Associate Auto Service (?) Ltd." has to be removed where ever appeared in IA No. 3076 of 2016 in OS No. 118/2012 and need to be substituted as: "M/s. Associated Auto Service Pvt. Ltd." IA No. 241 of 2018 (a) In the cause title and in the entire affidavit and petition i.e., IA No. 1826/ 2017 in OS No. 118/2012 in the particulars of the 1st defendant has to be removed and need to be substituted the following where ever it is required: "Pilla Durga Prasad, S/o. Varahala Rao, Hindu, Aged about 46 years, Rep., of Aditya Motors D.No. 5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowmya Theatre and Sai Ram Theatre, Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927." (b) The words "Associate Auto Service (P) Ltd." has to be removed where ever appeared in the entire affidavit and petition i.e., IA No. 1826/2017 in OS No. 118/2012 and need to be substituted as: "M/s. Associated Auto Service Pvt. Ltd." IA No. 239 of 2018 (a) In the cause title, the particulars of the 2nd petitioner/plaintiff the words "Rep., by GPA holder D.V. Sathis i.e., the 1st plaintiff' have to be added after the 2nd line in affidavit and petition of IA No. 1013/2016 in OS No. 118/2012. (b) In the cause title, the particulars of the 1st respondent/defendant in affidavit and petition of IA No. 1013/2016 in OS No. 118/2012 has to be removed and need to be substituted the follows: "Pilla Durga Prasad, S/o. Varahala Rao, Hindu, Aged about 46 years, Rep., of Aditya Motors D.No. 5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowmya Theatre and Sai Ram Theatre, Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927." (c) The words "Associate Auto Service (P) Ltd." has to be removed where ever appeared in IA No. 1013 of 2016 in OS No. 118/2012 and need to be substituted as: "M/s. Associated Auto Service Pvt. Ltd." (d) The words in Para No. 2 of affidavit i.e., "Aditya Motors, Rep., by P. Durga Prasad" has to be removed and need to be substituted as: "Pilla Durga Prasad, Rep., of Aditya Motors" (e) The words "1st defendant company" has to be removed where ever appeared in the IA No. 1013 of 2016 in OS No. 118/ 2012 and need to be substituted as: "1st defendant" IA No. 238 of 2018 (a) In the cause title, the particulars of the 2nd petitioner/plaintiff the words "Rep., by GPA holder D.V. Satish i.e., the 1st plaintiff' have to be added after the 2nd line in affidavit and petition of IA No. 1012/2016 in OS No. 118/2012. (b) In the cause title, the particulars of the 1st respondent/defendant in affidavit and petition of IA No. 1012/2016 in OS No. 118/2012 has to be removed and need to be substituted the follows: "Pilla Durga Prasad, S/o. Varahala Rao, Hindu, Aged about 46 years, Rep., of Aditya Motors D.No. 5-7/8-56/76A, Rajiv Sarma Nagar, Behind Sowmya Theatre and Sai Ram Theatre, Vijayawada Urban 520001, AP, Aadhar No. 8815 9573 6927." (c) The words in Para No. 3, 1st line 6th word in Para No. 3, 7th line 1st word, in Para No. 3, 9th line 5th word i.e., "respondents/defendants" of affidavit has to be removed and need to be substituted as: "1st respondent/1st defendant" (d) The words in Para No. 3, 11th line 5th word i.e., "they" of affidavit has to be removed and need to be substituted as: "He" (e) The words in Para No. 5, 4th line the words 2, 3 and 4 i.e., "admitted rent and" of affidavit has to be removed. 5. 5. The case of the plaintiffs in support of the afore-stated requests, in brief, is this: The suit is instituted for eviction & recovery of vacant possession of the plaint schedule property and for recovery of money. The 1st defendant is the tenant. The 2nd defendant company was inducted by the 1st defendant into the suit schedule property, without the permission of the plaintiffs. The 1st defendant initially remained ex parte in the suit. Later, the ex parte order is set aside. The defendants are resisting the suit. In the affidavit filed in support of the application filed for setting aside the ex parte order, it is stated that the 1st defendant is a proprietary concern; however, no documentary proof is filed. In the lease deed entered into between the parties, the 1st defendant was described as Aditya Motors, Rep., by P.D. Prasad. The suit is filed by showing the 1st defendant with the same description. Until counters are filed in the interlocutory applications, the plaintiffs are not aware that the 1st defendant is a proprietary concern. Further, the Typist committed certain mistakes while typewriting the plaint and the other pleadings. In the pleadings it is stated that 2nd plaintiff is 'Rep., by authorised agent D.V. Satish' instead of stating as 'Rep., by GPA holder D.V. Satish i.e., the 1st plaintiff. Hence, the description of the 2nd plaintiff is to be amended as above wherever it occurred in the pleadings. Further, as it has come to the notice of the plaintiffs that the 1st defendant is a proprietary concern, it has become necessary to amend the description of the 1st defendant suitably in the pleadings. Further, as the description of the 2nd defendant was mistakenly mentioned as 'Associate Auto Service (P) Ltd.,' it has to be amended as 'M/s. Associated Auto Services Pvt. Ltd.,' wherever it occurred in the pleadings. Therefore, for seeking the above and other necessary amendments the plaintiffs filed the subject interlocutory applications. 