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2023 DIGILAW 207 (AP)

B. M. Rama Devi v. Gajula Gowramma

2023-01-25

B.S.BHANUMATHI

body2023
ORDER : 1. This Civil Revision Petition is filed under Article 227 of the Constitution of India against the orders dated 12.03.2020 dismissing the petition in I.A. No. 71 of 2020 in O.S. No. 36 of 2016 on the file of Senior Civil Judge’s Court, Punganur filed by the plaintiffs under Order VI Rule 17 CPC to permit them to amend the plaint in the description of the boundaries of the property shown in the schedule of the plaint as follows: Chittor District - Punganur Mandal - Melupatla village - Survey No. 132/7 wet land Ac. 0-78 cents Palki Ac. 0-25 cents. East: Tamarind Tree belongs to Ramaswamy Temple and land of others. West: Land of 1st plaintiff. North: Land of 1st plaintiff. South: Road. 2. The petitioners contended that the boundaries described in their registered sale deed dated 19-03-1971 were erroneously described in the plaint due to mistake in understanding the boundaries noted in the sale deed, because they were described in a manner different from the ordinary manner. 3. The petition was opposed by the defendants by filing counter stating that the petition was filed belatedly after 4 years of filing the suit with ulterior motives to protract the suit proceedings and the proposed amendment has effect of defeating the defence set up by the defendants and the cause of action for the suit would also change. 4. After hearing both parties, the trial Court dismissed the petition, holding that if the petition is allowed, it will change the entire nature of the suit and that the amendment was sought after lapse of nearly four years after filing the suit at a belated stage when the Court commenced the trial, without assigning any reasons for the delay. The trial Court further recorded that similar petition in I.A. No. 564 of 2016 was earlier filed under Order VI Rule 17 CPC on 01.11.2019, but the same was not pressed on 03-02-2020, after filing of the counter by the respondents, for the reasons best known to the petitioners and on the same day the present petition was filed. The trial Court held that the petition is devoid of merits. 5. The trial Court held that the petition is devoid of merits. 5. Having aggrieved by the order, the revision petition is filed stating that the amendments were sought due to typographical error and misinterpretation of the document while preparing the plaint and that the amendments are very much essential for proper appreciation of the evidence and further that the trial Court ought to have observed that no prejudice would be caused to the respondents, if the amendments are allowed. 6. Learned counsel for the revision petitioners submitted that the amendments must be ordinarily allowed, if no prejudice is caused to the respondents and that for the purpose of correcting the description of the plaint schedule property which occurred due to misdescription of the property, a fair opportunity be given to adjudicate the matter on merits. He placed reliance on the decisions of the Hon’ble Supreme Court in Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others, 2006 (3) ALD 61 (SC) and also the decision of this High Court in Allam Naga Raju and Others vs. Katta Jagan Mohan Reddy and Others, C.R.P. No. 2508 of 2013 dated 10.04.2014. 7. On the other hand, learned counsel for the respondents submitted that the trial Court has rightly dismissed the petition as the petitioners failed to disclose that the amendments could not have been taken earlier inspite of exercise of due diligence and more over the proposed amendments would change the nature of the suit and the cause of action. Learned counsel placed reliance on the decision of High Court of Telangana and Andhra Pradesh in Nandyala Sridevi vs. Gottimukkala Satyanarana Raju, C.R.P. No. 6995 of 2018 dated 30.11.2018. wherein there is an elaborate discussion of several decisions dealing with the provision in Order VI Rule 17 CPC and finally appreciated the matter in that case as to whether due diligence has been made out by the petitioner or not. 8. For better appreciation of the arguments, Provision under Order VI Rule 17 CPC exerted here-below: 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. 9. In Rajesh Kumar Aggarwal and Others vs. K.K. Modi and Others case (supra) it is held: “15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the commencement of the trial. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.” 