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2023 DIGILAW 1056 (AP)

Thirumala Muni Krishna v. S. Shoukath Ali

2023-07-12

B.S.BHANUMATHI

body2023
ORDER : 1. C.R.P.Nos.736, 737 & 738 of 2023, under Article 227 of the Constitution of India, are preferred by the plaintiffs challenging the common order, dated 09.02.2023, dismissing I.A.Nos.382 of 2022, 383 of 2022 and 384 of 2022 in O.S.No.103 of 2015 on the file of the Court of the Senior Civil Judge, Punganur, whereas C.R.P.No.739 of 2023 is preferred against the order, dated 09.02.2023, passed in I.A.No.385 of 2022 in the same suit. 2. Heard Sri S.V. Muni Reddy, learned counsel for the revision petitioners/plaintiffs. In spite of service of notice on the 1st respondent, no appearance has been made and the 2nd respondent was shown as died even before the trial Court. 3. I.A.No.382 of 2022 is filed under Section 151 CPC to reopen the suit for the purpose of marking the documents; I.A.No.383 of 2022 is filed under Order 18 Rule 17 CPC read with Section 151 CPC to recall PW1 and to mark the documents; I.A.No.384 of 2022 is filed under Order VII Rule 14(3) CPC read with Section 151 CPC to receive the documents by condoning the delay. I.A.No.385 of 2022 is filed under Order VI Rule 17 CPC read with Section 151 CPC and Rule 28 of Civil Rules of Practice to permit the petitioners to amend the plaint and also to make necessary consequential amendments. 4. The case of the revision petitioners/plaintiffs in support of their case, briefly stated, is as follows: (a) The suit is posted to 05.12.2022 for arguments. At the time of filing of the suit, the plaintiffs handed over the link documents to their previous counsel but, he failed to file the same. Hence, he is now filing the list mentioned certified copies of various sale deeds obtained recently. Therefore, the petitions, viz., I.A.Nos.382, 384 & 383 of 2022 to reopen the suit, to receive the documents and to recall PW1 for the purpose of marking the same through him were filed. The list of documents is indicated in the proposed amendments to the plaint in the later part of this order. So, to avoid repetition, they are not noted here. The list of documents is indicated in the proposed amendments to the plaint in the later part of this order. So, to avoid repetition, they are not noted here. (b) I.A.No.385 of 2022 is filed alleging that the suit was filed against the defendants for permanent injunction to restrain the defendants not to enter into the suit schedule property, that at the time of filing of the suit, the plaintiffs handed over the link documents to their previous counsel and he has not filed the said documents into the Court, that the defendants denied the right, title and possession of the plaintiffs over the suit schedule property. Hence, they are advised to amend the plaint pleadings seeking declaration of their right and title over the suit schedule property and consequential relief of permanent injunction. 5. Counter affidavit was filed opposing the petitions. It is stated that the documents sought to be filed are no way connected to the suit and that the petitions are intended to drag on the matter unnecessarily to harass the defendant without any reasonable cause. It is prayed to dismiss the petitions. 6. After hearing both parties, the trial Court, by way of common order, dated 09.02.2023, dismissed I.A.Nos.382 of 2022, 383 of 2022, 384 of 2022 and by a separate order of even date, the trial Court dismissed I.A.No.385 of 2022 also. 7. Aggrieved by the common order, dated 09.02.2023, passed in I.A.Nos.382 of 2022, 383 of 2022, 384 of 2022, C.R.P.Nos.736, 737 & 738 of 2023 are preferred, and whereas aggrieved by order, dated 09.02.2023, passed in I.A.No.385 of 2022, C.R.P.No.739 of 2023 is preferred. In the grounds of revisions, the petitioners reiterated their pleaded case. 8. Since all these revisions are connected, they are heard together and are being disposed of by this common order. C.R.P.Nos.736, 737 & 738 of 2022: 9. Learned counsel for the petitioners submitted that the documents proposed to be filed are very much required to prove the case of the petitioners and that they were, in fact, handed over to the earlier counsel on record but they were somehow not filed and that there is no willful default on the part of the petitioners, but the trial Court has not properly appreciated the same and dismissed the petitions. 10. 10. The trial Court dismissed the petitions observing that all the documents mentioned were obtained only in the year 2022 before filing the petition to receive documents, and therefore, the reason stated by the petitioners cannot be believed and further that there is no reference about these documents in their pleadings and also noted that the petitioners did not assert any reason as to why they kept quiet for all these years without filing them. 11. Since the very reason assigned by the petitioners to file these documents at this juncture is that earlier their documents were given to the counsel, but not filed, it is but natural for them to obtain the documents recently before filing the petition. Hence, there is no reason to decline them. So long as the earlier counsel was on record, the petitioners personally might not take decisions on the procedural aspects. As such, the petitioners cannot be blamed for not filing them earlier. So, it is incorrect to observe that the petitioners are silent for all these years without taking any steps. 