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2021 DIGILAW 2 (AP)

Nallala Bhaskar Reddy v. Nallala Mangamma

2021-01-05

K.VIJAYA LAKSHMI

body2021
ORDER : K. Vijaya Lakshmi, J. 1. This Civil Revision Petition is filed challenging the orders passed by the Principal Senior Civil Judge, Nandyal dated 26.06.2019 in IA No. 700 of 2017 in OS No. 211 of 2016. 2. The revision petitioner is the plaintiff and the respondents herein are the defendants in the petition. For the sake of convenience, the parties to this revision petition are hereinafter referred to as petitioner and respondents as arrayed before the trial Court. 3. According to the petitioner, he filed the above suit for partition of the plaint schedule properties into five equal shares by meets and bounds and to allot one such share to the plaintiff and the defendants and for such other reliefs. According to the plaint schedule, there are 13 items for partition. Case of the petitioner is that, 1st respondent is the mother, respondents 2 and 3 are the brothers and the 4th respondent is his sister; originally, the plaint schedule property is the ancestral property, belonging to one Nallala Thirupathi Reddy, who is the grandfather of the petitioner and respondents 2 to 4 and they were enjoying the plaint schedule properties jointly and dividing the usufructs equally; in the revenue records the plaint schedule properties are in the name of Nallala Nagi Reddy S/o. Thirupathi Reddy, who is the father of petitioner and respondents 2 to 4 and husband of 1st respondent; as the petitioner is a blind person, respondents are neglecting the petitioner and not giving his share of usufructs over the plaint schedule properties. As the petitioner and respondents are having equal shares i.e., 1/5th each over the plaint schedule properties and as the respondents have not divided the share of the petitioner, he filed the suit. 4. IA No. 700 of 2017 is filed by the plaintiff under Order VI Rule 17 and Section 151 of CPC seeking amendment of the plaint. In the affidavit filed in support of the petition, it is stated that he instructed his previous counsel that the partition should be between the petitioner and respondents 2 and 3 and that at the time of panchayat, himself and his brothers i.e., respondents 2 and 3, orally gifted some properties i.e., items 2 to 4 of the plaint schedule properties along with some land in Sy. No. 397/2132 admeasuring an extent of Ac. No. 397/2132 admeasuring an extent of Ac. 1.57 cents situated at Gani village, in favour of defendants 1 and 4 and delivered possession of the same in the presence of elders; that respondents 1 and 4 are enjoying the said properties and that after the said oral gift, respondents 1 and 4 agreed for partition of the rest of the properties i.e., other than items 2 to 4, between plaintiff and his brothers; but his previous counsel due to over sight included the shares of respondents 1 and 4 also for partition in the above suit and hence, he filed the petition for amendment of the plaint 5. Counter-affidavit is filed by the respondents contending that they filed a memo in the suit, stating that they have no objection to pass a decree as prayed for and that the said suit is coming for trial as issues were also framed long back; the proposed amendment would cause injury to the respondents and hence, amendment cannot be permitted unless the plaintiff satisfies the Court that in spite of due diligence, the issue could not be raised in the suit before commencement of the trial; amendment of the plaint will alter the nature of the suit and that it will take away the legal right of the respondents which was accrued to them and prayed for dismissal of the I.A. 6. The trial Court, after considering the material on record, dismissed IA No. 700 of 2017 on 26.06.2019 observing that the parties will sign on the verification that what is stated in the plaint is true and correct to the best of their knowledge and hence' the petitioner cannot contend that he does not know the pleadings in the plaint and that the proposed amendment will change the cause of action. 7. Aggrieved by the same, the present revision petition is filed. Heard Sri N. Ashwani Kumar, learned counsel for the revision petitioner and Sri Y. Nagi Reddy, learned counsel for the respondents. Perused the record. 8. Learned counsel for the revision petitioner contends that the proposed amendment will not alter the nature of the suit, the parties should not suffer for the mistake of the counsel and that no prejudice would be caused to the respondents 1 and 4, as they were already allotted their shares and that they are not entitled for any further-share in the plaint schedule. He further contends that as the petitioner is a blind person, the observations of the trial Court regarding the verification statement being sighed by the petitioner and having knowledge of the contents therein, needs reconsideration. He further submits that if the proposed amendment is allowed, the nature of the suit will not change, as respondents 1 and 4 have already taken away their shares and that the amendment application can be filed at any stage of the proceedings. 9. On the other hand, learned counsel for the respondents contends that the trial Court has rightly dismissed the application, as no amendment can be permitted when the petitioner failed to prove that in spite of due diligence, he could not have raised the issue before the commencement of the trial and prays for dismissal of the revision petition. 10. Order VI Rule 17 of CPC reads as follows: "Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite, of due diligence, the party could not have raised the matter before the commencement of trial." 