6. The case of the 1st defendant is this :--"The averments in the affidavits filed in support of the applications are not true. The allegations that the 1st defendant is the tenant and the 2nd defendant is inducted into the property by the 1st defendant and that the 1st defendant is not paying rents are all false. 6. The case of the 1st defendant is this :--"The averments in the affidavits filed in support of the applications are not true. The allegations that the 1st defendant is the tenant and the 2nd defendant is inducted into the property by the 1st defendant and that the 1st defendant is not paying rents are all false. The allegations that till the filing of the counters in the interlocutory applications, the plaintiffs are not aware that the 1st defendant is a proprietary concern and that alongwith the application to set aside the ex parte order the 1st defendant has not filed any documents are not true. The burden is on the plaintiffs to ascertain the particulars of the parties/defendants. The lease deed itself contains recitals that Aditya Motors, Guntur, is represented by its Proprietor-P.D. Prasad. The allegations made by the plaintiffs are false and misleading. The plaint is already permitted to be amended by allowing IA No. 3117 of 2016. Hence, the present petitions are not maintainable. The present amendments were not sought earlier and all the present petitions are filed with mala fide intentions. In the affidavit it is stated that the Typist of the Advocate committed certain mistakes. The plaintiffs are required to verify the pleadings before filing the same into Court. They are negligent and careless. The plaintiffs have not followed the earlier orders passed in IA No. 3117 of 2016 by the Trial Court. They are in the habit of filing petitions after petitions. They are not entitled to claim the reliefs in the present interlocutory applications. The suit itself is not maintainable. The petitions are filed to drag on the matter.' 7. At the hearing, learned Senior Counsel appearing for the revision petitioner-1st defendant, while reiterating the case of the 1st defendant, which is extracted supra, contended as follows :--'The plaintiffs are very much aware that the 1st defendant is a proprietary concern. In the impugned order, the Trial Court erroneously observed that the reliefs sought for are all borne out by record. The reasoning of the Trial Court is erroneous. The amendment of the plaint is being sought highly belatedly. After trial has commenced the pleadings cannot be permitted to be amended. The affidavit in lieu of examination in chief was filed in the year 2016. By reason of the proposed amendments, the entire nature and character of the suit is being totally altered. The amendment of the plaint is being sought highly belatedly. After trial has commenced the pleadings cannot be permitted to be amended. The affidavit in lieu of examination in chief was filed in the year 2016. By reason of the proposed amendments, the entire nature and character of the suit is being totally altered. Under the garb of amendment, the plaintiffs are seeking to implead altogether a new defendant as 1st defendant in the suit. The original description of the 1st defendant and the description of the proposed 1st defendant are totally different. The amendment is intended to fill up the gaps in the pleadings and get over the defects. Such amendments cannot be permitted after lapse of several years from the date of institution of the suit. The Court below has not examined whether there is any cause of action for the plaintiffs against the newly described defendant and whether the plaintiffs would be entitled to seek the reliefs against that defendant, who is being sought to be added by means of the proposed amendment. Hence, the petitions may be dismissed.' 8. Per contra, learned Counsel for the plaintiffs, while supporting the orders of the Court below, contended as follows :-- 'The amendments sought are only as regards the description of the representative of the 2nd plaintiff and the description of the 1st defendant as in the original plaint it is not mentioned that the person representing the 2nd plaintiff is a GPA holder and that the 1st defendant is a proprietary concern. Insofar as the 2nd defendant the prefix 'M/s.' is not added before the name of the 2nd defendant; further, while mentioning the 2nd defendant the word 'Associate' is wrongly typed instead of as 'Associated'. The aforesaid and other amendments sought for are only trivial and do not change the identity of the parties. Therefore, the proposed amendments do not change the nature and character of the suit as being falsely contended by the 1st defendant. Though affidavit in lieu of examination in chief is filed, trial has not commenced. For allowing the amendments, which are sought by the plaintiffs, the Court has got ample power. It has become necessary to seek amendments of the descriptions of the 2nd plaintiff and the defendants 1 and 2 to avoid any complexities and difficulties at the time of execution of decree that may ultimately be granted. For allowing the amendments, which are sought by the plaintiffs, the Court has got ample power. It has become necessary to seek amendments of the descriptions of the 2nd plaintiff and the defendants 1 and 2 to avoid any complexities and difficulties at the time of execution of decree that may ultimately be granted. The Trial Court is justified in allowing the applications for amendments of the pleadings of the plaintiffs.' 