12. Insofar as the relevance of the documents to the case is concerned, the petitioners stress their strength of their case on the documents sought to be filed. Even the respondent did not oppose the petition on the ground that they are not relevant to the case. The documents also indicate the same. As such, it is necessary to permit the petitioners to file the proposed documents and consequently, the suit is to be reopened and PW1 is to be recalled. Accordingly, I.A.Nos.382, 383 & 384 of 2022 shall stand allowed. C.R.P.No.739 of 2023: 13. The particulars of amendment of pleadings sought by the plaintiffs in I.A.No.385 of 2022 read as follows: 1) Please add Para No.7(a) as: a) Market value of the suit property is Rs.47,19,000-00 b) Half of the same for the purpose of declaration Rs.23,59,500-00 of right and title of the plaintiffs over the suit property and for consequential permanent injunction over the same is: For the purpose of Court fee and jurisdiction the suit is valued at rs.23,59,500/- and a Court fee of Rs.24,026/- is paid under Section 24(b) of A.P.C.F. Act. 2) Please delete in para No.8(a) and add in its place as “Declaring the exclusive right and title of the plaintiffs over the suit schedule property and restrain the defendants, their men and their agents from in any way interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property by plaintiffs by granting consequential relief of permanent injunction. 3) Please add the documents in the list of documents mentioned hereunder from 3rd document to 21st documents: 3. 10-12-1970 : Certified copy of Registered sale deed executed by Kasai Hussain Bee to Yelduru Munuswamy, along with computerized copy 4. 27-11-1978 : Certified copy of Registered sale deed executed by K. Hussain Bee in favour of one Y.Munu swamy along with computerized copy 5. 01-07-1980 : Certified copy of Registered sale deed executed by K Hussain Bee in favour of C.Narayanappa, along with computerized copy 6. 27-03-1981 : Certified copy of Registered sale deed executed by K Hussain Bee in favour of B. Venkatappa, along with computerized copy 7. 13-03-1986 : Certified copy of Registered sale deed executed by Kasai Hussain Bee in favour of S. Mohammad Basha along with computerized copy 8. 26-03-2013 : Certified copy of Registered sale deed executed by Kasai Hussain Bee in favour of K. Govindamma, along with computerized copy 9. 26-03-2013 : Certified copy of Registered sale deed executed by Kasai Hussain Bee in favour of D. Lingappa 10. 26-03-2013 : Certified copy of Registered sale deed executed by S.K Hussain Bee in favour of M. Hemantha Kumar 11. 26-03-2013 : Certified copy of sale deed executed by S.K. Hussain Bee in favour of S.Mohammadali 12. 26-03-2013 : Certified copy of Registered sale deed executed by S. K Hussain Bee in favour of K. Manjulamma 13. 26-03-2013 : Certified copy of Registered sale deed executed by S.K Hussain Bee in favour of K. Subramanyam 14. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of Y. Prameela 15. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of M. Nagarajachari 16. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of V. Ramadevi 17. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of K.Ramesh Kumar 18. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of M. Nagarajachari 16. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of V. Ramadevi 17. 26-03-2013 : Certified copy of Registered sale deed executed by S.K. Hussain Bee in favour of K.Ramesh Kumar 18. 02-08-2000 : Registered sale deed executed by K. Bhadruddin in favour of Matam Narayanappa 19. 27-05-2000 : Registered sale deed executed by K. Bhadruddin in favour of A. Saleem Saheb 20. 07-12-2006 : Registered sale deed executed by A.Saleem in favour of A. Shama 21. 03-08-2022 : Valuation certificate issued by S.R.O., Punganur 14. Learned counsel for the petitioners submitted that the proposed amendments seeking prayer for declaration of title apart from the relief of perpetual injunction is very much required, in view of the contentions raised by both parties. He further submitted that as there is no change in the facts pleaded and the evidence lead, mere amendment seeking declaration of right and title would not change the nature of the suit and moreover, mere allowing the petition to amend the pleadings would not amount to accepting the plea as proved or granting the relief prayed and so no prejudice would be caused to the other party; but, on the other hand, allowing such amendment would enable proper adjudication of all the disputes between the parties and it would not relegate the parties to go for multiplicity of proceedings. He placed reliance on the decision of the Supreme Court in Abdul Rehman & Another v. Mohd. Ruldu & Others, (2012 ) 11 SCC 341 and also the decision of this High Court in Sanapala Ramanujulu @ Ramanuja Charyulu v. Sanapala Sridhrudu (died) and others, 2014 (2) Andh LD 365. 