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2022 DIGILAW 1259 (AP)

Satna Rukminamma v. Satna Parameswara Rao

2022-11-11

B.S.BHANUMATHI

body2022
ORDER : This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful defendants is directed against the orders dated 08.09.2021, of the Family Court-cum-VI Additional District Judge, Kadapa, dismissing IA.No.149 of 2021 in OS.No.29 of 2014 filed under Order VI Rule 17 CPC seeking to amend the plaint. 2. Heard Sri G.V.S. Kishore Kumar, learned counsel appearing for the revision petitioners/defendants and Smt. M. Siva Jyothi, learned 1st counsel for respondent/plaintiff. The other respondents are shown as proforma parties. 3. The case of the revision petitioners, in brief, is that the plaintiff brought the suit against the defendants for partition and separate possession of the suit schedule properties into four shares and for allotment of one such share to him by taking into good and bad qualities of the properties and in case the defendants fail to extend their cooperation, the same may be done through due process of law. The 1st respondent being the head of the family, while managing the joint family affairs, purchased several items of properties for the benefit including the interest of the joint family and for the benefit of the respondents by obtaining necessary documents. However, the entire properties purchased by him for the benefit of the joint family were not included in the schedule items of the properties for making them available for partition along with the suit schedule properties. The 1st respondent being the head of the family did not choose to add all the joint family properties for partition. The trial in the suit was commenced. The 1st respondent/plaintiff was examined as PW1. PW1 was cross-examined at length and after closure of the evidence of PW1, the 2nd defendant was examined and certain documents were marked. Learned counsel for the 1st respondent/plaintiff cross-examined the 2nd defendant at length. The chief affidavit of 4th defendant was filed as DW2 and she is yet to be examined in chief as well as cross-examination. (b) The main plea taken in the written statement filed on behalf of the defendants is that 1st respondent/plaintiff did not include all the joint family properties for partition. The properties which were not included are shown in the counter claim. On enquiries, the defendants came to know that the 1st respondent purchased the property on 15.04.1985 with joint family nucleus while maintaining the joint family for its benefit. The properties which were not included are shown in the counter claim. On enquiries, the defendants came to know that the 1st respondent purchased the property on 15.04.1985 with joint family nucleus while maintaining the joint family for its benefit. The property purchased was situated at Balaji Nagar, Kadapa town lying within the village fields of Chemmumiyapeta grampanchayat in an extent of Ac.0.10 cents situated in Sy.No.601/4 out of Ac.0.70 cents. The 1st respondent/ plaintiff deliberately omitted to show this property in the schedule for partition. After coming to know of the fact on 26.02.2021, they obtained certified copy of the same under document No.2235/1985. If this item of property is not included in the counter claim properties, the defendants suffer irreparable loss and hardship. The delay in filing the petition is not willful and intentional. (c) As the defendants are making counter claim including the petition schedule properties as additional item of property along with counter claim made properties, it has become necessary for the defendants to carry out necessary amendments in the written statement and also seek consequential amendments wherever necessary. Hence, this petition. (d) The proposed amendments sought for by the defendants are as follows: “1. Add Para No.8 in the written statement filed on behalf of the defendants No.1 to 3 as sub-para No.B It is submitted that these defendants came to know about the availability of 11th item as shown in the counter claim made particulars of the properties only on 26.02.2021 when these defendants got obtained the certified copy of the sale deed dated 15.04.1985 vide document No.2235/1985 through which the plaintiff purchased the 11th item of counter claim made property being the head of the joint family for the benefit of joint family. But the plaintiff did not choose to show the same along with the other items of properties and hence these defendants are entitled for partition of the same allotting 1/4th share therein to these defendants.’ 2. Add in para No.9 and sub-para A in the third line from the last line of the para after due shares in the third line. Add in para No.9 and sub-para A in the third line from the last line of the para after due shares in the third line. And that the defendants came to know about the availability of the 11th item of the counter claim made property only on 26.02.2021 when these defendants got obtained the certified copy of the registered sale deed, dated 15-04-1985 under document No.2235/1985 in which property also these defendants are entitled for their share. 