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2022 DIGILAW 254 (AP)

Kakarla Venkata Siva Rama Rao v. Darsi Suresh

2022-03-04

B.S.BHANUMATHI

body2022
ORDER : This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful plaintiff is directed against the orders dated 14.08.2019, of the learned Senior Civil Judge, Sattenapalli, Guntur District, passed in IA.No.718 of 2019 in OS.No.169 of 2013 filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (‘the Code’, for brevity) requesting to permit him to amend the plaint as described in the memo attached thereto. 2. Heard Mr. Anand Kumar Kochiri, learned counsel for the revision petitioner/plaintiff and Mr. M. Prasada Rao, learned counsel for the respondents/defendants. Respondents 1 to 10 are shown to be not necessary parties to this revision. The parties shall hereinafter be referred to as the plaintiff and defendants. 3. The case of the plaintiff, as stated in the affidavit filed in support of the request for amendment, in brief, is that the plaintiff filed the suit against the defendants for permanent injunction. Defendants 1 to 10 remained ex parte in the suit. Defendants 11 and 12 filed written statements separately and contested the suit. The plaintiff is the absolute owner of the plaint schedule property having purchased the same from its lawful owner, the Property Association of Baptist Churches Pvt. Ltd., through a registered sale deed and the plaint schedule property was delivered to the plaintiff on 13.09.2006. When the defendants tried to encroach the property, the present suit was filed. Defendants 11 and 12 filed written statement with a plea that the plaint schedule property belongs to American Baptist Foreign Mission Society and that the 11th defendant is its custodian, that the Property Association of Baptist Churches Pvt. Ltd., has no right or title over the plaint schedule property and its Additional Executive Director colluded with the plaintiff and filed O.S.No.118 of 2005 with a mala fide intention to grab the plaint schedule property. Though defendants referred to various court proceedings, they did not file even a piece of paper in support of their contention. Further, all the defendants, with an intention to grab the plaint schedule property, got filed O.S.No.191 of 2017 for a declaration that the sale deeds relating to the plaint schedule property as null and void and for other reliefs. The plaintiff herein is the 4th defendant in the said suit. Defendants 11 and 12 have recently trespassed into the plaint schedule property with a view to dispossess the plaintiff. The plaintiff herein is the 4th defendant in the said suit. Defendants 11 and 12 have recently trespassed into the plaint schedule property with a view to dispossess the plaintiff. Since the present suit is for permanent injunction only, it has become necessary for the plaintiff to seek amendment of the plaint to include the relief of declaration of title also. (b) The case against respondent No.10 is dismissed as abated on his death. However, a counter affidavit was filed on behalf of defendants 1 to 10 to the effect that on receipt of notices in the suit, defendants 11 and 12 filed an elaborate written statement stating that the vendor of the plaintiff has no valid right, title and permission from the competent authority to file the suit. The petition seeking amendment is barred by limitation. The plaint schedule property is in continuous and exclusive possession and enjoyment of the church authorities and that the plaintiff is never in possession and enjoyment of the plaint schedule property. The defendants have no necessity to trespass into the schedule property. The plaintiff, in order to obtain favourable orders from the Court, intentionally filed suit against defendants who, later, remained ex parte. The petition is liable to be rejected. (c) The 11th defendant filed counter opposing the petition and contending that the plaintiff was examined as PW1 and got examined one more witness as PW2. The 11th defendant was examined as DW1. The suit is coming for cross examination of DW2. The original owner of the plaint schedule property is American Baptist Foreign Mission Society and its Head Office is situated at Chennai. The Court below has no pecuniary jurisdiction to entertain the suit, if the amendment of plaint as sought for, is allowed. Hence, the petition is to be dismissed. (d) The 12th defendant filed counter opposing the petition and stating that trial in the suit was commenced and the plaintiff’s side evidence was closed. In the plaint, it is stated that the schedule property is in peaceful possession and enjoyment of the plaintiff. The present petition is filed contrary to the cause of action for filing the suit. The plaintiff came to the Court with unclean hands. The instant petition is filed after long lapse of 7 years after filing of the suit and that too, after the trial in the suit has commenced. The present petition is filed contrary to the cause of action for filing the suit. The plaintiff came to the Court with unclean hands. The instant petition is filed after long lapse of 7 years after filing of the suit and that too, after the trial in the suit has commenced. The vendor of the plaintiff has no legal and valid right, title to alienate the property. The plaintiff kept quiet all these years and filed the instant petition seeking amendment. The petition is not bona fide and devoid of merits and is liable to be dismissed. 