15. In Abdul Rehman & Another v. Mohd. Ruldu (supra), it was held at paragraph Nos.13 to 15 as follows: “13. In view of the stand taken by the Respondent Nos. 1-3 herein/Defendant Nos. 1-3 in their written statement and the observation of the High Court in the application filed for injunction, we are of the view that the proposed amendment to include a relief of declaration of title, in addition to the permanent injunction, is to protect their interest and not to change the basic nature of the suit as alleged. 14. In Pankaja and Anr. v. Yellapa (Dead) By L.Rs. 14. In Pankaja and Anr. v. Yellapa (Dead) By L.Rs. and Ors. [ AIR 2004 SC 4102 : (2004) 6 SCC 415 ], this Court held that if the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title. 15. We reiterate that all amendments which are necessary for the purpose of determining the 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.” In Sanapala Ramanujulu @ Ramanuja Charyulu (2nd supra), it was held at paragraph Nos.14, 16, 22 and 23 as under: “14. Since the prayer sought in the amendment by the petitioner relates to the same property in respect of which earlier he had sought the relief of injunction, I am of the opinion that the amendment would be necessary for the purpose of determining the real questions in controversy between the parties. Therefore, in view of the above decision, I am of the opinion that the trial Court had erred in rejecting the amendment on the ground that the application seeking amendment was made at the stage of arguments. 16. In Rajesh Kumar Agarwal's case (supra), the Supreme Court also observed: ‘20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.’ 22. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.’ 22. This Court had taken a view in Adusumilli Venkateswar Rao and another v. Chalasani Hymavathi [ AIR 1990 AP 161 ], that a suit for perpetual injunction can be amended into a suit for possession and that there will be no change in the cause of action if such amendment is permitted. Therefore, in this view of the matter, I am not inclined to follow the said judgment. 23. Considering that the purpose of allowing the amendment is to minimize the litigation, the power to allow amendment has to be literally exercised subject to proviso to Order VI Rule 17 CPC. The mere fact that an amendment is permitted does not mean that the Court has accepted the plea of the petitioner that the pleadings sought to be included by way of amendment are true or that the petitioner is entitled to the relief sought by way of amendment. The defendants would have an opportunity to file additional written statement raising all pleas open to them including the plea that the relief sought is barred by limitation or that such a relief cannot be granted in the absence of prayer for relief of declaration.” 16. As can be seen from the pleadings in the plaint and written statement, there is a dispute of title and the petitioners proposed to file additional documents also for better adjudication of the dispute involved in the suit. It is clear that a deep enquiry is necessary for comprehensive adjudication of the dispute involved in this case. As rightly contended, to avoid multiplicity of proceedings and also to completely resolve the dispute between the parties in respect of the same property, amendment to the prayer can be permitted more particularly when no change in the plaint regarding the facts except the amendment of the prayer and some documents to be filed in support thereof. As such, in the present case, it cannot be said that by adding the amendment seeking prayer for declaration of right and title besides perpetual injunction would change the nature of the suit. 17. As such, in the present case, it cannot be said that by adding the amendment seeking prayer for declaration of right and title besides perpetual injunction would change the nature of the suit. 17. Normally, by virtue of Order VI Rule 17 CPC which imposes a restriction to permit amendment of pleadings after commencement of trial, it is required to show that such amendment could not be proposed earlier in spite of exercise of due diligence. It is required for the petitioners to establish the same. In this case, petitioners are not at fault in not seeking such relief and for no fault of them, it cannot be said that they failed to exercise due diligence to take up such relief before the commencement of trial. As such, the impugned order is liable to be set aside and the petitioners can be permitted to make the above amendments proposed to the plaint. 18. In the result, all these revision petitions are allowed setting aside the common order, dated 09.02.2023, passed by the Senior Civil Judge, Punganur, in I.A.Nos.382 of 2022, 383 of 2022 and 384 of 2022 as well as the order, dated 09.02.2023, passed in I.A.No.385 of 2022 in O.S.No.103 of 2015 and allowing the said applications. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.