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2020 DIGILAW 192 (AP)

T. Hanumanthu Naidu v. Malepati Jayasri

2020-03-04

M.VENKATA RAMANA

body2020
ORDER : This civil revision petition is directed against the order of the learned IV Additional District Judge, Kadapa, in I.A.No.1355 of 2018 in O.S.No.46 of 2010, dated 11.12.2018 invoking Article 227 of the Constitution of India. 2. The defendants are the petitioners. The respondent is the plaintiff. 3. The respondent instituted the suit against the petitioners for specific performance of contract basing on an agreement for sale dated 25.09.2009, agreeing to sell the plaint schedule property by the 1st respondent for a valuable consideration. The case of the respondent relevant for the present purpose as per the plaint is that Rs.20,00,000/-was paid by her to the 1st defendant, at his request and whereby, a conditional agreement of consent was executed on 25.09.2009. The petitioners 2 to 4 were brought on record, as per orders of the Hon’ble Supreme Court in S.L.P.Nos.38027 and 38028 of 2014 dated 31.01.2014. The petitioners 5 to 8 were also added subsequently. 4. The suit has almost come to a close and stated to be at the stage of arguments. At this stage, the respondents filed I.A.No.1355 of 2018 under Order VI Rule 17 r/w Section 151 C.P.C. to permit her to amend the plaint as under: ‘Para No.6D: 1. The defendants consented for the proposal submitted by the plaintiff that the plaintiff is ready to pay an amount of Rs.10 lakhs to D2 to D4 covered under Ex.A2 endorsement, if ultimately suit is decreed she will not press into service Ex.A2 in the suit. 2. Now the plaintiff is herewith paying Rs.10 lakhs through Demand Draft drawn in favour of defendants 2 to 4 i.e. T.Sarojamma, T.Suresh Babu and T.Sarala and they have to execute registered sale deed for 42 cents of site as mentioned in the schedule of this plaint. 3. It is submitted that, beneath the cause of action at Para 7, para 7a is to be added as, “that the plaintiff is now ready to pay Rs.10 lakhs as per the common order passed in civil revision petitions 4396, 6907 and 6965 of 2017 on the file of Hon’ble High Court of AP as well order passed by this court in I.A.No.666/ 2018 in O.S.No.46/2010 and the defendants have to execute registered sale deed without pressing into service Ex.A2 as per orders dated mentioned in above common orders of Hon’ble High Court of A.P.” 5. The reason assigned by the respondent to amend the plaint is the outcome in C.R.P.Nos.4396, 6907 and 6965 of 2017, by an order dated 16.02.2018 and review of the said order in Review I.A.No.1 of 2018 dated 06.04.2018. It is also the contention of the respondent that on account of consent given by learned counsel for the respondent in the above civil revision petitions agreeing to pay Rs.10,00,000/-, without pressing her claim under Ex.A2 endorsement on the revese of the suit agreement of sale, as to receipt of Rs.20,00,000/-and in view of the later order passed by this Court then at Hyderabad, it became necessary to bring out such an amendment to the plaint. 6. On behalf of petitioners 2 AND 8, the above petition was resisted in the trial Court filing a counter, mainly contending that the proposed amendment is highly belated being sought at the stage of arguments and that if it is permitted, it would take away admissions made by the respondent in the pleadings introducing a new case. It was also contended in the trial Court that the amendment cannot be permitted on account of different and inconsistent pleas, making departure from the original pleadings and particularly, considering their stand that they have been disputing execution and payment of Rs.10,00,000/-there under. Referring to the orders passed by this Court in the civil revision petition as well as review petition, it was further contended that this Court did not permit the respondent either to amend the plaint or alter the nature of this pleading. 7. Basing on the material and contentions advanced on behalf of these parties, upon consideration, learned trial Judge accepted the request of the respondent permitting amendment. Learned trial Judge has taken into consideration that the petitioners did not point out the alleged admissions, which would suffer, if the proposed amendment is permitted and having regard to the orders of this Court in civil revision petitions, it was felt that they be permitted, since based on a subsequent event. The trial Court also relied on the ratio in Gadamsetty Veeranjeneyulu v. Pokuru Ramaiah, 2018(4) ALT 666 . 8. Against this order, the present revision petition is preferred. 9. The trial Court also relied on the ratio in Gadamsetty Veeranjeneyulu v. Pokuru Ramaiah, 2018(4) ALT 666 . 8. Against this order, the present revision petition is preferred. 