9. I have given earnest consideration to the facts and submissions. 10. At the outset, be it noted that learned Counsel for the plaintiffs submitted as follows :--'CRP No. 4155 of 2018 arises out of the order passed in IA No. 239 of 2018. The said IA was filed for amendment of pleadings in IA No. 1013 of 2016 filed under Order XII Rule 6 of the Code of Civil Procedure, 1908 ['the Code', for brevity] for granting a decree on admissions. Similarly, CRP No. 4280 of 2018 arises out of IA No. 241 of 2018. The said IA was filed for amendment of pleadings in IA No. 1826 of 2017 filed under Order XI Rule 1 of the Code requesting to grant leave to serve interrogatories on the defendants. Though both the interlocutory applications seeking amendments viz., IA Nos. 239 and 241 of 2018 are allowed by the Trial Court and the said orders of the Trial Court in the said IAs are impugned in CRP Nos. 4155 of 2018 and 4280 of 2018, the main interlocutory applications viz., IA Nos. 1013 of 2016 and 1826 of 2017 were not pressed and are withdrawn by the plaintiffs, on 24.4.2018, and that the necessity of amending the pleadings in the said interlocutory applications is obviated for the said reason; and, hence, the said CRPs have become infructuous; in that view of the matter, CRP Nos. 4155 of 2018 and 4280 of 2018, which have become infructuous, are liable for dismissal accordingly.' 11. Dealing with the merits of the matters, there is no need to restate the facts and contentions, which are already adverted to supra, in detail. 4155 of 2018 and 4280 of 2018, which have become infructuous, are liable for dismissal accordingly.' 11. Dealing with the merits of the matters, there is no need to restate the facts and contentions, which are already adverted to supra, in detail. The case of the plaintiffs insofar the description of the 1st defendant is that the 1st defendant is initially described in the plaint and in the interlocutory applications as 'Adirya Motors Rep., by P.D. Prasad' and that later the plaintiffs realised that the said concern is a proprietary concern and; therefore, it has become necessary to seek amendment of the description of the 1st defendant wherever it occurred. The law is well settled that a proprietary concern is not a legal entity and when an individual carries on business in a name or style other than his own name, he cannot sue in the trading name. The above proposition of law finds support from the decision of the Supreme Court in Shankar Finance and Investments v. State of Andhra Pradesh and others, AIR 2009 SC 422 , wherein the Supreme Court held as follows: "As contrasted from a company incorporated under the Companies Act, 1956 which is a legal entity distinct from its shareholders, a proprietary concern is not a legal entity distinct from its proprietor. A proprietary concern is nothing but an individual trading under a trade name. In civil law where an individual carries on business in a name or style other than his own name, he cannot sue in the trading name but must sue in his own name, though others can sue him in the trading name. Therefore, if the appellant in this case had to file a civil suit, the proper description of plaintiff should be "Atmakuri Sankara Rao carrying on business under the name and style of M/s. Shankar Finance & Investments, a sole proprietary concern." 12. In the decision in M/s. Bhagawati Vanaspati Traders v. Senior Superintendent of Post Offices, AIR 2015 SC 901 , the facts reflect that the postal authorities having permitted M/s. Bhagawati Vanaspati Traders to purchase the NSC in the year 1995 raised a challenge of irregularity after its maturity in the year 2001 when the appellant-sole proprietor of the said concern wanted substitution of the said name with his name. A contention was advanced by the learned Counsel for the appellant that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual and that truthfully only one individual is the owner of a sole proprietorship concern and as such, the name of the sole proprietorship concern, can again be substituted with the name of the sole proprietor and that if that is allowed, the NSC purchased by the appellant would strictly conform to the mandate of law and that it makes no difference whether the individual's name, or the proprietorship's name is recorded while purchasing an NSC and it was pointed out, that if the respondent was not agreeable in accepting the trade name, the respondent ought to have corrected the NSC by substituting the name of M/s. Bhagwati Vanaspati Traders with that of its sole proprietor, namely, B.K. Garg. In the said factual background, adverting to the said contentions, the Supreme Court held as follows: "We find merit in the second contention advanced at the hands of the learned Counsel for the appellant. It is indeed true, that the NSC was purchased in the name of M/s. Bhagwati Vanaspati Traders. It is also equally true, that M/s. Bhagwati Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly un-understandable. The postal authorities having permitted M/s. Bhagwati Vanaspati Traders to purchase the NSC in the year 1995, could not have legitimately raised a challenge of irregularity after the maturity thereof in the year 2001, specially when the irregularity was curable." Having regard to the facts and circumstances and the legal position obtaining, this Court finds that the amendment being sought for by the plaintiffs herein insofar as the description of the 1st defendant can be permitted in the interests of justice. 