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2022 DIGILAW 216 (AP)

VAKKALAGADDA VENKATA SIVAYYA v. TUMMALA SUJATHA

2022-02-22

B.S.BHANUMATHI

body2022
ORDER : This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful petitioners/defendants is directed against the orders dated 30.07.2019 of the learned Principal Junior Civil Judge, Avanigadda, passed in IA.No.484 of 2019 in OS.No.223 of 2016 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (‘the Code’, for brevity) requesting to amend the plaint as noted hereafter. 2. Heard Mr. Sai Gangadhar Chamarty, learned counsel for the petitioners/defendants and Mr. Marri Venkata Ramana, learned counsel for the respondent/plaintiff. 3. The case of the plaintiff, as stated in the affidavit filed in support of the petition, in brief, is this: (a) The suit is filed for permanent injunction against the defendants from interfering with the plaint schedule property and for other reliefs. The plaintiff purchased the plaint schedule property from Vakkalagadda Sambasiva Rao, for a fully paid valuable consideration of Rs.2,38,000/- under a registered sale deed, dated 22.07.2014, and took possession of the property on the same day. Since then, the plaintiff is in continuous possession and enjoyment of the plaint schedule property with absolute rights. While so, as the defendants made attempts to trespass into the plaint schedule property in November, 2016, the plaintiff filed the suit. (b) The defendants filed written statement alleging that the plaint schedule property is the joint property of the 1st defendant and the vendor of the plaintiff and that the vendor of the plaintiff has no right to alienate the property to the plaintiff. (c) During the pendency of the suit, the defendants tried to trespass into the plaint schedule property on 10.05.2019 and at that stage, the plaintiff and her husband prevented their illegal acts and when they tried to beat the plaintiff and her husband, they reported the matter to the police. While so, on 15.05.2019, the defendants highhandedly and illegally trespassed into the schedule property and occupied the same and started making modifications in the schedule site with the help of antisocial elements. The defendants are no way concerned with the plaint schedule property and they are only trespassers. The plaintiff has got a strong case to succeed in the suit. Due to changed circumstances, the plaintiff has been advised to seek amendment of the plaint to convert the suit from one of permanent injunction to suit for declaration and possession. The defendants are no way concerned with the plaint schedule property and they are only trespassers. The plaintiff has got a strong case to succeed in the suit. Due to changed circumstances, the plaintiff has been advised to seek amendment of the plaint to convert the suit from one of permanent injunction to suit for declaration and possession. The plaintiff prayed for the following proposed amendment of the plaint: Para No.8(A): The defendants highhandedly and illegally trespassed into the plaint schedule property on 15.05.2019 and occupied the plaint schedule property without any manner of rights, title in the plaint schedule property and disputing title of plaintiff. Therefore, plaintiff prayed to grant ad Decree for Declaration to declare that the plaintiff is absolute owner of plaint schedule property and for eviction of the defendants from the plaint schedule property by due process of law within a stipulated period and to induct the plaintiff into possession of the plaint schedule property and to grant future mesne profits at the rate of Rs.12,000/- per year for every year till the eviction of the defendants from the plaint schedule property. Para No.9: After the word from the last two days, “and the defendants trespassed into the plaint schedule property highhandedly and illegally on 15-05-2019 without any manner of rights or title in the plaint schedule property.” Para No.10 (A): Suit for Declaration to declare that the plaintiff is absolute owner of the plaint schedule property and for eviction of the defendants from the plaint schedule property by due process of law. The value of each yard of plaint schedule property is Rs.4400/- as per the market value. The total value of the plaint schedule property is Rs.4,400/- X119 sq. yards, which comes to Rs.5,23,600/- on which 3/4th of which is Rs.3,92,700/-. Para no.14: After Rs.10,000/- (Rupees ten thousand only) + Para No.15 (AA): To grant a Decree for Declaration to declare that the plaintiff is absolute owner of the plaint schedule property and for eviction of the defendants from the plaint schedule property within a stipulated period by due process of law or else it can be ordered to be evicted through process of law and to induct the plaintiff into possession of plaint schedule property and to grant mesne profits at the rate of Rs.12,000/- per year from 15-05-2019 onwards till the eviction of the defendants from the plaint schedule property.” 