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2022 DIGILAW 135 (TS)

Chakali Pentamma v. Chakali Balamma

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 25.04.2019 in IA No.569 of 2019 in OS No.222 of 2012 on the file of the Senior Civil Judge, Sangareddy. 2. This application in IA No.569 of 2019 was filed by the plaintiffs under Order-I, Rule-10 read with Section 151 of the Civil Procedure Code, 1908 (for short ‘CPC’) for inclusion of certain lands in the schedule of properties. 3. The plaintiffs have filed the original suit No.222 of 2012 for partition and separate possession of plaint schedule properties. On receipt of suit summons, the defendants made appearance, written statement was filed, issues were settled, on behalf of plaintiffs evidence of PW.1 was filed, that witness was also cross-examined, but evidence of plaintiff is in progress. At that stage, the present application is filed by the plaintiffs under Order-I, Rule-10 r/w Sec.151 of CPC for inclusion of land in Survey Nos.213/A, 214/AA, 216/A and the house bearing No.4-93 in the schedule of property. 4. The main averments of the affidavit in support of this application are that when the suit was coming for plaintiffs’ further evidence, first plaintiff went to the office of her advocate, then she came to know that the suit is only filed in respect of one survey number leaving behind other landed property, then she has instructed her counsel to include the said properties as indicated above. It is only due to illiteracy, the plaintiffs could not include the above said properties at the time of filing of the plaint. It is just and essential to amend the plaint by including the said properties. 5. This application was resisted by the defendants before the trial Court. They filed a detailed counter highlighting the admissions made by PW.1 in her cross-examination stating that even prior to filing of the suit, PW.1 is aware that her father left behind the land in Survey Nos.213/A1, 214/A1 and Sy.No.216/A1, besides the suit land and these properties were not included or made part of schedule of properties in the present suit; PW.1 further admitted that the plaintiffs have sold the house to the first defendant; she has clearly admitted at the time of filing of the suit, she along with her mother went to her advocate’s office and gave instructions. These admissions of PW.1 are to the effect that her mother and first defendant has executed registered sale deed document No.6842 of 2004 in favour of the second defendant selling the entire land in Survey No.70/A1 - 17 ½ guntas, Survey No.213/A1 – 4 guntas, Sruvey No.214/A1 – 4 guntas, Survey No.216/A1 – 4 guntas, total Ac.0.29½ guntas and handing over the said sale deed to their advocate. Accordingly, the defendants have resisted this application stating that it is only an after thought to fill up the lacunae in the plaintiffs’ case. 6. Further, the second defendant in his written statement has categorically mentioned about the purchasing of said lands through registered sale deed document No.6842 of 2004 and the pleadings are aware of the said transaction. In fact, PW.1 in her evidence admitted that there are some other properties which were sold to the second defendant which was left by her father and at this belated stage, the plaintiffs have come up with the present application for addition of properties only to fill up the lacunae in their case and the petition is not maintainable. 7. The trial Court after careful appreciation of facts, the material available on record has dismissed the said application. Aggrieved by the same, the present civil revision petition is filed. 8. 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. 9. The plaintiffs have filed the original suit for partition. Evidence commenced. In fact, the defendants in their counter affidavit in IA No.569 of 2019 they have extracted several admissions of PW.1 who is the first plaintiff. From her admissions, it is crystal clear that plaintiffs along with DW.1, who is their mother, went to the office of their advocate and gave instructions at the time of filing of the suit. Before filing the original suit itself, the plaintiffs were also aware of the fact that the first defendant has executed a registered sale deed document No.6842 of 2004 in favour of the second defendant. 10. The averments in the counter would also make it clear that the second defendant has taken a specific plea about the purchase of said properties now sought to be included in the schedule of property, through the sale deed document No.6842 of 2004. 