12A. 12A. Coming to the amendment of the description of the 2nd defendant (Associate Auto Service (P) Ltd.), the amendment relates to only prefixing 'M/s.' before the said name of the 2nd defendant company and correcting the typographical mistake by substituting the word 'associated' in the place of the word 'associate'. 12B. Insofar as the amendment related to the description of the 2nd plaintiff, the plaintiff wants to substitute the words 'Rep., by authorized agent D.V. Sathish' with the words 'Rep., by GPA holder i.e., the 1st plaintiff. 13. All the three amendments being sought for by the plaintiffs, on a plain consideration of facts & law, are permissible and that such amendments, if allowed, do not either change the nature & character of the suit or the identity of the parties and that the identities of the parties originally arraigned remain the same. Therefore, none of the contentions of the 1st defendant merit consideration. Hence, all the contentions of the 1st defendant are accordingly rejected. 14. Now what remains is the contention that the amendments are sought belatedly and that the allowing of the amendments is impermissible as per proviso to Order VI Rule 17 of the Code. 15. Admittedly, the applications for amendments of the pleadings are filed after the affidavit of one of the plaintiffs in lieu of examination of chief was filed. Learned Counsel for the 1st defendant contended that as the trial has commenced with the framing of issues and as the amendment of the plaint was being sought after 6 years of the institution of the suit, the plaintiffs are required to establish that despite due diligence they could not have raised the matter before the commencement of the trial and that the plaintiffs failed to fulfill the condition and hence, the Trial Court committed an error in allowing the applications for amendments filed by the plaintiffs. Learned Counsel for the plaintiffs while reiterating the contentions that the amendments sought are trivial and are essential for smooth execution of the decree in the event the suit stands decreed and that as the amendments sub-serve the ultimate cause of justice and avoid multiplicity of litigation, the Trial Court is justified in permitting the amendments sought for by the plaintiffs. 16. On this aspect it is profitable to first refer to the legal position obtaining. 16A. 16. On this aspect it is profitable to first refer to the legal position obtaining. 16A. In J. Samuel and others v. Gattu Mahesh and others, (2012) 2 SCC 300 , the Supreme Court while dealing with an application for amendment had held as follows: "In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code." 16B. In Rajkumar Gurawara (dead) through LRs. v. S. Sarwagi and Company Private Limited and another, (2008) 1 SCC 364, the Supreme Court having referred to Order VI Rule 17 of the Code had held as follows: "Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendments; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation." 16C. Before proceeding further, it is necessary to refer to the proviso to Order VI Rule 17 of the Code reads as under: "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." 16D. In the decision in Vidyabai v. Padmalatha, (2009) 2 SCC 409 , the Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the Court's jurisdiction to allow an application for amendment is taken away there under unless the conditions precedent therefore are satisfied, and that before allowing amendment, the Court must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial and that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the Court would have no jurisdiction at all to allow the amendment. 16E. In Revajeetu Builders v. Narayana Swamy, (2009) 10 SCC 84 , on an analysis of English and Indian case law, the Supreme Court carved out the following principles which should weigh with the Court while dealing with an application for amendment: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case; (2) Whether the application for amendment is bona fide or mala fide; (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The Supreme Court, however, clarified that the above principles were illustrative and not exhaustive. 16F. The Supreme Court, however, clarified that the above principles were illustrative and not exhaustive. 16F. In Chander Kanta Bansal v. Rajinder Singh, (2008) 5 SCC 117 , the Supreme Court, taking note of the fact that 'due diligence' has not been defined in the Code, referred to the dictionary meaning of 'diligence' which is to the effect that it means careful and persistent application or effort or a continual effort to accomplish something; care; caution; the attention and care required from a person in a given situation, and observed that 'due diligence' means the diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. Reference was also made to 'Words and Phrases' by Drain-Dyspnea (Permanent Edition 13-A) wherein 'due diligence' was defined in law to mean doing everything reasonable and not everything possible. The Hon'ble Supreme Court, therefore, concluded that 'due diligence' would mean reasonable diligence and would mean such diligence as a prudent man would exercise in the conduct of his own affairs. 