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2022 DIGILAW 134 (TS)

A. M. Sharadamba v. Mohd Salar Begum

2022-03-04

A.VENKATESHWARA REDDY

body2022
ORDER: 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India, assailing the order dated 22.02.2021 in IA No.13 of 2020 in OS No.18 of 2005 on the file of the Senior Civil Judge, Mahabubabad. 2. This application in IA No.13 of 2020 was filed by the plaintiffs under Order-VI Rule-17 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) for amendment of plaint by inserting new para 5 (c) beneath para 5 (b) and above para-6 of the plaint and to amend the relief portions. 3. Heard learned counsel on both sides. Perused the material available on record. For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendants as arrayed in the original suit. 4. The plaintiffs have filed the original suit for declaration of title and perpetual injunction against the defendants in respect of suit schedule property. Initially, the suit was filed against the first defendant. Thereafter, as per the orders in CRP No.91 of 2018 of this Court, defendants 2 to 8 were impleaded. The defendants 3, 4 and 7, despite service of summons, did not appear before the trial Court. They were set ex parte. The defendants 2, 5, 6 and 8 have adopted the written statement of first defendant. 5. The present application is filed under Order-VI, Rule-17 of CPC is filed by the plaintiffs for inserting para-5 (c) beneath para 5 (b) and above para-6 of the plaint by introducing new facts to the effect that during pendency of the suit, all the defendants inter se have created sale deeds and made illegal constructions over the suit schedule properties. Such persons have to be evicted from their unlawful possession and the sale deeds have to be cancelled as they are nominal and bogus. Accordingly, the relief of mandatory injunction is also claimed. This application is resisted by the contesting defendants. 6. The main averments of the counter affidavit filed by the first defendant adopted by the defendants 2, 5, 6 & 8 are that the plaintiffs have been filing one application after another to drag on the proceedings and to fill up lacunae, earlier IA No.769 of 2015 was filed. Most of the averments in the present application and in IA No.769 of 2015 are similar, but they did not mention in the earlier application for recovery of possession. Most of the averments in the present application and in IA No.769 of 2015 are similar, but they did not mention in the earlier application for recovery of possession. In the evidence affidavit of PW.3 itself, it is mentioned about the construction of houses in the schedule of property, it was filed on 06.10.2016. These respondents are lawful possessors, having purchased the suit schedule property, through the registered sale deeds and the present application seeking amendment of the plaintiffs filed at a belated stage is not maintainable. The trial Court after careful appreciation of the facts dismissed the said application holding that the material on record clearly to show that the petitioners seeking the relief of amendment to drag on the proceedings and if the amendment proposed is allowed, it will cause prejudice to the respondents, as the defendants are trying to fill up lacunae. The evidence of PW.1 as well as the documents filed by the defendants relating to the years 2005 and 2010 show that structures were raised in the suit schedule property by that time itself and there are no merits in the application. Accordingly, the application was dismissed. 7. The learned counsel for the plaintiffs vehemently contended that it is just and essential to bring the subsequent events on to record, in fact, after the cross-examination of PW.1 encumbrance certificate was obtained, it is only after 2016, the defendants started raising structures and pursuant to the orders of this Court allowing IA No.769 of 2015, defendants 2 to 8 were impleaded, they have filed their written statement, additional issues were framed, no prejudice would cause to the defendants, if this application is allowed and the plaintiff is permitted to amend the pleadings in the plaint and relied on the principles laid in the case of Sampath Kumar v. Ayyakannu, Laws (SC)-2002-9-15. 8. Per contra, the learned counsel for the defendants seeks to submit that the plaintiffs are aware of the existence of structures laid during 2005 to 2010 itself. In fact, in the earlier application in IA No.769 of 2015 filed to implead the defendants 2 to 8 it is stated that they were encroaching the suit schedule property, though the trial Court has dismissed that application, this Court in CRP No.91 of 2018 set aside the said order and they were brought on record. They have filed their written statement. They have filed their written statement. All these facts are well within the knowledge of plaintiffs. It is only as some admissions are obtained in the evidence of PW.1 to overcome the same, to fill up the latches the present application is filed. If the amendment is allowed, it would change the entire nature of the suit, seeking for mandatory injunction from perpetual injunction, causing prejudice to the defendants and they have raised structures even before filing the suit itself and accordingly prayed for dismissal of the application. 9. This application is filed under Order-VI, Rule-17 of CPC. The normal rule prior to the amendment of CPC is that amendment of pleadings can be allowed at any stage. However, by proviso to Rule-17 of Order-VI CPC an interdict is created. According to it, no application for amendment shall be allowed after the trial has been commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raise the plea before commencement of the trial. 10. In the case on hand, as per the pleadings and the facts discussed above, the plaintiffs initially filed the original suit against the first defendant for declaration of title and perpetual injunction. Later, as per the orders in CRP No.91 of 2018, defendants 2 to 8 were brought on record, some of them were set ex parte, others have filed their written statement. Issues and additional issues were framed, evidence of plaintiffs is in progress. After examination of PW.1 on behalf of plaintiffs, the present application is filed. The contention of the plaintiffs is that as on the date of filing of the suit, the suit schedule property was open land, but subsequently, the defendants have raised houses. 