Mukkala Soma Sekhara Rao v. Vangavolu Maruthi Srinagesh Alias Nagesh
2022-10-28
V.R.K.KRUPA SAGAR
body2022
DigiLaw.ai
ORDER : The plaintiff before the trial Court filed this civil revision petition under Article 227 of the Constitution of India questioning the correctness of order dated 22.04.2019 of learned Principal Senior Civil Judge, Guntur in I.A.No.466 of 2019 in O.S.No.255 of 2012. Under the impugned order, the learned trial Court refused to grant permission to the plaintiff to amend the plaint. Respondents herein are the defendants in the suit. 2. Despite notices, none appeared for respondents. 3. Learned counsel for revision petitioner submitted arguments. 4. O.S.No.255 of 2012 is a suit filed by the plaintiff. The pleadings are that the plaintiff is a Citizen of America with OCI Card. Therefore, he could not prosecute his affairs and therefore gave Special Power of Attorney to represent his causes. In the plaint, it is stated that a part of ‘A’ schedule property came to be owned by the plaintiff under a registered gift deed dated 09.03.2007. One and half year prior to the suit, the 1st defendant unlawfully occupied the suit schedule property without having any right or authority and raised asbestos roofed shed and obtained electricity connection from defendant No.3. When plaintiff by himself and through others questioned the 1st defendant, there was a promise made to him that the 1st defendant could vacate the property, but the 1st defendant has been dodging it. A registered legal notice was sent to the defendants and a notice was sent to the 3rd defendant to disconnect the electricity connection. It is with such averments, the following prayers are made in the plaint. They are extracted here: “a) Possession of the plaint schedule property from the hands of D.1 and for; b) mesne profits from the date of the suit till the plaintiff is put in possession thereof; c) mandatory injunction directing the 3rd defendant to disconnect S.C.361146 to the super structures in the suit schedule property; d) costs of the suit; and e) such other reliefs as are deemed just and necessary in the circumstances of the case.” 5. The plaint discloses that on the three reliefs claimed, he paid necessary court fees. The defendants put up their contest and filed their written statements. The suit went for trial and evidence on plaintiff’s side was adduced.
The plaint discloses that on the three reliefs claimed, he paid necessary court fees. The defendants put up their contest and filed their written statements. The suit went for trial and evidence on plaintiff’s side was adduced. Before commencement of evidence on defendants’ side, plaintiff in the suit filed I.A.No.466 of 2019 in O.S.No.255 of 2012 under Order VI Rule 17 and Section 151 C.P.C. seeking for amendment of the plaint. In his affidavit, the plaintiff stated that recently he got his counsel changed and thereafter, there was occasion for verification of the plaint and it was realized that the prayer portion in the suit was wrong. There was no clear prayer seeking for declaration of title and consequential prayer for cancellation of documents. This error was only out of oversight and because of the fact that the plaintiff has no legal knowledge. The plaintiff realized this mistake only when the Court made a mention as to how the case is maintainable without a prayer for declaration. It is only out of lack of knowledge, the error remained. There are no willful laches. In those circumstances, he sought for amendment of the prayer portion of the plaint in the following terms: a. for declaring the plaintiff as the absolute owner of the plaint schedule property by virtue of the Gift Deed executed by Smt.Mukkamala Gnanasundari vide its Doc.No.7078/2007, Dt.09.03.2007 and for consequential recovery of possession of the plaint schedule property. b. Cancellation of Regd. Gift Deed executed by 1st defendant in favour of 2nd defendant, Dt.13.10.2011 vide its Doc.No.12135/2011 created with coercion, c. towards costs of the suit, d. to pass such other reliefs as the Hon’ble Court may deems fit and proper under the circumstances of the case. 6. As against that, respondent Nos.1 and 2 filed a counter stating that the petition is filed under incorrect provision and it is filed at a belated stage and petitioner weaved a cock and bull story with all false and frivolous allegations and that the petitioner has not come to Court with clean hands and the petitioner is not vigilant and diligent. It is further stated that the proposed amendment for amending reliefs are barred by limitation and at this stage of the case amendment cannot be permitted. The proposed amendment contradicts the original prayer and if it is allowed, the entire defence of the respondents will be changed.
It is further stated that the proposed amendment for amending reliefs are barred by limitation and at this stage of the case amendment cannot be permitted. The proposed amendment contradicts the original prayer and if it is allowed, the entire defence of the respondents will be changed. The averments in the plaint and the proposed amendment are contrary to each other. Petition cannot be maintained by doctrine of waiver and acceptance. The petitioner is at liberty to file a separate suit if permitted under law and if it is within time. For these reasons, he sought for dismissal of the petition. 7. After hearing learned counsel on both sides and on considering the material on record, learned trial Court dismissed the petition. The reasons for dismissal are recorded in the order stating that lack of legal knowledge cannot be offered as an excuse, the proposed amendment will affect the defence of the defendants, the petition is filed at a belated stage and it ought to have been filed when the Court made the observation about non-maintainability of the suit without a prayer for declaration and that the prayer is barred by limitation as it was filed seven years after filing of the suit. The petitioner was not diligent. For these reasons, it dismissed the petition. 8. Aggrieved by it, the present revision is filed stating that pleadings could be amended at any stage of the suit and the proposed amendment will not change the nature of the case and the proposed amendment would avoid multiplicity of litigation and the learned trial Court failed to observe these aspects. It is also contended that the proposed amendment would not go against the pleadings and would not defeat the defence but the trial Court erred in by holding otherwise. The petitioner, being a person not living in this country, any delay should have been considered as not willful or wanton. For these reasons, he sought to upset the impugned order. 9. The point that falls for consideration is : “Whether the trial Court passed the impugned order against law and facts resulting in miscarriage of justice requiring interference under Article 227 of the Constitution of India? 10. Point: The fact that the revision petitioner is not a resident of this country and he is represented by his power of attorney holder is undisputed.