4. The case of the defendants in their counter, in brief, is this: The suit was filed for permanent injunction. The plaintiff now intends to convert the suit for declaration that the plaintiff is the absolute owner of the plaint schedule property and for eviction of the defendants therefrom. Even prior to filing of the suit, the defendants are in possession of the schedule property. The subject property is the joint family property of the 1st defendant and his brother. The vendor of the plaintiff is not entitled to alienate the suit property to the plaintiff as denied in the written statement of the defendants. The proposed amendment would altogether alter the original cause of action. No cause of action has arisen on 15.05.2019 as alleged in the affidavit. There are no bona fides in the petition seeking amendment. The plaintiff filed the chief affidavit and got marked exhibits A1 to A3. When the matter was posted for cross-examination, the present application has been filed seeking amendment of the plaint. The petition is filed in order to drag on the proceedings. The petition has no merits and the same is liable to be dismissed with costs. 5. At the time of enquiry, no oral or documentary evidence was adduced on either side. 6. On merits, the trial Court allowed the petition of the plaintiff. Therefore, the defendants are before this Court. 7. The main contention of the revision petitioners is that the proposed amendment would altogether alter the cause of action, nature of the suit and the reliefs claimed and further, the amendment was sought at a belated stage. It is also contended that as the defendants have taken a plea that the suit schedule property is in their possession, the proposed amendment is only a camouflage to overcome the laches in filing the suit for perpetual injunction. 8. Learned counsel for the respondent/plaintiff would submit that the revision is devoid of merit as the Court below had analyzed the pleadings in the suit correctly while recording findings in its interlocutory orders, which are impugned in this revision and properly appreciated the facts and the relevant legal position while allowing the petition. 9. In view of the facts and the rival contentions, it is profitable to refer to the legal position relevant to the relief sought in the petition. 9. In view of the facts and the rival contentions, it is profitable to refer to the legal position relevant to the relief sought in the petition. Order VI Rule 17 of the Code reads as under: “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.” 10. In Revajeetu Builders V/s Narayana Swamy, (2009) 10 SCC 84 on an analysis of English and Indian case law, the Supreme Court carved out the following principles which should weigh with the Court while dealing with an application for amendment: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case; (2) Whether the application for amendment is bona fide or mala fide; (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. The Supreme Court, however, clarified that the above principles are illustrative and not exhaustive. 11. In Rajkumar Gurawara (dead) through L.Rs v. S.Sarwagi and Company Private Limited and Another, (2008) 1 SCC 364 the Supreme Court, having referred to Order VI Rule 17 of the Code, held as follows: “Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation.” 12. On the aspect that the application for amendment is debarred in view of the proviso to Order VI Rule 17, it is necessary to refer to the decision in Usha Devi v. Rijwan Ahamd, (2008) 3 SCC 717 . In the said decision, a contention was advanced that the trial of the suit would commence with the settlement of the issues; and, in support of the said contention, reliance was placed on the decision in Ajendra Prasadji N.Pandey v. Swami Keshavprakeshdasji [ (2006) 12 SCC 1 ]. However, while meeting the said contention, the attention of the Supreme Court was invited to its earlier decision in Baldev Singh v. Manohar Singh [ (2006) 6 SCC 498 ] wherein it was held as follows: “Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. ……………… ………… That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.” Further, the Supreme Court having referred to a three-judge Bench decision in Sajjan Kumar v. Ram Kishan, (2005) 13 SCC 89 held as follows: “It is true that the Plaintiff-Appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff-appellant succeeding in the suit.” Thus, in Usha Devi’s case, the Supreme Court, keeping in view of the decision in Sajjan Kumar (supra), held as follows: “We may clarify here that in this order we do not venture to make any pronouncement on the larger issue as to the stage that would mark the commencement of trial of a suit but we simply find that the appeal in hand is closer on facts to the decision in Sajjan Kumar and following that decision the prayer for amendment in the present appeal should also be allowed.” 