16G. Further, in the decision in Abdul Rehman and another v. Mohd. Ruldu and others, 2013 (1) ALD 1 (SC), the Supreme Court, having taken note of the above provision of law had laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, inspite of due diligence, the parry could not have raised the matter before the commencement of the trial. In the above decision the Supreme Court reiterated the following proposition: "All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. In the above decision the Supreme Court reiterated the following proposition: "All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties." In the above decision the Hon'ble Supreme Court further referred to the ratio in the decision in Pankaja and another v. Yellapa, AIR 2004 SC 4102 , which runs as follows: "If the granting of amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed." 16H. In Pankaja's case (supra), the facts are as under: As per the case of the plaintiffs, the defendant, in violation of the Court order, had further encroached into the suit property. Therefore, the plaintiffs sought for the amendment of the plaint for seeking the reliefs of declaration of ownership and possession of the said encroached area also. The said application was allowed by the Trial Court. However, the Principal Civil Judge rejected the application for amendment on the ground that the application for amendment was filed at a belated stage. The High Court dismissed the revision on the said ground and also on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court permitted the amendment by allowing the appeals. 16I. In Sampath Kumar v. Ayyakannu and another, 2002 (6) ALD 63 (SC) : (2002) 7 SCC 559 , the facts and ratio are as under: A suit was brought in the year 1988 for perpetual injunction in respect of an agricultural land. Before the commencement of the trial in the year 1999, the plaintiff moved the application for amendment of the plaint alleging that during the pendency of the suit, the defendant had forcibly disposed the plaintiff in the year 1989. On such averments the plaintiff sought for the relief of declaration of title to the suit property and consequential relief of recovery of possession. On such averments the plaintiff sought for the relief of declaration of title to the suit property and consequential relief of recovery of possession. The defendant opposed the application of the plaintiff stating that he had perfected title to the property by adverse possession and that the suit is barred by law of limitation and that a valuable right that had accrued to the defendant is being sought to be taken away by proposed the amendment The Trial Court rejected the application for amendment observing that the appropriate course for the plaintiff was to bring a new suit. The High Court maintained the said order. The Supreme Court while allowing the appeal of the plaintiff had referred to its earlier decisions and had finally held as follows: 8. Rukhmabai v. Lala Laxminarayan and others, (1960) 2 SCR 253 , this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amendment. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and another v. Mamtha Shenoy, 2002 (1) ALD 6 (SC) : AIR 2001 SC 2896 ). 11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed. In North Eastern Railway Aarnn. v. Bhagwan Das, (2008) 8 SCC 511 , held as follows: "Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 , which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." 17. In view of the facts of the instant case, which are already adverted to supra, and the legal position aforestated, it can safely be held that the amendments can be permitted. 18. In view of the facts of the instant case, which are already adverted to supra, and the legal position aforestated, it can safely be held that the amendments can be permitted. 18. Dealing with the contention that the issues are framed based on the pleadings and that the affidavit in lieu of examination of chief of one of the plaintiffs is filed and that therefore the application for amendment is debarred under Order VI Rule 17, it is necessary to refer to the decision in Usha Devi v. Rijwan Ahamd, 2008 (3) ALD 1 (SC) : (2008) 3 SCC 717 . In the said decision, a contention was advanced that the trial of the suit would commence with the settlement of the issues and in support of the said contention that the framing of issues marked the commencement of trial of the suit reliance was placed upon the decision in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji, (2006) 12 SCC 1 . However, while meeting the said contention, the attention of the Supreme Court was invited to the decision of the Supreme Court in Baldev Singh v. Manohar Singh, 2006 (6) ALD 29 (SC) : (2006) 6 SCC 498 , wherein it was held as follows: "Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings." 19. The Supreme Court having referred to a three-Judge Bench decision in Sajjan Kumar v. Ram Kishan, (2005) 13 SCC 89 , held as follows: "Having heard the learned Counsel for the parties, we are satisfied that the appeal deserves to be allowed as the Trial Court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the Trial Court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit." Thus in Usha Devi's case (supra), the Supreme Court, keeping in view of the decision in Sajjan Kumar's case (supra), held as follows: "We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan Kumar's case (supra) and following that decision the prayer for amendment in the present appeal should also be allowed." 