10. Point: The fact that the revision petitioner is not a resident of this country and he is represented by his power of attorney holder is undisputed. Order VI Rule 17 C.P.C. permits amendment of pleadings at any stage of the suit proceedings. However, when once the trial has commenced, no application for amendment shall be allowed unless the Court is satisfied that in spite of due diligence, the party could not have raised the matter before commencement of the trial. One of the facts alleged in the petition filed before the trial Court was that the plaintiff had recently changed his learned counsel and only thereafter he realized the draw backs in the prayer portion of his plaint. It is also mentioned that the plaintiff by himself had no knowledge of law and only after change of counsel, the lapses were noticed especially when the Court made the observation about omission on part of the plaintiff in seeking relief of declaration of title. The observation of the trial Court is that the plaintiff’s absence of knowledge of law or ignorance of law is no excuse. This observation cannot be supported. While the law presumes everybody has knowledge of law, there is no presumption under law that every niceties of law is known to everyone. It is for one reason the profession of advocacy had come into existence. The plaintiff having entrusted the matter to his counsel and having briefed him the whole of the facts that were relevant it was up to the counsel to prepare the pleadings in accordance with law and make prayers that are relevant and would relieve the client from the agony. Those aspects are within the realm of a lawyer and such niceties of law need not necessarily be in the knowledge of a client. It is nobody’s case that plaintiff is also a law graduate or a lawyer. Therefore, when he made a submission to the Court he for himself had no knowledge of law and he was dependent on his counsel and that on change of counsel, he realized that there was mistake in the prayer, the trial Court ought to have sensibly considered those submissions. The impugned order shows that learned trial Court did not have proper reflection on these aspects. 11. The proposed amendment does not want to alter any of the averments in the plaint.
The impugned order shows that learned trial Court did not have proper reflection on these aspects. 11. The proposed amendment does not want to alter any of the averments in the plaint. It only seeks to rearrange and make certain prayers. The existing prayers in the plaint indicate a prayer for recovery of possession of immovable property and a prayer for mandatory injunction. Plaint shows that such reliefs are claimed based on the title. The plaintiff believes to have title with himself by virtue of obtaining a registered gift deed dated 09.03.2007. In cause of action para also he asserted his title. Thus, plaint speaks about assertion of title over the immovable property. In the proposed amendment, he requests the Court to permit him to make a prayer for declaration of title. Since no averment in the plaint is sought to be altered and on the existing available pleadings when an additional relief is claimed, the trial Court ought to have allowed it since such prayer would not in any way alter the cause of action or the nature of the suit. The impugned order has not indicated in what respect the defence in the written statement would be effected by such additional prayer. Thus, the impugned order suffers from ill-consideration of the material available before it. In the plaint, it is mentioned that the 1st defendant executed a registered gift deed dated 13.10.2011 in favour of the 2nd defendant and such gift deed does not convey any valid right or possession over the property. However, no prayer was made against that disputed gift deed. In the proposed amendment, the plaintiff intends to have such prayer made. The impugned order does not indicate under what principle of law the proposed reliefs are barred by limitation except saying that proposed reliefs are barred by limitation. Having failed to mention the law, the order is infirm. Since the suit is already pending, the proposed amendment could be permitted and question of limitation could be framed as additional issues. The change of counsel and absence of knowledge on the niceties of law are valid causes which prevented the plaintiff from seeking these amendments at earlier point of time. Therefore, the proviso to Order VI Rule 17 C.P.C. stands fulfilled. It is in these circumstances, this Court finds merit in this revision. Therefore, point is answered in favour of the revision petitioner. 12.
Therefore, the proviso to Order VI Rule 17 C.P.C. stands fulfilled. It is in these circumstances, this Court finds merit in this revision. Therefore, point is answered in favour of the revision petitioner. 12. In the result, this Civil Revision Petition is allowed setting aside the order dated 22.04.2019 of learned Principal Senior Civil Judge, Guntur in I.A.No.466 of 2019 in O.S.No.255 of 2012 and thus I.A.No.466 of 2019 in O.S.No.255 of 2012 stands allowed. It is made clear that on the new reliefs, the petitioner/plaintiff before the trial Court should remit appropriate court fees within the time granted by the trial Court. If he fails to proceed in accordance with law, his right to seek amendment will not survive. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.