13. In Vidyabai V/s. Padmalatha, 2008 Law Suit (SC) 1811 the Supreme Court observed that proviso to Order VI Rule 17 of the Code is couched in a mandatory form and, therefore, the court’s jurisdiction to allow an application for amendment is taken away there under unless the conditions precedent therefor are satisfied, and that before allowing amendment, the Court must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial and that it is the primary duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a condition is fulfilled, the amendment is to be allowed. Thus, the proviso appended to Order VI Rule 17 of the Code was held to restrict the power of the Court and that it placed an embargo on exercise of its jurisdiction and that unless the jurisdictional fact as envisaged therein is found to exist, the court would have no jurisdiction at all to allow the amendment. 14. Further, in Abdul Rehman and Another v. Mohd. 14. Further, in Abdul Rehman and Another v. Mohd. Ruldu and Others, 2013 (1) ALD 1 (SC) the Supreme Court, laid down that it is clear that the parties to the suit are permitted to bring forward amendment of the pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them and that the Courts have to be liberal in accepting the same, if such application for amendment is made prior to the commencement of the trial and that if such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that, inspite of due diligence, the party could not have raised the matter before the commencement of the trial. In the above decision the Supreme Court reiterated the following proposition: “All amendments which are necessary for the purpose of determining real questions of controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.” In the above decision the Supreme Court further referred to the ratio in the decision in Pankaja and another v. Yellapa, AIR 2004 SC 4102 which runs as follows: “If the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed.” In Pankaja and another (7 supra), the facts are as under: “As per the case of the plaintiffs, the defendant, in violation of the Court order, had further encroached into the suit property. Therefore, the plaintiffs sought for the amendment of the plaint for seeking the reliefs of declaration of ownership and possession of the said encroached area also. The said application was allowed by the trial Court. However, the Principal Civil Judge rejected the application for amendment on the ground that the application for amendment was filed at a belated stage. The High Court dismissed the revision on the said ground and also on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court permitted the amendment by allowing the appeals. The High Court dismissed the revision on the said ground and also on the ground that the amendment introduces a different relief than what was originally asked for. The Supreme Court permitted the amendment by allowing the appeals. “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.” 15. In Sampath Kumar v. Ayyakannu and another, (2002) 7 SCC 559 the facts and ratio are as hereafter: “A suit was brought in the year 1988 for perpetual injunction in respect of an agricultural land. Before the commencement of the trial in the year 1999, the plaintiff had moved the application for amendment of the plaint alleging that during the pendency of the suit, the defendant had forcibly dispossessed the plaintiff in the year 1989. On such averments, the plaintiff had sought for the relief of declaration of title to the suit property and consequential relief of recovery of possession. The defendant opposed the application of the plaintiff stating that he perfected title to the property by adverse possession and that the suit is barred by law of limitation and that a valuable right that accrued to the defendant is being sought to be taken away by way of the proposed amendment. The trial Court rejected the application for amendment observing that the appropriate course for the plaintiff was to bring a new suit. The High Court maintained the said order. The Supreme Court, while allowing the appeal of the plaintiff, referred to its earlier decisions and finally held as follows: “8. Rukhmabai v. Lala Laxminaraya and Ors.: [1960] 2 SCR 253, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 9. Rukhmabai v. Lala Laxminaraya and Ors.: [1960] 2 SCR 253, this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so. 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 amendment. 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 strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. 10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Anr. v. Mamtha Shenoy: AIR 2001 SC 2896 ). 11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. (See observations in Siddalingamma and Anr. v. Mamtha Shenoy: AIR 2001 SC 2896 ). 11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.” 16. Reverting to the case on hand, admittedly, the trial in the suit commenced as the plaintiff has already filed affidavit in lieu of chief examination as PW1 and the same was taken on file and the matter was posted for cross-examination of PW1. Even otherwise, as per the decision in Vidyabai (supra), the trial commenced on the day when the issues are framed being the date of first hearing. Even otherwise, as per the decision in Vidyabai (supra), the trial commenced on the day when the issues are framed being the date of first hearing. As such, the plaintiff has to satisfy the conditions in proviso to Order VI Rule 17 of the Code for permitting to make amendment to the plaint at this juncture. 