9. Sri A.Syam Sundar Reddy representing Sri G.Rama Chandra Reddy, learned counsel for the revision petitioners strenuously contended, assailing the order of the learned trial Judge referring to the previous history and circumstances leading to preferring several revision petitions in this Court against various orders passed by the trial Court at different stages. Further contentions are advanced by the petitioners pointing out the effect of orders of this Court in C.R.P.Nos.4396, 6907 and 6965 of 2017 dated 16.02.2018 as well as in Review I.A.No.1 of 2018 dated 06.04.2018. It is also contended that there was no occasion to make any concessions on behalf of the petitioners in the course of hearing in these matters and particularly, having regard to their specific stand at the trial disputing the entire transaction covered by Ex.A2, it could not have been a cause for the respondent to come out with the proposed amendment of the plaint. Pointing out that proposed amendment is sought at the stage of arguments in the suit completely alters nature and construction of the suit, making out a new cause and a new story for the respondent, it is contended that the proposed amendment did not fall within the scope of Order VI Rule 17 C.P.C. nor the trial Court could have exercised discretion to permit the same. 10. Sri P.Sree Ramulu Naidu, learned counsel for the respondent with the equally vehemence pointing out the nature of the orders of this Court in civil revision petitions as well as review application, contended that the proposed amendment is only an attempt to elucidate the matter in issue particularly, with reference to subsequent events, which went on in this Court. It is further contended that the proposed amendment would not in any way make out surprise to the petitioners and when law permits to bring out such amendment, and when the trial Court exercised its discretion rightly, it did not require any interference at this stage, in this revision petition. It is also contended that delay in the circumstances in filing amendment petition did not arise, since it is based on a subsequent event nor the provisions of Order VI Rule 17 C.P.C. stand in the way of permitting such an amendment. 11. It is also contended that delay in the circumstances in filing amendment petition did not arise, since it is based on a subsequent event nor the provisions of Order VI Rule 17 C.P.C. stand in the way of permitting such an amendment. 11. Now the point for determination is, ‘whether the proposed amendment be permitted, having regard to the nature and the stage, at which it was sought in the trial Court?’ 12. The stage of which the proposed amendment is sought is not in dispute. 13. Though strenuous contentions are advanced on behalf of the petitioners, referring to the history of this litigation particularly, in presenting several civil revision petitions, against the orders in different interlocutory applications by the parties, having regard to the nature and scope of this matter, it is not necessary to advert to all such events for the present purpose. Suffice to consider the circumstances leading to filing the above three civil revision petitions in this court and the petitions filed in the trial Court as well as the orders thereon were questioned in these civil revision petitions. 14. C.R.P.No.4396 of 2017 was preferred against the order of the learned trial Judge in the suit dated 07.07.2017. By the above order, Ex.A2, which is questioned, entered on the suit agreement of sale was directed to be forwarded to an expert for comparison of disputed signatures along with other connected documents. 15. C.R.P.No.6907 of 2017 was presented against the order of the trial Court in I.A.No.1286 of 2017 in the suit, to reopen the evidence on behalf of the petitioners herein. 16. C.R.P.No.6965 of 2017 was filed against the orders of the trial Court in I.A.No.1287 of 2017 and this petition was in turn filed to appoint a Commissioner to examine the expert and to record his deposition. 17. In the course of hearing in the above civil revision petitions, it appears a proposal was made on behalf of respondent herein, to pay Rs.10,00,000/- to the respondents 2 to 4 covered by Ex.A2 endorsement, if ultimately the suit is decreed and that she would not press her claim basing on Ex.A2. The common order in these civil revision petitions also refers to the fact that learned counsel appearing for the petitioners herein, who were respondents in the above civil revision petitions also consented for the above proposal. The common order in these civil revision petitions also refers to the fact that learned counsel appearing for the petitioners herein, who were respondents in the above civil revision petitions also consented for the above proposal. Basing on such situation, without going into merits, one of the learned Judges of this Court then at Hyderabad, allowed all the three civil revision petitions setting aside the orders of the trial Court, recording such submissions made on behalf of the parties. 