20. In the instant case also, issues are only framed and though affidavit in lieu of examination-in-chief is filed, the recording of evidence has not yet commenced. Therefore, in the well considered view of this Court, the facts of present case are akin to the facts of the case in Usha Devi's case (supra) and Sajjan Kumar's case (supra). Hence, this Court is of the considered view that on the ground of mere delay amendments cannot be refused. 21. The ratios in the decisions support the plea of the plaintiffs that an amendment cannot be refused merely on the ground of delay. Even as per the guidance in the decisions of the Supreme Court, an amendment can be permitted if it is intended to determine the real question in controversy and that all amendments, which are necessary for the purpose of determining real questions of controversy between the parties, shall be allowed if such amendments sought for do not change the basic nature of the suit. A change in the description of a party, which does not change the identity of the party, shall not be considered as a change in the nature and character of the suit. A change in the description of a party, which does not change the identity of the party, shall not be considered as a change in the nature and character of the suit. The power of amendment should be exercised in the larger interests of doing full and complete justice between the parties and that all amendments, which are necessary for the purpose of determining the real question in controversy, should be allowed. Further, if the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. The Court has also to consider whether the proposed amendment is intended to determine the real dispute between the parties. The law is well settled that all amendments, which satisfy the two conditions ought to be allowed: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Further, as the refusal of the request seeking amendment does not preclude the plaintiffs from instituting a fresh suit, the refusal of the request leads to multiplicity of the litigation. In the well considered view of this Court, the amendment only relates to correction of description of some of the parties without changing the identity of the parties. Therefore, for all the aforesaid reasons, granting of amendments sought for by the plaintiffs really sub-serves the ultimate cause of justice and avoids further litigation and therefore, the amendments sought for by the plaintiffs deserve to be allowed. Since the dominant purpose of the Rule is to minimize the litigation and to enable the parties to have all the issues relating to one dispute resolved in one suit, the amendments sought for by the plaintiffs can be allowed, in the considered view of this Court. In order to avoid multiplicity of suits, it would be sound exercise of discretion to permit the amendments being sought for in the pending suit. As per the precedential guidance, the well settled rule of practice is not to dismiss the suit automatically but to allow the plaintiffs to make necessary amendments, if the plaintiffs seek to do so. The amendments, even if permitted at this stage, held in setting at rest the dispute between the parties once and for all. As per the precedential guidance, the well settled rule of practice is not to dismiss the suit automatically but to allow the plaintiffs to make necessary amendments, if the plaintiffs seek to do so. The amendments, even if permitted at this stage, held in setting at rest the dispute between the parties once and for all. In view of the ratios in the decisions, which are squarely applicable to the facts of the case, this Court is of the considered view that the amendments sought for by the plaintiffs can be permitted in the facts and circumstances of the case and that, therefore, the orders of the Court below do not brook interference. 22. Before parting, it is necessary to refer to the other decisions relied upon by the learned Senior Counsel appearing for the 1st defendant. 22A. In the decision in K. Raheja Constructions Ltd. v. Alliance Ministries and others, AIR 1995 SC 1768 , the issue is about limitation. The facts of the cited case show that the plaintiffs, having alleged in the plaint that the defendants refused to abide by the terms of the contract, filed a suit for perpetual injunction and then subsequently sought amendment of the plaint for the relief of specific performance. Having regard to the facts and the pleadings, the Supreme Court held that the relief of specific performance cannot be allowed to be added after lapse of 7 years since barred by law of limitation. 22B. In Jagan Nath v. Chander Bhan and others, (1988) 3 SCC 57 , the facts show that the application for amendment of the written statement was filed during the pendency of the appeal preferred by the tenant and that the Tribunal held that the belated amendment could not be permitted. The same was affirmed by the Supreme Court. 22C. The facts of the case in Voltas Limited v. Rolta India Limited, 2014 (3) ALD 14 (SC) : (2014) 4 SCC 516 , show that the issue is as to whether the counterclaim is barred by law of limitation. 