4. At the time of enquiry, no oral evidence was adduced on either side and no documents were marked on the side of the parties. 5. On contest, the Court below dismissed the petition of the plaintiff. Hence, the aggrieved plaintiff is before this Court. 6. Before proceeding further, it is apt to extract the proposed amendments sought for by the plaintiff, which read as under:- 1. In para 3, after sub para (b) the following is to be added: “(c) The defendants 11 and 12 have filed their Written Statements separately, but almost with same contents. It is contended by them that the plaint schedule property belongs to American Baptist Foreign Mission Society and that the 11th defendant is the custodian of the plaint schedule property on behalf of the said Society, and thus the property is under his possession. They further contended that the title deed of the plaintiff is obtained through the Hon’ble Court of Prl. Senior Civil Judge, Narasaraopet, in a collusive manner and hence it is not valid. In addition, the 11th defendant got filed suit O.S.No.191 of 2017 on the file of this Hon’ble Court praying to declare that the registered deeds relating to the plaint schedule property are null and void. Under these circumstances, it became necessary for the plaintiff to seek the relief of declaration of his title to the plaint schedule property.” 2. In addition, the 11th defendant got filed suit O.S.No.191 of 2017 on the file of this Hon’ble Court praying to declare that the registered deeds relating to the plaint schedule property are null and void. Under these circumstances, it became necessary for the plaintiff to seek the relief of declaration of his title to the plaint schedule property.” 2. In para 5 particulars of valuation of the plaint, the existing para is to be substituted with the following: (1) This being a suit for declaration of the title of the plaintiff in respect of the plaint schedule property and for recovery of its possession, the relief is valued as under: Total value of the property as per market value Certificate dated 5-7-2019 issued by SRO, Sattenapalli is Rs.1,15,84,800 3/4th of the above is Rs.86,88,600 On which a court fee of Rs.89,426/-(Rupees eighty nine thousand four hundred twenty six only) is paid herewith according to Section 24(b) of APCF & SV Act, 1956 by way of remitting the amount in the bank account of the Hon’ble Court with Andhra Bank, Sattenapalli Branch and the relevant challan dated . . 2019 is filed herewith. (2) For consequential permanent injunction The plaintiff values the relief for Rs.1,10,000 On which a court fee of Rs.3,526/-(Rupees three thousand five hundred twenty six only) is paid herewith according to Sec.26 (c) of APCF & SV Act, 1956 by way of remitting the amount in the bank account of the Hon’ble Court with Syndicate Bank, District Court Branch, Guntur and the relevant challan dated 23-07-2012 is filed herewith. Total value of the suit is Rs.86,88,600/-+ Rs.1,10,000 Rs.87,98,600/- Total court fee paid is Rs.89,426/-+ Rs.3,526/- Rs.92,952/- (Rupees ninety two thousand nine hundred fifty two only). Total value of the suit is Rs.86,88,600/-+ Rs.1,10,000 Rs.87,98,600/- Total court fee paid is Rs.89,426/-+ Rs.3,526/- Rs.92,952/- (Rupees ninety two thousand nine hundred fifty two only). (3) In para 6 of the plaint, the existing para is to be substituted with the following: “Value of the suit for purpose of court fees and jurisdiction is the same as above mentioned i.e., Rs.87,98,800/-(Rupees eighty seven lakhs ninety eight thousand and six hundred only).” (4) In para 7 of the plaint, the reliefs (a), (b) and (c) are to be substituted as follows: “(a) to declare that the plaintiff is the full and absolute owner of the plaint schedule property and he is entitled for recovery of possession of the property, (b) for consequential permanent injunction restraining the defendants, their men, followers, associates, supporters from in any way interfering with or causing obstruction to the plaintiff’s peaceful possession and enjoyment of the plaint schedule property; (c) for costs of the suit; and (d) for such other reliefs as the Hon’ble Court deems fit and proper under the circumstances of the case.” 7. Admittedly, petition seeking amendment was filed at the middle stage of leading evidence by the defendants. Thus, the relief is governed by the proviso to Order VI Rule 17 of the Code, which reads as under : Order VI Rule 17: 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.” From the above, it is clear that a petition seeking amendment of the plaint can be filed at any stage of the proceedings, but if it is sought after the commencement of the trial, petition shall fall within the scope of the proviso to Order VI Rule 17 of the Code. Therefore, the plaintiff has to establish that such prayer could not have been taken before the trial has commenced, in spite of due diligence. 8. Therefore, the plaintiff has to establish that such prayer could not have been taken before the trial has commenced, in spite of due diligence. 