11. According to the above Rule, the Court may at any stage of the proceedings allow either party to amend the pleadings, but such amendment shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The proviso to the said rule says that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial. 12. As seen from the plaint, it is specifically stated that the plaint schedule properties are being enjoyed by the petitioner and respondents jointly and that they are also dividing the usufructs from the subject land till the date of the filing of the suit. 12. As seen from the plaint, it is specifically stated that the plaint schedule properties are being enjoyed by the petitioner and respondents jointly and that they are also dividing the usufructs from the subject land till the date of the filing of the suit. It is also stated in the plaint that the subject properties are still in the name of Nalla Nagi Reddy, who is the father of the petitioner and respondents 2 to 4 and husband of 1st respondent. It is also stated that the respondents are not giving his share of usufruct over the plaint schedule properties in spite of many panchayats and that as the respondents have not divided the properties, he sought for partition of the plaint schedule properties in to five equal shares. Now by way of an amendment, a new plea has been taken stating that the partition should be only between himself and respondents 2 and 3, by excluding respondents 1 and 4 on the ground that petitioner and his brothers i.e., respondents 2 and 3, orally gifted item Nos. 2 to 4 of the plaint schedule properties along with some land admeasuring an extent of Ac. 1.57 cents of Gani village in favour of respondents 1 and 4 and that the possession of the same was also given to them. The plea of the petitioner in the said petition is that he instructed his previous counsel about the same, but due to mistake, shares were shown to respondents 1 and 4 also in the plaint schedule. The trial Court dismissed the above: petition observing that the proposed amendment will change the cause of action and that the respondents already filed their written statement and that the suit is coming up for trial. The trial Court also observed that the parties are not supposed to change their pleadings on the ground that they have changed their Advocate. 13. Now the point for consideration is that whether such an amendment can be allowed? 14. The trial Court also observed that the parties are not supposed to change their pleadings on the ground that they have changed their Advocate. 13. Now the point for consideration is that whether such an amendment can be allowed? 14. No doubt, Order VI Rule 17 of CPC says that the Court may at any stage of the proceedings allow either party to alter or amend the pleadings, but the proviso to the said rule says that, no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The plaint was filed on 01.08.2016, the defendants filed their written statement, the issues were also framed and admittedly, the suit is coming up for trial. Present I.A. was filed on 04.11.2017. Specific plea taken by the plaintiff in the plaint is that defendants 1 and 4 are also entitled to 1/5th share each in the plaint schedule properties. Now by virtue of the present petition, totally inconsistent plea is taken stating that items 2 to 4 of the plaint schedule were orally gifted to them along with other land and because of that, respondents 1 and 4 are not entitled to any share in the remaining items of the plaint schedule properties. Therefore, the contention of the petitioner that he is a blind person and that he specifically instructed his previous counsel that the partition should be only between himself and defendants 2 and 3, cannot be accepted at this stage. It is not even averred in the said I.A. that in spite of due diligence, he could not have raised the matter before the commencement of the trial. 15. In 'Peethani Suryanarayan v. Repaka Venkata Ramana Kishore, AIR 2009 SC 2141 ', relied upon by the learned counsel-for the respondents, the Hon'ble Supreme Court held as follows: "The power of the Court to allow such an application for amendment of plaint is neither in doubt nor in dispute. Such a wide power on the part of the Court is circumscribed by two factors, viz., (i) the application must be bona fide; (ii) the same should not cause injustice to the other side and (iii) it should not affect the right already accrued to the defendants.". 16. Such a wide power on the part of the Court is circumscribed by two factors, viz., (i) the application must be bona fide; (ii) the same should not cause injustice to the other side and (iii) it should not affect the right already accrued to the defendants.". 16. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, AIR 2008 SC 2139 : 2009 (4) ALT 3.1 (DN-SC), the Hon'ble Supreme Court held as follows: "Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgoiida Patil, [1957] 1 SCR 595 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. (Also see: Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, (1990) 1 SCC 166 )". 17. As seen from the judgment of the Hon'ble Supreme Court, amendments should be refused 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. The pleading that in spite of specific instructions to his previous counsel, his counsel pleaded for shares to all the respondents is not a ground for taking way the right vested in the respondents. If the amendment is ordered, it will affect the right which is already accrued to the respondents by virtue of the pleadings. 18. For the reasons aforementioned, there is no merit in this civil revision petition, and is accordingly, dismissed. No order as to costs. Consequently, Miscellaneous petitions, if any pending, in this revision petition shall stand closed.