18. Thereafter, review petition in I.A.No.1 of 2018 was filed in C.R.P.No.6907 of 2017, apparently urging that there was no concession by the petitioners herein made with reference to the nature of Ex.A2 endorsement and upon hearing learned counsel for the parties, the same learned Judge recorded the submissions made on behalf of the respondents herein to the effect that the petitioners could avail all the remedies available to them under law and that the order in civil revision petitions dated 16.02.2018 would not preclude them from availing such remedies. 19. The affidavit of the respondent filed in the trial Court in support of the petition also states that a petition was filed before the trial Court requesting to refer the matter to Lok Adalat to get a decree in her favour, stating that she was ready to pay cash of Rs.10,00,000/-to the petitioners herein and that they did not come forward to settle the issue. It was also stated in the affidavit filed in the trial Court by the respondent that an endorsement was made on behalf of the petitioners herein on the memo filed for such purpose in the trial Court that they did not give any consent, when the matters were pending in this Court. 20. There is also reference to the result and outcome in the petition in I.A.No.666 of 2018 filed by the petitioners herein against the respondent as well as the 1st petitioner on 05.10.2018. I.A.No.666 of 2018 was filed in the trial Court once again for appointment of an advocate commissioner to record the evidence of handwriting expert in Forensic Science Laboratory at Hyderabad. The above petition was dismissed, taking into consideration the outcome of these civil revision petitions referred to above including dismissal of I.A.No.1287 of 2017, which was filed by the petitioners herein for the very same purpose for examination of the handwriting expert. The above petition was dismissed, taking into consideration the outcome of these civil revision petitions referred to above including dismissal of I.A.No.1287 of 2017, which was filed by the petitioners herein for the very same purpose for examination of the handwriting expert. The respondent pointed out these circumstances and also the outcome in civil revision petitions as well as stand of the petitioners, being the factual basis for bringing out such an amendment to the plaint. 21. A careful consideration of this background, leads to an irresistible conclusion that the respondent wanted to bring on record all the subsequent events. Undoubtedly, they stand out as subsequent events and which occurred during the course of the suit, either at different stages or at different levels. 22. Further, when the nature of the dispute in between these parties is taken into consideration, the proposed amendment shall be treated as an attempt to explain as to what went on between the parties with reference to one of the contentious issues between the parties namely Ex.A2 endorsement. When such an attempt is made by the respondent to bring these events on record by amendment of the plaint, it cannot be stated that there was any amount of delay in applying for such an amendment. 23. When a plea is raised by a party for amendment of the pleadings basing on subsequent events, delay as such is not a relevant factor. Further, on account of the very same situation one cannot contend that being a post trial amendment, proviso to Order VI Rule 17 C.P.C. stood attracted. When the party intends to bring such facts on record by making an attempt to amend the pleadings, when they have certain amount of bearing in final adjudication of the matter, such objections sought to be raised by the petitioners could not have been considered by the trial Court. Rightly, they were rejected by the impugned order. 24. The effect of the subsequent events and attempt by a party to amend the plaint in relation thereto was considered in one of the judgments of this Court then at Hyderabad in M.Kamalamma and another v. B.Doraswamy Reddy and others, 2017(5) ALT 136 . Adverting to the facts situation and in some what similar circumstances, when a subsequent event was sought to be brought on record, the order of the trial Court permitting the amendment was held to be justified. Adverting to the facts situation and in some what similar circumstances, when a subsequent event was sought to be brought on record, the order of the trial Court permitting the amendment was held to be justified. Though, it was a case where a suit for permanent injunction is sought to be converted into a suit for declaration and consequential injunction, the effect of the facts relating to subsequent events was considered. The relevant observations in given facts and circumstances