17. As per the contention of the plaintiff, the cause of action for seeking the proposed amendments arose just before filing of the petition as the plaintiff was allegedly dispossessed on 10.05.2019. Thus, there was no occasion for the plaintiff to seek such reliefs when the suit was filed or any time thereafter till 10.05.2019. The instant application was filed on 03.06.2019. As such, the contention that the proposed relief is barred by limitation is not acceptable to decline the amendment at this stage with the available facts pleaded. Thus, the case of the plaintiff falls within the parameters stipulated in proviso to Order VI Rule 17 of the Code. 18. Be that as it may, as rightly and fairly conceded, the question whether or not the plaintiff would be entitled to the relief claimed and other allied questions cannot be prejudged while considering an application, which is filed for amendment of the plaint. The amendment is sought based on an event subsequent to the institution of the suit. Even assuming for a moment that the plaintiff ought to have sought the amendment of the plaint much earlier and not belatedly, what is to be noted is that the proposed amendment is being sought on the basis of events, which occasioned subsequent to the institution of the suit. Therefore, according to the plaintiff, the defendants are responsible for the events and but for their conduct, the plaintiff has no other option, except to seek the present reliefs. Even as per the precedential guidance of the Supreme Court, an amendment can be permitted, if it is intended to determine the real question in controversy and that all amendments which are necessary for the purpose of determining real questions of controversy between the parties, shall be allowed, if such amendments sought for do not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of the suit. Or else, in no case of suit for one relief such as permanent injunction , amendment can be permitted to alter relief to grant declaration of title, recovery of possession etc. The power of amendment should be exercised in the larger interests of doing full and complete justice between the parties and all amendments, which are necessary for the purpose of determining the real question in controversy, should be allowed. Further, if the granting of amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. The Court has also to consider whether the proposed amendment is intended to determine the real dispute between the parties. The law is well settled 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. If the amendment as proposed is allowed, no right accrued to the defendant would get defeated as the said defendants are denying the possession of the plaintiff and are contending that they are in possession of the property which was earlier in their occupation. Further, as the refusal of the request seeking amendment does not preclude the plaintiff from instituting a fresh suit, the refusal of the request leads to multiplicity of the litigation. In the well-considered view of this Court, if the amendment is permitted, the amendment which is based on events subsequent to the institution of the suit, though sought belatedly, also helps in avoiding the multiplicity of the proceedings and in setting at rest the dispute between the parties. Therefore, for all the aforesaid reasons, granting of amendment of the plaint really sub-serves the ultimate cause of justice and avoids further litigation and therefore, the amendment sought for by the plaintiff deserves to be allowed. 19. In the case on hand also, the trial has not concluded and the evidence on the side of the plaintiff is not yet closed. The plaintiff got marked exhibits and the suit is posted for cross-examination. The matter has not reached the stage of arguments. 19. In the case on hand also, the trial has not concluded and the evidence on the side of the plaintiff is not yet closed. The plaintiff got marked exhibits and the suit is posted for cross-examination. The matter has not reached the stage of arguments. The facts of present case are akin to the facts of the cases in Usha Devi and Sajjan Kumar (supra). On the ground of mere delay amendment cannot be refused, since the dominant purpose of the Rule is to minimize the litigation and to enable the parties to have all the issues relating to one dispute resolved in one suit. 20. As the disputed facts are part of trial, the veracity of the allegations made in the proposed amendment of the pleadings cannot be tested in the petition seeking amendment of the pleadings in this case. If the plaintiff is permitted to make the amendments, multiplicity of proceedings can also be avoided. There is no reason to interfere with the order impugned. There is no irregularity or illegality in the order under revision. 21. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this revision shall stand closed.