22D. In the decision in Mashyak Grihnirman Sahakari v. Sanstha Maryadit, 2013 (4) ALD 175 (SC) : (2013) 9 SCC 485 , the facts disclose that even before the institution of the suit the plaintiffs allegedly came to know about the conveyance deed but the necessary relief was not sought for in the plaint. 22D. In the decision in Mashyak Grihnirman Sahakari v. Sanstha Maryadit, 2013 (4) ALD 175 (SC) : (2013) 9 SCC 485 , the facts disclose that even before the institution of the suit the plaintiffs allegedly came to know about the conveyance deed but the necessary relief was not sought for in the plaint. Hence, the Supreme Court held that the amendment belatedly sought was clearly an afterthought and the amendment was introduced for obvious purpose of averting inevitable consequences. 22E. In Vishwambhar and others v. Laxminarayan and another, 2001 (5) ALD 10 (SC) : (2001) 6 SCC 163 , the facts of the cited case are as follows:-- The plaint was sought to be amended by filing an application for amendment seeking to introduce the prayer for setting aside the sale deeds. However, the 2nd plaintiff attained majority, on 5.8.1975, and the 1st plaintiff on 20.7.1978. Though the suit was filed on 30.11.1980, the prayer seeking to set aside the sale deeds was made in December, 1985. Since Article 60 of the Limitation Act prescribes a period of three years for setting aside a transfer of property made by the guardian of a ward, by the ward, who has attained majority, and as the period is to be computed from the date when the ward attains majority, the suit was held to be barred by law of limitation though the Trial Court considered the amended prayer and decided the suit on that basis. 22F. In State of Madhya Pradesh v. Union of India and another, (2011) 12 SCC 268 , the facts of the cited case are as follows:--'State of Madhya Pradesh filed the Original Suit against the Union of India and another. The suit was filed before the Supreme Court under Article 131 of the Constitution of India. Notifications/Orders issued by the UoI under Section 58(3) and 58(4) of Madhya Pradesh Re-Organization Act, 2000 notifying the date of dissolution of the MP Electricity Board for the undivided State of MP and apportioning its assets, rights & liabilities between the successor electricity Boards for the reorganized States of MP and Chhattisgarh are the subject-matter and a declaration to declare the said notification/order as null and void and that the same are unconstitutional besides other reliefs are sought. In that suit, an application for amendment was filed by the State of Madhya Pradesh seeking amendment to the effect that the above said sections of MRP Act are violative of Article 14 of the Constitution of India. The said application was contested by UoI on merits and on grounds of maintainability, delay and laches. The 2nd defendant (State of Chhattisgarh) opposed the amendment on the ground that no recourse can be permitted to challenge the validity of Central Law under the exclusive jurisdiction of the Supreme Court under Article 131 of the Constitution of India. It is also contended that on one hand the plaintiff is seeking a prayer that the 1st defendant must perform its duty in accordance with the statute and on the other it is challenging the very same statute.' In the above stated factual background, the Supreme Court held that the amendment, if permitted, and the plaintiff is permitted to challenge the vires of the provisions, then the very basis on which the plaintiff is claiming its right to apportionment of its assets, rights & liabilities of the undivided Board would cease to be in existence and that the suit would be rendered infructuous and that the amendment introduces a totally different, new & inconsistent case and changes fundamental character of the suit. The Supreme Court inter alia held that the amendment was sought belatedly after the issues are framed and that the vires of the said sections was never challenged in petition under Article 32 of the Constitution of India. Hence, the Supreme Court refused to permit the amendment. 22G. The facts of the case in National Insurance Co. Ltd. v. B. Rama Goud and others, (2004) 5 ALT 315 : 2004 (4) ALD (NOC) 308, show that questioning the quantum of compensation awarded to the claimant, an insurer filed an appeal; the claimant was awarded compensation sought for; no finding was recorded against him; the claimant though not an aggrieved person, having filed an appeal, sought amendment of the claim petition for enhancement of compensation. Since appeal itself is not maintainable, the High Court held that the question of amendment of claim petition in such an appeal does not arise for consideration. 22H. Since appeal itself is not maintainable, the High Court held that the question of amendment of claim petition in such an appeal does not arise for consideration. 22H. The facts of the decision in Chunchu Laxminarayana v. Smt. P. Anandamma, 2006 (3) ALD 747 : 2006 (6) ALT 430 , show that substitution of cause of action by way of amendment was sought. Having regard to the facts of the case, the High Court of Judicature at Hyderabad found that wholesale replacement of cause of action which brings about a totally different and altogether new situation is impermissible. The Court also held that rights of legal representatives of deceased plaintiff to seek amendment of original pleadings being restricted right, they have to carry forward the suit in the same form as presented by their predecessor. 