3. Add in the last line of para No.9 after the matter As per market value of the property of the 11th item is Rs.31,94,400/-and since the defendant share comes to Rs.7,98,600/-since they are in joint possession along with plaintiff and 3/4th of it comes to Rs.2,66,200/-and on it a court fee of Rs.200/-is paid as per Section 34(2) of APCF and SV Act. Add 11th item in the counter claim made properties in the written statement filed on behalf of these defendants. SCHEDULE Kadapa District, Kadapa sub-District, Kadapa Taluka, Chemmumiyapeta Gramapanchayath and Chemmumiyapeta village fields in Survey No.601/4 of an extent of Ac.0.10 cents or 0.040 hectors out of Ac.0.70 cents. Bounded by: East : Vacant site in plot No.10 West : Vacant site in plot No.8 North : Rastha South : Poramboku land” 4. The 1st respondent/plaintiff filed counter denying the petition averments and contended that the averments made in the petition will not attract the provisions of Order VI Rule 17 CPC as the present application has been filed after commencement of trial and also when the matter is coming up for cross examination of DW2. If the petition is allowed, the same would change the very cause of action. There is no evidence to show that the petition schedule properties are purchased from out of the joint family nucleus. The grounds urged in support of the petition are untenable. There is no cause of action. There are no bona fides. 5. On contest, the trial Court dismissed the petition of the defendants. Therefore, the aggrieved defendants preferred this revision petition. 6. The revision petitioners, while reiterating their pleaded case, further urged in the grounds of revision as follows: The trial Court failed to bestow its attention to the well established principles of law, precedents relied on by the petitioners. It ought to have observed that the petitioners filed counter claim and that itself indicates ‘due diligence’ on their part. 6. The revision petitioners, while reiterating their pleaded case, further urged in the grounds of revision as follows: The trial Court failed to bestow its attention to the well established principles of law, precedents relied on by the petitioners. It ought to have observed that the petitioners filed counter claim and that itself indicates ‘due diligence’ on their part. The order impugned is liable to be set aside. 7. The main contention of the revision petitioners is that an amendment to the pleadings can be taken at any stage of the proceedings, more particularly in the case of partition; amendment can be made even after passing of the preliminary decree and also by adding or altering the properties to be partitioned for the purpose of rendering complete justice. But the trial Court failed to appreciate the same and dismissed the petition. 8. On the other hand, learned counsel for the 1st respondent/plaintiff contended that the petitioners failed to establish that in spite of due diligence, they could not take the amendment before commencement of trial, as rightly held by the trial Court. Moreover, the petitioners have already got the written statement amended earlier and ten (10) items of property were included and they cannot be permitted time and again to go on making the amendments to the pleadings at the fag-end of the suit. In support of the contention, reliance was also placed on the decision in Chander Kanta Bansal v. Rajinder Singh and others, 2008 Law Suit (SC) 245, wherein it was held at paragraph Nos.11 and 13 as follows: “11. … … As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "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. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness. 13. As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable material/materials placed before the court show that the delay was beyond their control or diligence, it would be possible for the court to consider the same by compensating the other side by awarding cost. … …. ….” 9. No doubt, a party is entitled to get the pleadings amended at any stage of the suit, but there is difference in the approach to grant permission depending on the stage of the suit. … …. ….” 9. No doubt, a party is entitled to get the pleadings amended at any stage of the suit, but there is difference in the approach to grant permission depending on the stage of the suit. If it is before commencement of trial, a liberal approach would be adopted in allowing the amendments to the pleadings, whereas after commencement of trial, that too, after completion of evidence to a substantial extent, the approach would be different and even as per the proviso to Order VI Rule 17 CPC, a stricter approach is adopted as the party seeking amendment needs to establish further that the amendment could not be taken earlier in spite of exercise of due diligence. 10. In this regard, the contention of the petitioners is that they have recently made enquiries and came to know about purchase of the proposed schedule property by the plaintiff by using the nucleus of the joint family property and thus, the same is also liable for partition. 11. When earlier they made enquiries and found ten items of property which were included in the counter claim why they could not make enquiry regarding this property and found it, is not shown by the petitioners. Endless litigation cannot be permitted and thus, the proviso to Order VI Rule 17 CPC has kept a rider to get the pleadings amended at any stage. Therefore, unless it is shown by the petitioners that in spite of due diligence, they could not get the amendment, though the proposed amendment is required, the same cannot be allowed. The trial Court has exercised its discretion in deciding that the petitioners failed to establish that even though they were diligent, they could not get the amendment before commencement of trial. Since this Court is exercising authority under Article 227 of the Constitution of India to revise the impugned order, it cannot sit in appeal and decide the merit in the order. There is no apparent mistake or illegality in the impugned order. As such, this Court does not see any reason to interfere with the impugned order and the petition is liable to be dismissed. 12. In the result, the Civil Revision Petition is dismissed being devoid of merit. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.