10. The averments in the counter would also make it clear that the second defendant has taken a specific plea about the purchase of said properties now sought to be included in the schedule of property, through the sale deed document No.6842 of 2004. It is only after the evidence of PW.1 is completed when the further evidence of plaintiffs is in progress, the present application is filed under Order-I, Rule-10 of CPC. 11. The object of this provision is to enable the Court at any stage of the suit to add a person as party when it is unable to effectively and completely adjudicate upon and settle all the questions involved in the suit in the presence of that person only to avoid multiplicity of the suits and also to strike out unnecessary parties. But the plaintiffs have filed this application under Order-I, Rule-10 CPC to include certain properties in the plaint schedule stating that due to inadvertence they could not mention those properties at the time of filing of the suit and it is just and essential to include these properties in the comprehensive partition suit. In the facts and circumstances of the case, as discussed above, by no stretch of imagination, the provisions of Order-I, Rule-10 CPC would apply to the facts of the present application. 12. Be that as it may, the evidence of PW.1 is concluded and further evidence is in progress. It appears, certain admissions are obtained by defendants in the evidence of PW.1 and she is the crucial witness. The second defendant in his written statement has taken a specific plea to the effect that he has purchased all these properties now sought to be included in the schedule of property from the first defendant, through a registered sale deed. It is the admission of the first plaintiff as PW.1 that a copy of such sale deed was handed over to their advocate at the time of drafting the pleadings in the plaint. All these facts would establish that plaintiffs were aware of the fact that some other lands left were behind by their father, apart from the suit schedule property and that the first defendant who is the mother of the plaintiffs has executed the sale deed document No.6842 of 2004 in favour of second defendant in respect of such properties. 13. All these facts would establish that plaintiffs were aware of the fact that some other lands left were behind by their father, apart from the suit schedule property and that the first defendant who is the mother of the plaintiffs has executed the sale deed document No.6842 of 2004 in favour of second defendant in respect of such properties. 13. On a careful analysis of the facts of the case, the prayer of the plaintiffs leads to amendment of the pleadings in the plaint. But, the provision of Order-VI Rule 17 CFPC prevents filing of an application for amendment of pleadings from being allowed after the trial is commenced, unless the Court comes to a conclusion that in spite of due diligence the party could not raise the matter before commencement of trial. The proviso to an extent curtails the absolute discretion of the Court to allow the amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such amendment could not have been sought earlier (M. Revanna v. Anjanamma, AIR 2019 SC 940 ). 14. In the present case, the plaintiffs were aware of the existence of some other properties and defendant No.1 executing sale deed in respect of the same in favour of defendant No.2 and they have also handed over copy of such sale deed to their counsel at the time of drafting their plaint. Thus, the plaintiffs are not at all diligent in filing the present application for inclusion of some other properties in the plant schedule. 15. Therefore, viewed from any angle, in the given facts and circumstances of the case as indicated above, the present application filed by the plaintiffs under Order-I, Rule-10 of CPC for inclusion of certain properties in the schedule of property is not maintainable at this belated stage after commencement of trial when the evidence of plaintiffs is in progress, I do not find any error apparent on the face of the record in the order impugned and it is sustained. 16. In the result, the Civil Revision Petition is dismissed confirming the order impugned dated 25.04.2019 in IA No.569 of 2019 in OS No.222 of 2012 on the file of the Senior Civil Judge, Sangareddy. However, in the circumstances of the case, the parties shall bear their costs respectively. 16. In the result, the Civil Revision Petition is dismissed confirming the order impugned dated 25.04.2019 in IA No.569 of 2019 in OS No.222 of 2012 on the file of the Senior Civil Judge, Sangareddy. However, in the circumstances of the case, the parties shall bear their costs respectively. Since the original suit was filed in the year 2012 and the evidence of plaintiffs is in progress, the trial Court is directed to expedite the disposal of original suit and shall make endeavour to dispose of the same within six 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. 17. As a sequel, interlocutory applications, if any pending, shall stand closed.