22I. In Gopireddy Andhra Pratap Reddy v. Pochana Sudarshan Reddy and others, 2007 (6) ALD 297 , on facts, the High Court of Judicature at Hyderabad found that the amendment of plaint seeking to introduce a plea that the property is the sthridhana property, which is contrary to the original claim of succession to the property, cannot be permitted as it would change the cause of action. 22J. In Gorantla Kondalrayudu v. M/s. Marvel Organics rep., by its Partners, 1997 (5) ALD 588 : 1997 (5) ALT 663 , on facts, the then High Court of Andhra Pradesh found that amendments being sought are not only inconsistent with the original pleadings but are also introducing new facts and that the proposed amendments if permitted would change the nature of the pleadings and cause prejudice to the defence of the defendants which is already taken and, therefore, the amendments sought are liable for rejection. 22K. The facts of the rase in G. Pratap Reddy and others v. World Common Wealth and Vethanta Trust, Hyderabad, 2010 (1) ALD 19 , show that since the High Court is of the view that the Trial Court did not consider the purport of amendment introduced by Act 22 of 2002, the matter was remanded to the Trial Court to pass orders afresh in the interlocutory application filed for amendment of the pleadings duly taking into account the purport of amendment caused to Order VI Rule 17 of the Code and various objections raised by the parties opposing the amendment. 22L. 22L. Nunna Rama Krishna Nageswara Rao v. Bolisetty Lakshmi Venkata Naga Srinivasa Rao, 2002 (1) ALD 632 , is a case where the legal representative of a deceased sought to take up a plea which is inconsistent with the earlier plea taken by the deceased party; further, the proposed plea, which has the effect of withdrawing the earlier admissions was found to be a fresh plea or defence; therefore, the Court held that such amendment of pleading cannot be permitted. 22M. The facts of the case in State of A.P. and others v. M/s. Pioneer Builders, AP, AIR 2007 SC 113 , are as follows: A petition was initially filed under Sections 8 and 20 of the Arbitration Act. An application under Order VI Rule 17 of the Code was filed seeking to convert the said proceeding into a civil suit. It was contended before the Supreme Court that the original petition was also, in fact, in the nature of a civil suit as the Court fee paid was much more than what was required to be paid on a petition under the Arbitration Act. However, a finding on that aspect by the High Court was absent in the matter. Further, the Supreme Court found that certain other factual aspects have also to be gone into. Hence, the Supreme Court remanded the matter to the High Court for consideration of the issue with regard to maintainability and merits of the application filed by the Contractor under Order VI Rule 17 of the Code. 22N. In Vempalli Srinivasula Reddy v. V.M. Ramakrishna Reddy and others, 2006 (1) ALT 160 : 2006 (5) ALD (NOC 108), the then High Court of Andhra Pradesh considered the effect of proviso added to Order VI Rule 17 of the Code by Amendment Act 22 of 2002. 220. In Rahimmunnisa Begum and others v. Mohd. Mohammadulla Khan Durrani (died) by LRs. and others, 2004 (2) ALD 511 , the facts of the case disclose that in a suit for partition wherein the plaintiff has taken a plea that the transaction is a benami transaction, amendment of plaint was sought on the basis of a Will, after the preliminary decree has become final. Mohammadulla Khan Durrani (died) by LRs. and others, 2004 (2) ALD 511 , the facts of the case disclose that in a suit for partition wherein the plaintiff has taken a plea that the transaction is a benami transaction, amendment of plaint was sought on the basis of a Will, after the preliminary decree has become final. On facts the Court found that the amendment if allowed changes the nature of the suit and results in reopening of the preliminary decree, which has become final, and that, therefore, the amendment of the plaint cannot be allowed. 22P. Therefore, the decisions above referred being distinguishable on facts are not helpful to the revision petitioner-1st defendant and do not advance his case in the light of the legal position, which is applicable and adverted to supra. 23. Viewed thus, this Court finds that the Trial Court is justified in allowing the applications of the plaintiffs. 24. In the result, all the civil revision petitions are dismissed. However, since the affidavits filed in support of interlocutory applications, which are sworn statements, shall not be permitted to be amended, the plaintiffs are permitted to file additional affidavits in the relevant IAs, which are pending, with necessary amended pleadings as a sequel to these orders. On filing of the neat copy of the plaint and copies of additional affidavits/amended pleadings in the relevant IAs by the plaintiffs, the Trial Court shall give an opportunity to the 1st defendant and other contesting defendants to file additional pleadings to answer the averments in the amended plaint and the amended pleadings in the IAs filed by the plaintiffs. 25. There shall be no order as to costs. 26. Miscellaneous petitions, if any, pending in this revision shall stand closed.