10. In Allam Naga Raju and Others (Supra) it is held: “18. In the instant case, the learned trial Court had gone into the merits of the rival contentions of the parties. It is nothing but pre-judging the issue. While dealing with the amendment applications, it is absolutely not necessary and also impermissible to go into the merits of the respective contentions. The Court is only concerned as to whether an amendment which is sought for by a party can be allowed within the parameters of Order 6 Rule-17 CPC. Under law, it is quite permissible for a party to withdraw an admission which he previously made. Further, mentioning incorrect boundary cannot be treated as an admission of the fact by the plaintiffs. If misdescription of the property arises out of a genuine or bona-fide mistake, it can be correct even after passing of the decree also. If it is the case of the respondents/defendants that the petitioners/plaintiffs wantonly sought an amendment of northern and southern boundaries with the object of knocking away of their property, they can file additional written statement and contest the suit exposing the intention of the plaintiffs in obtaining amendment of the schedule. If it is the case of the respondents/defendants that the petitioners/plaintiffs wantonly sought an amendment of northern and southern boundaries with the object of knocking away of their property, they can file additional written statement and contest the suit exposing the intention of the plaintiffs in obtaining amendment of the schedule. But at the stage of dealing with the applications seeking amendment, the Court is not expected to deeply indulge in evaluating the respective cases of the parties and the Court is not supposed to reject the amendment application with a foregone conclusion as to the merits of the case. Such a course is not permissible within the framework of Order 6 Rule-17 CPC.” 11. In Nandyala Sridevi’s case, it is relevant to refer Para No. 59 wherein the decision of Hon’ble Supreme Court guidelines for granting or denying the relief claim under Order VI Rule 17 of CPC are summarized as follows: “59. In Rameshkumar Aggarwal vs. Rajamala Exports Private Limited and Others, AIR 2012 SC 1887 , the Apex Court relying on Revajeetu Builders and Developers vs. Narayanaswamy and Sons and Others, 2009 (8) SCJ 401 , to decide the scope of proviso to Order VI Rule 17 C.P.C laid down certain guidelines for granting or denying relief under Order VI Rule 17 of CPC viz. as follows: “On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the 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 nature and character of the case? (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. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 59. (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. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive. 59. It is clear that while deciding the application for amendment ordinarily the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala-fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 24. The Apex Court further held that “amendment application to be filed if necessary immediately after filing suit i.e. before commencement of trial. If the petitioners are able to prove or explain as to how they failed to take steps before the trial commenced despite exercising due diligence, the Court can allow such amendment. The factum of exercising due diligence depends upon circumstances.” 12. Keeping in view the above settled principles of law on this subject, each case is to be examined either to grant or to refuse the relief. When any amendment is sought to the pleadings before commencement of the trial, the amendment can be liberally allowed, provided, the same does not cause prejudice to the other side, whereas any amendment sought after commencement of the Act, in view of the amendment made to the provision by incorporating the explanation, there is obligation of the petitioner to show that such amendment could not be taken earlier inspite of due diligence. However, when there is need to allow the amendment for the purpose of determining the real question of controversy between the parties, there is always discretion to the Court. It is not absolutely prohibited to take any amendment after commencement of trial. 13. However, when there is need to allow the amendment for the purpose of determining the real question of controversy between the parties, there is always discretion to the Court. It is not absolutely prohibited to take any amendment after commencement of trial. 13. From the record, it is not known whether what is the exact prayer made in the earlier petition, however since the said petition was withdrawn, it is not necessary now to go into the said aspect. Here there are two aspects to be examined. Firstly, the necessity to make proposed amendments. Originally the suit was filed with the description of the property as follows: Chittor District - Punganur Mandal - Melupatla village - Survey No. 132/7 wet land Ac. 0-78 cents Palki Ac. 0-25 cents. East: Tamarind Tree belongs to Ramaswamy Temple and land of others. West: Land of 1st plaintiff. North: Land of 1st plaintiff. South: Road. 14. As can be seen from the document basing on which the suit was filed, the description of the boundaries of the property are as follows: Chittoor D.Z.P. Punganur Sub Division P.S. Punganur Grama Panchayat, Punganur Group, Rayal Thalavu