8. The revision petitioner/plaintiff placed reliance on the decision of High Court of Madras in Thiru Alankadu Immudi Ahora Dharma Sivachariar case, 2005 Law Suit (Mad) 869, wherein guidelines for consideration of petition under Order VI Rule 17 of the Code have been enumerated at para (5), which are as follows : “(1) The general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred. (2) It is well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. (3) The object of Courts and rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. Further, a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. (4) Even though the amendment sought to be made is subject to law of limitation, if the cause of action is not going to be changed, it is open to the affected party to take necessary steps for amendment of the plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party of lapse of time. (5) For merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced that the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer to the same and that certainly the additional pleadings may take in also the plea of bar of limitation. (6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the amendment being ordered. (6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the amendment being ordered. The amendment application should be allowed, since it is not going to change the nature of the plea nor does it affect the rights of the defendants. The defendants are entitled to put-forward all their contentions even after the amendment is allowed. (7) The question of limitation should not have been decided by the Court below at present, since it is a question to be decided on merits with oral and documentary evidence. At present, we are concerned with the amendment application, which is governed only under Order 6, Rule 17, C.P.C. The amendment application should be allowed, if it is not going to change the nature of suit nor does it affect the rights of the defendants. (8) The basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court, it is open to the plaintiff to file a fresh suit and that is one of the reasons, which has prevailed with the trial Court. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief, which could be prayed for in a new suit, cannot be permitted to be incorporated in the pending suit. (9) 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. (10) 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. 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. (11) The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. (12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an admitted fact. While the defendants pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the plaintiffs in this case ought to have been within three years when the right to sue first accrued, the plaintiffs contend that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule to the Limitation Act, which provides for a limitation of 12 years, therefore, according to them, the prayer for declaration of title is not barred by limitation. In such a situation, where there is a dispute as to the bar of limitation, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea of limitation, being disputed, could be made a subject-matter of the issue, after allowing the amendment prayed for.” 9. Learned counsel for the petitioner relied on a decision in Mount Mary Enterprises v. Jivratna Medi Treat Private Limited, (2015) 4 SCC 182 , in support of the contention that amendment application should normally be granted unless by virtue of amendment, nature of suit is changed or some prejudice is caused to the defendant in which the earlier decision of the Supreme Court in Pirgonda Hongonda Patil v. Kalgoda Shidgonda Patil, AIR 1957 SC 363 has been referred and relied on. The decision in Pirgonda Hongonda Patil v. Kalgoda Shidgonda Patil states as follows : “10. The decision in Pirgonda Hongonda Patil v. Kalgoda Shidgonda Patil states as follows : “10. …….We think that the correct principles were enunciated by Batchelor, J. in his judgment in the same case viz., Kisandas Rupchand case when he said at pp.649-650: “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...but refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine….” On the same aspect, the decision in Surender Kumar Sharma v. Makhan Singh, 2009 Law Suit (SC) 1597, wherein at para no.7, it was held that it is well settled that under Order VI Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper and further belated application seeking amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. 10. Learned counsel for the petitioner also relied on a decision in G.S. Prakash v. Polasa Hanumanlu, C.R.P.No.2900 of 2013, dated 18.07.2014 (APHC), wherein this Court summarised the instances where the amendments have to be allowed and where the same have to be refused. 