in this ruling are in para-13 and they are extracted hereunder for benefit. “…..Therefore, in view of the peculiar facts of the case on hand, it cannot, at this stage, be said that the relief being sought to be claimed in the suit by way of proposed amendment is barred by law of limitation as the said question being a mixed question of fact and law, requires determination by the trial Court after full-fledged trial. The view of this Court finds support from the decision in Raghu Thilak D. John v. Rayappan and others: [ AIR 2001 SC 699 ] wherein it was held that amendment of pleadings shall be allowed to avoid uncalled for multiplicity of litigation and that the dominant purpose of allowing amendment is to minimize litigation and the plea of limitation could be made a subject matter of the issue after allowing the amendment prayed for. Further, as per settled law, the merits of the proposed amendment cannot be gone into while considering an application filed for seeking amendment. Viewed thus, this Court finds that the ratio in the decision of the Supreme Court referred to supra cannot be applied to the facts of the present case. Thus, this Court is of the considered opinion that there are no legal impediments for allowing the amendment. In the discussion supra, this Court has already held that on facts, the amendment sought is bonafide and is permissible in the facts peculiar to the case. Further, any amendment which is necessary for effective adjudication of the lis and giving a quietus to the dispute between the parties, once and for all, can be permitted.” In permitting such an amendment, learned Judge also took into consideration, the ruling of the Hon’ble Supreme Court in Raghu Thilak D. John v. Rayappan and others, AIR 2001 SC 699 . Rightly, this ruling is relied upon by the learned counsel by the respondent in this case. 25. Another decision relied on for the respondent in similar context is on Bodugu Guraraviah and others v. Vipprapalli Sairam, 2018(3) ALT 275 . It is with reference to the proposition that correctness or merit of the proposed amendment cannot be gone into, when the Court is considering an application under Order VI Rule 17 C.P.C. Para-11 of this ruling in this respect, is as under: “…..It also noted that the purpose of permitting amendment is to shorten the litigation and the subsequent events which took place during pendency of suit ought to be allowed to be incorporated in the pleadings under Order VI Rule 17 CPC, particularly, when such amendments are sought for the purpose of bringing on record the facts relevant to decide the real question in controversy between the parties. It also relied on the judgment of this Court in Pankaja and Another v. Yellapa(died) by LRs. And Others ( 2016(1) ALD 437 ). However, it imposed costs of Rs.1,000/-on the respondent for filing the application belatedly.” 26. With reference to the effect of subsequent events, in the same ruling in the given facts and circumstances referring to Narani Jangaiah and others v. Pasham Anjaneyulu and others, 2015(5) ALT 323 , in para-21 it was observed as under: “v) In Narani Jangaiah’s case (supra) the application for amendment of plaint was sought after the conclusion of the trial. There also it was a case of amendment of prayer by seeking declaration of title in a suit initially filed for perpetual injunction. Admittedly, here when the application for amendment was filed, the trial had not concluded and the matter was at the fag end of trial. In any event, the events subsequent to filing of the suit are sought to be brought on record here. Therefore, the said judgment has also no application.” This ruling has also considered the effect of delay in requesting an amendment and the subsequent events. This ruling supports the stand of the respondent. 27. However, on behalf of the petitioners contending that delay in seeking an amendment and its effect cannot be overlooked and particularly, when in this case, it was sought at the stage of arguments, reliance is placed in Vijay Hathising Shah and another v. Gitaben Parshottamdas Mukhi and others, AIR 2019 SC 1119 . 27. However, on behalf of the petitioners contending that delay in seeking an amendment and its effect cannot be overlooked and particularly, when in this case, it was sought at the stage of arguments, reliance is placed in Vijay Hathising Shah and another v. Gitaben Parshottamdas Mukhi and others, AIR 2019 SC 1119 . In given facts and circumstances of the case, it is observed in this ruling in para-10 as under: “In our view, the Trial Court was right in rejecting the application. This we say for more than one reason. First, it was wholly belated; Second, respondent No.1(plaintiff) filed the application for amendment of the plaint when the trial in the suit was almost over and the case was fixed for final arguments; and Third, the suit could still be decided even without there being any necessity to seek any amendment in the plaint. In our view, amendment in the plaint was not really required for determination of the issues in the suit.” The amendment considered in this ruling of Hon’ble Supreme Court is based on particular fact situation. It was not an instance, where a subsequent event was sought to be brought on record by means of pleading. 