Aasara. Sarkaru Nanja Survey No. 132.7 Pura 0.78 cents, Hec. 0.101. East to the land of Pooragala Gangulappa: South to Chinthamanu of Rama swamy temple: West to Road: North to your own land. 15. As contended by the petitioners, the manner of describing the boundaries is unusual and is in reverse style without proper space between the description of each boundary which ultimately caused confusion to a reader to understand the proper description of the boundaries. It is normal practice to describe the boundaries of a property by noting the property on each of its four sides. But, in the present case, in the sale deed, the property sold is identified with reference to the direction of properties in boundaries in which it exists. In other words, for example, instead of saying ‘X’ property exists on the east of this property, it is noted that this property exists on the west of ‘X’ property. Thus, it is clear that while drafting the plaint, there was confusion which led to misdescription of the boundaries. In other words, for example, instead of saying ‘X’ property exists on the east of this property, it is noted that this property exists on the west of ‘X’ property. Thus, it is clear that while drafting the plaint, there was confusion which led to misdescription of the boundaries. It is settled law that the procedures are handmaid of justice and that technicalities should not cause prejudice to the parties and the matter be decided on merits, rather than preventing the parties from seeking justice on substantial issues. In the present matter, since it is clear that there is no fault or negligence or malice on the part of the petitioners in misdescribing the boundaries while drafting the plaint and for proper adjudication of the dispute involved, it is necessary to have correct description of the boundaries, there is every need for allowing the amendment. As such, it does not cause prejudice to the other side. 16. In so far as the burden of the petitioners to show that they could not take this amendment earlier inspite of exercise of due diligence, no express reasons stated. However, from understanding attempts made by the petitioners in seeking the amendments, it cannot be said that they remained silent to seek the relief before commencement of the trial. As on the date of filing of the petition, as per the observation of the trial Court, it was at the stage of the commencement of the trial. The rider in the proviso has been incorporated with a view to curtail the delay in seeking the amendments and also to see that it would not cause difficulty in leading the evidence, because if the amendments are permitted after the commencement of the trial, entire exercise of leading evidence would be redirected and not only cause delay, but also result in complexity and expenditure of time and money. That does not mean that every case where the amendment is proposed after commencement of the trial, the amendment should not be allowed, though it is very much required. Therefore, discretion is given to the Court to exercise the same by considering the facts and circumstances in each case. Like in the present case, where there is genuine mistake which goes to the root of the dispute, it does not prevent the Court from allowing such amendment, in the interest of justice. 17. Therefore, discretion is given to the Court to exercise the same by considering the facts and circumstances in each case. Like in the present case, where there is genuine mistake which goes to the root of the dispute, it does not prevent the Court from allowing such amendment, in the interest of justice. 17. Learned counsel for the respondents submitted that PW-1 was examined in cross on 04.01.2023. However, it is to be noted that as on the date of filing of the petition or passing of the order, the witness i.e. PW-1 was not even cross-examined. Thereby there could have been an opportunity for PW-1 to file a fresh affidavit, if at all amendment was allowed at that juncture. Except filing the affidavit of PW-1, since witness was not cross-examined as on the date of filing of the petition or passing of the order, the trial Court ought to have allowed the petition. If at all, the delay in filing the petition caused inconvenience to the respondents, the same could have been compensated by awarding some terms as to costs. Therefore, the impugned order is liable to be set aside. 18. In the result, the Civil Revision Petition is allowed by setting aside the order dated 12-03-2020 in I.A. No. 71 of 2020 in O.S. No. 36 of 2016 on the file of the Court of Senior Civil Judge’s Court, Punganur. I.A. No. 71 of 2020 is allowed as prayed for, however, subject to condition that the petitioners shall pay the respondents/defendants Rs. 5000/- within fifteen (15) days from the date of this order, failing which the petition stands dismissed without any further order. 19. There shall be no order as to costs. 20. Pending miscellaneous petitions, if any, shall stand closed.