11. Per contra, it appears, the defendants have elicited in the cross-examination of PW.1 certain facts in support of their defence and also filed certain documents to show that during the years 2005 to 2010 itself, there were certain constructions in the suit schedule property and before filing the suit itself, the houses were in existence. Further, as per the order impugned, the evidence on behalf of plaintiffs was closed and after closure of the plaintiffs’ evidence, defendants have also commenced their evidence and concluded on 17.12.2019. After conclusion of the evidence on both sides, at this belated stage, the present application is filed. 12. Further, as per the order impugned, the evidence on behalf of plaintiffs was closed and after closure of the plaintiffs’ evidence, defendants have also commenced their evidence and concluded on 17.12.2019. After conclusion of the evidence on both sides, at this belated stage, the present application is filed. 12. In Sampath Kumar’s case (stated supra) relied by the learned counsel for the plaintiffs while dealing with the Order-VI, Rule-17 CPC, the Hon’ble Supreme Court at para-9 held as under: “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 amended. 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 straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 13. In another decision in Surender Kumar Sharma v. Makhan Singh, LAWS (SC)-2009-0-45 also, the Hon’ble Apex Court held that even if such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused and if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. 14. By Act No.46 of 1999 there was a sweeping amendment by which Rules 17 and 18 of CPC were omitted, so that the amendment of pleadings was not permissible. 14. By Act No.46 of 1999 there was a sweeping amendment by which Rules 17 and 18 of CPC were omitted, so that the amendment of pleadings was not permissible. Finally, to strike a balance, the Legislature has reintroduced Rule-17 by Act No.22 of 2002 with effect from 01.07.2002. 15. The Hon’ble Supreme Court of India has considered the effect of proviso to Rule-17 of Order-VI CPC in Salem Advocate Bar Association v. Union of India, AIR 2005 SC 3353 . In paragraph Nos.42 and 43, the Hon’ble Supreme Court has held as under: “42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule.” 16. In Vidyabai and others v. Padmalatha and others, AIR 2009 SC 1433 at paragraph No.14, it is held by the Hon’ble Supreme Court of India, as under: “14. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.” 17. The Hon’ble Supreme Court in Salem Advocate Bar Association’s case (1 supra) upheld the validity of proviso to Rule 17 of Order-VI CPC. 18. As per the proviso, it is to be established by the party 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” have 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 the 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. It means, such diligence as a prudent man would exercise in the conduct of his own affairs. Thus, it is clear that unless the party takes prompt steps, mere action cannot be accepted in filing a petition for amendment of pleadings after the commencement of trial. 19. The details furnished below would show that how the facts of the present case were well within the knowledge of the plaintiffs even before filing the application and that they are not entitled for amendment of the pleadings in the plaint. The suit was filed on 30.03.2005, the written statement of sole defendant was filed on 08.08.2005. The evidence affidavit of PW.1 was filed on 19.03.2010, thereafter documents were marked in the evidence of PW.1 and the witness was cross-examined on 14.07.2015, 19.08.2015 and 20.11.2015. Later, on 21.12.2015 IA No.769 of 2015 was filed by the plaintiffs to implead pendente lite purchasers, it was dismissed. The evidence affidavit of PW.1 was filed on 19.03.2010, thereafter documents were marked in the evidence of PW.1 and the witness was cross-examined on 14.07.2015, 19.08.2015 and 20.11.2015. Later, on 21.12.2015 IA No.769 of 2015 was filed by the plaintiffs to implead pendente lite purchasers, it was dismissed. Against the said orders, the plaintiffs have preferred CRP No.91 of 2018 it was allowed and the defendants 2 to 8 were impleaded in the original suit on 31.08.2018. In the meanwhile, on 18.09.2017 the first defendant himself got examined as DW.1, his cross-examination was completed on 30.01.2018. After impleading defendants 2 to 8, they have filed their respective written statements as stated above, additional issues were framed on 11.12.2019 and additional evidence was also closed on 17.12.2019. Thereafter, on 18.12.2019 plaintiff has filed IA No.562 of 2019 seeking permission to lead further evidence and it was dismissed. On 08.01.2020, IA No.13 of 2020 was filed i.e., the present application and it was also dismissed on 22.02.2021 and the suit is being posted for arguments from 19.04.2021 onwards. 20. In such facts and circumstances of the case, in view of the principles laid by the Hon’ble Supreme Court of India in Vidyabai’s case (4 supra) and in Salem Advocate Bar Association’s case (3 supra) as the burden is on the plaintiffs to establish that in spite of due diligence, such amendment could not have been sought earlier, and that the plaintiffs have failed to discharge the said burden, they are not entitled for amending the pleadings, changing the nature of the suit at this belated stage, after conclusion of the trial, when the suit is posted for arguments. Therefore, I do not find any error in the order impugned and it is sustained. 21. In the result, the Civil Revision Petition is dismissed confirming the order impugned dated 22.02.2021 in IA No.13 of 2020 in OS No.18 of 2005 on the file of the Senior Civil Judge, Mahabubabad. However, in the circumstances of the case, since evidence of both sides is closed and the original suit is being posted for arguments from April 2019 onwards, the trial Court shall dispose of the original suit, within three months from the date of receipt of a copy of this order. Both the parties to the suit shall cooperate with the trial Court for expeditious disposal of the original suit, as directed. Both the parties to the suit shall cooperate with the trial Court for expeditious disposal of the original suit, as directed. No order as to costs. 22. As a sequel, interlocutory applications, if any pending, shall stand closed.