10. Learned counsel for the petitioner also relied on a decision in G.S. Prakash v. Polasa Hanumanlu, C.R.P.No.2900 of 2013, dated 18.07.2014 (APHC), wherein this Court summarised the instances where the amendments have to be allowed and where the same have to be refused. Such instances are enumerated hereunder : Instances where amendments have to be allowed: (a) All pre-trial stage (prior to examination of witnesses) amendments which do not alter the nature and character of the suit and substitute or introduce new cause of action; (b) In cases of pending or post-trial amendments, the Court must allow the same subject to the applicant, in addition to satisfy the condition (a) supra, satisfying two other conditions, viz., (i) that the amendment is necessary for determining the real questions in controversy and (ii) that despite due diligence, the applicant could not move the application at an earlier stage; (c) Where, the proposed amendment will not work injustice or cause prejudice to the other side; (d) Where, by the proposed amendment the position of the other party will be altered, but the same can be compensated by costs; (e) Even where the proposed amendment introduces inconsistency in pleadings, if by the proposed amendment, the party does not seek to resile from the admissions if any made in the original pleadings; (f) Where the proposed amendment relates to a time barred claim and the Court is satisfied that allowing such amendment really sub-serves the cause of justice and avoids further litigation. Instances where amendments have to be refused: (i) Whereby the proposed amendment the party seeks to alter the nature, character and constitution of the suit (mere inconsistent pleadings may not, in all cases, change the nature and character of the suit) or substitute cause of action or introduce a distinct cause of action; (ii) Where the valuable defence by way of admissions by a party has accrued to the opposite party and by the proposed amendment the party intends to resile from such admissions; (iii) Where the position of the other party will be altered by the proposed amendment and the injury caused to him by such alteration could not be compensated in costs. (iv) Where the proposed amendment lacks bona fides and is far too belated and the party seeking the amendment was not diligent in approaching the court; (v) Where a fresh suit, if instituted on the proposed amendments, will be barred by law. 11. Learned counsel laid emphasis on guideline Nos.10, 11 & 12 in the case of Thiru Alankadu Immudi Ahora Dharma Sivachariar’s case (supra), specifically and contended that when there is no prejudice to the opposite party, the amendments can be allowed and that the amendment need not be declined on grounds of mere limitation to seek proposed relief(s). Countering the arguments, the learned counsel for the respondents submitted that the defendants would suffer prejudicially as the whole suit is being changed, that too, when reliefs are barred by time as the amendments are proposed seven (7) years after filing of the suit. 12. The period of limitation cannot be reckoned from the date of filing of the suit, but from the date of cause of action arose. Point No.12 of the above decision makes it clear that it is a matter to be adjudicated later as it is a mixed question of fact and law. Point No.11 speaks of more liberal approach even when relief is barred by limitation, if the amendment subserves the ultimate cause of justice. Therefore, merits have to be examined to decide whether the amendments can be permitted or not, in the light of the facts in each case. 13. The question of prejudice not being caused to the opposite party may be only an additional consideration, if otherwise the party seeking amendment is entitled to the amendment sought for. 14. Since the amendments were sought at the middle of the trial, the petitioner has to satisfy Court that in spite of due diligence, the petitioner could not have raised the matter before the commencement of trial as required under Order VI Rule 17 of the Code. Therefore, merely because there exist a dispute between the parties, the amendment cannot be permitted. In addition to the existence of the dispute, exercise of due diligence as required under the proviso to Order VI, Rule 17 of the Code is required. Therefore, merely because there exist a dispute between the parties, the amendment cannot be permitted. In addition to the existence of the dispute, exercise of due diligence as required under the proviso to Order VI, Rule 17 of the Code is required. It is argued by the learned counsel for the defendants that there is no due diligence on the part of the plaintiff as the plaintiff now very long after filing the written statements, sought amendment contending that the proposed amendments are necessitated in view of the pleadings taken in the written statements of defendants 11 and 12. In reply, it is contended by the plaintiff that as the plaintiff was recently dispossessed, there was no occasion to take such a plea at any prior point of time. 15. The plaintiff has stated in the affidavit that the defendants 11 & 12 have recently trespassed into the plaint schedule property in order to dispossess him from the schedule property. However, the plaintiff further stated in the affidavit that defendants 11 & 12 filed written statement taking plea that the plaint schedule property belongs to American Baptist Foreign Mission Society and that the 11th defendant is the custodian of the property on behalf of the said society and thus the property is under his possession. It is also stated that all these circumstances warranted the plaintiff to get his title declared in respect of the plaint schedule property and as the suit for perpetual injunction is not adequate to get such relief, the present petition is filed to avoid multiplicity of proceedings. 16. It is clear that the plaintiff’s title has been denied, even to his knowledge, when the written statements were filed. The only averment made with regard to dispossession is that ‘the defendants recently trespassed in order to dispossess the plaintiff.’ But, how long back or exactly when such trespass was made is not disclosed. The period or date is relevant to know about the stage when the plaintiff could have asked for these amendments. However, one thing is clear that in spite of having knowledge about denial of title in the written statements due to which the plaintiff is now proposing to get the plaint amended, he waited from the time before framing of issues till the time when the evidence of defendants is under way. However, one thing is clear that in spite of having knowledge about denial of title in the written statements due to which the plaintiff is now proposing to get the plaint amended, he waited from the time before framing of issues till the time when the evidence of defendants is under way. Thus, at least, to that extent, it can be observed that the plaintiff was not diligent enough to take appropriate steps at the earliest possible time. 17. In Abdul Rehman and Another v. Mohd. Ruldu and Others, 2012 Law Suit (SC) 642, the Supreme Court while reiterating the earlier view, it is further held as follows : “All amendments which are necessary for the purpose of determining real questions in 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.” 18. When a suit for perpetual injunction is to be amended as a suit for declaration of title and recovery of possession etc., in a fit case, for instance, where there is change in the circumstances subsequent to filing of the suit, such amendment(s) can be allowed in spite of change in the cause of action and the nature of relief(s), provided the basic nature of the suit is not changed as held in Abdul Rehman (6 supra). Thus, the contention of the defendants that the petition is not maintainable as the proposed amendments totally change the cause of action cannot be accepted. 19. The plaintiff wants to get the plaint amended to alter the relief of mere decree for perpetual injunction to one of declaration of title, recovery of possession and consequential permanent injunction. Initially, when the suit was filed and the evidence was lead, till filing of the petition, it is the consistent case and evidence of the plaintiff that he has been in possession of the plaint schedule property. Now, as can be seen from the proposed amendment in the pleading as shown in para (c) to be incorporated, there is not even a whisper about dispossession or the need for seeking the relief of recovery of possession. Now, as can be seen from the proposed amendment in the pleading as shown in para (c) to be incorporated, there is not even a whisper about dispossession or the need for seeking the relief of recovery of possession. However, an amendment seeking recovery of possession is also sought in the plaint at paragraph no.7 by substituting a new prayer as shown in the memo enclosed to the petition. As is recorded above, a vague reference is made in the affidavit enclosed to the petition to substantiate his case that defendants 11 & 12 recently trespassed into the plaint schedule property in order to dispossess him from the schedule property. 20. At the cost of repetition, it is to be noted that the plaintiff has not disclosed about how long back or when such act of trespass was committed. No such averment is sought to be incorporated in the proposed amendment of the plaint. Thus, in the absence of a pleading, no amount of evidence can be lead nor can a prayer be sought. When it is the case of the plaintiff that he has been in possession, without averring in the plaint as to when he was dispossessed, there is no occasion for him to seek the relief of recovery of possession. 21. It is also vehemently contended by the defendants that the plaintiff failed to seek the relief of declaration of title as against the original owner, American Baptist Foreign Mission Society, and since the 11th defendant is only a custodian of the property of the original owner, the suit as proposed to be amended does not lie. In spite of such averment taken in the counter, the plaintiff failed to take appropriate step(s). Moreover, this plea of ownership of the society is taken not just for the first time in the counter, but also taken in the written statements. Therefore, in the absence of relief of declaration being claimed against the original owner, even if such a plea is allowed to be taken now only against the person, who is in alleged custody of the property, such a plea does not survive. On this ground also, the revision petition has no merit. 22. Therefore, in the absence of relief of declaration being claimed against the original owner, even if such a plea is allowed to be taken now only against the person, who is in alleged custody of the property, such a plea does not survive. On this ground also, the revision petition has no merit. 22. For the reasons stated in the foregoing discussion, this Court finds that the revision petitioner could not make out a valid case in support of his claim seeking amendment of the plaint, warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 23. For all the above reasons this Court finds that there is no merit in the revision petition and the revision petition is liable to be dismissed being devoid of merit. 24. 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.