28. Referring to parameters when an amendment of pleadings can be permitted, reliance is placed on behalf of the petitioners in M/s.Revajeetu Builders and Developers v. M/s Narayanaswamy and Sons and others, AIR 2009 SC (Supp) 2897. In this ruling, after referring to various earlier decisions of Indian and British origin, their Lordships observed in paras 67 to 69 as under: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the 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. 68. 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. 68. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 69. The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.” 29. One of the considerations that the Court when allowing an amendment, as per the parameters laid down by the Hon’ble Supreme Court in this ruling is, the bonafide attempt by a party to bring out such an amendment. Another parameter to consider is the possible prejudice the other side would suffer, which could not be adequately compensated by costs, if the amendment is permitted. 30. Having regard to the facts and circumstances of this case, there is no reason to hold that the attempt of the respondent to bring out such an amendment suffers from malafides. Nor it can be said that the petitioners would suffer any prejudice in the process, if the proposed amendment is permitted. 31. On the other hand, the proposed amendment would give an opportunity to the petitioners not only to controvert the pleadings so set up by the respondent but also substantiate their claim particularly, with reference to Ex.A2 endorsement. When their specific case is that Ex.A2 endorsement is forged and fabricated, they have an opportunity to give better particulars to substantiate their defence in this respect, while elucidating their stand further. When the proposed amendment also gives an opportunity to the petitioners in this respect, it cannot be stated that they stand to surprise or prejudice, if the same is permitted. 32. One of the objects in permitting the amendment is also to avoid multifarious ness. Though the contention of the petitioners is that the respondent could come up with a fresh suit basing on the outcome in the civil revision petitions referred to above, it cannot be so and when already a suit is pending in respect of very same issue and dispute, the party cannot be driven to another suit. Though the contention of the petitioners is that the respondent could come up with a fresh suit basing on the outcome in the civil revision petitions referred to above, it cannot be so and when already a suit is pending in respect of very same issue and dispute, the party cannot be driven to another suit. If such course is accepted, possibly it would amount to frustrating the very object of Order VI Rule 17 C.P.C. providing for bringing out amendments to the pleadings. This contention of the petitioners apparently is far reached. Nor any claim with reference to bar of limitation thereby could be considered. The reason is that the question of limitation is based on fact and law and it cannot be subject matter of a decision in a summary enquiry in an interlocutory application. If at all the petitioners have any defence to raise on a plea of bar of limitation, they can as well set out the same in the additional written statement, if they propose to file against this amendment of the pleadings in the trial Court. 33. Therefore, in given facts and circumstances of the case holding that learned trial Judge rightly exercised his discretion in permitting the amendment, all the contentions advanced on behalf of the petitioners have to be rejected. Consequently, the order under revision has to be confirmed. 34. In the result, this civil revision petition is dismissed confirming the order of the trial Court. The petitioners, if so advised, can present an additional written statement raising all such pleas as are open to them and which are legally permissible opposing the amendment so permitted, of the plaint. Parties are also given liberty to let in evidence in respect thereof and it is open for the petitioners to approach the trial Court once again to get an advocate commissioner appointed to record a deposition of the expert, who gave an opinion with reference to Ex.A2 in this process. No costs. 35. Interim order granted earlier if any, shall stand vacated. 36. Pending miscellaneous petitions, if any, shall stand closed.