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2023 DIGILAW 33 (AP)

A Sivayya, E. Godavari Dist v. Govt. of A. P.

2023-01-04

BANDARU SYAMSUNDER

body2023
ORDER : This Civil Revision Petition is filed by the petitioners/plaintiffs under Article 227 of the Constitution of India against the orders passed by learned III Additional District Judge, Kakinada, in I.A.No.1801 of 2016 in O.S.No.130 of 2009, dated 23.09.2016, wherein and whereby learned trial Judge dismissed the petition filed by the petitioners/plaintiffs under Order VI Rule 17 of Civil Procedure Code (in short C.P.C) seeking amendment of plaint claiming more amount of compensation as a ancillary relief to their main relief of declaration of their title and recovery of possession. 2. The case of the petitioners before the trial Court in brief is that they filed suit against the respondents for declaration of their title in respect of plaint “A” to “D” plaint schedule properties with consequential relief of recovery of possession and in alternative claimed compensation which estimated to an amount of Rs.1,14,11,010/- together with future interest. It is the contention of the petitioners that “A” to “D” plaint schedule properties are their exclusive properties which respondent/defendant have highhandedly occupied without initiating any Land Acquisition proceedings due to that they filed suit for declaration of their title, recovery of possession and they also sought for alternative relief of claiming compensation. The contention of the petitioners is that suit has been filed in the year, 2009, but old Land Acquisition Act, 1/1894 has been repealed and now new Act i.e., The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013, came into force and as per that Act they intended to sought alternative relief praying enhancement of compensation. The amendment sought by the petitioners is extracted herein under:- “I. To add the following at the after paragraph 21:- “21(A):- As submitted herein above possession of the plaint schedule lands were taken by defendant, through Land Acquisition Officer, in violation of and circumventing provisions of law of Land Acquisition as it was standing in the year, 2009 i.e., per Act I of 1894. Therefore, ownership in schedule lands never stood transferred in favour of defendant till date. Therefore, defendant is liable to pay fair and just compensation to plaintiffs. In the context of payment of compensation to plaintiffs it is the provisions of law as are enumerated in “The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 (Act No.30/2013)” that shall be applied for evaluating compensation payable to plaintiffs. Therefore, defendant is liable to pay fair and just compensation to plaintiffs. In the context of payment of compensation to plaintiffs it is the provisions of law as are enumerated in “The Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 (Act No.30/2013)” that shall be applied for evaluating compensation payable to plaintiffs. At a moderate estimate in terms of Act 30/2013 the compensation payable to plaintiffs would be not less than Rs.7,00,83,577/-@ Rs.4,500/- per square yard of plaintiffs site, as the market value of the schedule property was at least Rs.750/- and the value of assets attached to the land are to be taken at least @ Rs.16,17,517/-. II. To amend paragraph 25 as follows i.e., The valuation of the alternative relief as follows: (a) to substitute the figure Rs.4,500/- for the figure Rs.750/- appearing in Clauses (a); (b); (c) and (d). III. Substitute the figure “Rs.1,39,14,000/-“ for “Rs.23,19,000/-“ appearing in Clause (a); Substitute the figure “Rs.65,61,000/-“ for “Rs.10,93,500/-“ appearing in Clause (b); Substitute the figure “Rs.3,44,54,610/-“ for “Rs.57,42,435/-“ appearing in Clause (c); Substitute the figure “Rs.1,35,36,450/-“ for “Rs.22,56,075/-“ appearing in Clause (d); Substitute the figure “………” for “………” Being the Court fee payable thereon IV. To amend paragraph 26(d) as follows: “to substitute the figure “Rs.7,00,83,577/-“ for the figure “Rs.1,14,11,010/-“; and as per provisions of “Fair Compensation Act”. V. To suffix the following to para 26(d): “and grant all other reliefs as are available under provisions of Fair Compensation Act”. 3. For which the respondent/defendant filed counter denying averments in the affidavit of the 1st petitioner before the trial Court. It is the contention of the respondent that present amendment sought by the petitioners is highly belated stage, which cannot be permitted when the suit is coming up for arguments in view of amended provisions of Civil Procedure Code. They also stated that the new Land Acquisition Act has no retrospective effect and it has only prospective effect unless the right of the petitioners is declared, they are not entitled to seek any compensation from them and relief which sought by the petitioners in the plaint itself is not maintainable as present amendment if allowed will change the scope of the suit. They pray to dismiss the suit. 4. They pray to dismiss the suit. 4. Learned trial Judge after hearing both sides, dismissed the petition filed by the petitioners by observing that “if the petitioners are permitted to amend the suit, which is for valuation of the suit, but not for amendment of the pleading, the entire scope of the suit will be changed”. 5. Aggrieved by the orders passed by the learned trial Judge, the present Civil Revision Petition is filed by the petitioners/plaintiffs stating that impugned order of the trial Court is contrary to law, weight of evidence and probabilities of the case. They submit that present amendment will not change the nature of the suit and in the impugned order, trial Court erroneously observed that they are not entitled for compensation as per the new Act. They pray to allow the revision petition. 6. I have heard learned counsel for the revision petitioners Mr.Sashi Bhushan as well as learned counsel Mr.K.Srinivas, representing on behalf of Assistant Government Pleader for Arbitration. 7. Learned counsel for the revision petitioners would submit that the petitioners filed suit for declaration of their title, recovery of possession with an alternative relief of claiming compensation as per old Land Acquisition Act which repealed and new Act came into force in the year, 2013, due to that the petitioners intended to claim compensation as an alternative relief as per provisions of new Land Acquisition Act. He would further submit that the present amendment will not change the nature of the suit except claiming an enhancement of compensation. It is the contention of the learned counsel for the revision petitioners that when amendment sought will not change the cause of action and nature of the suit, which cannot be dismissed on the ground that trial of the suit has been commenced. He relied on decision in Sampath Kumar … Appellant Vs. Ayyakannu and another … Respondents (2002) 7 Supreme Court Cases 559 wherein it is held that delay alone is not a criteria for dismissing the petition filed for seeking amendment of the plaint. (The ratio laid down by the Hon’ble Apex Court in the above referred decision while considering the application for seeking amendment filed prior to the amendment of the Civil Procedure Code, in the year, 2002.) He prays to allow the petition. 8. (The ratio laid down by the Hon’ble Apex Court in the above referred decision while considering the application for seeking amendment filed prior to the amendment of the Civil Procedure Code, in the year, 2002.) He prays to allow the petition. 8. Learned counsel for the respondent would submit that when the petitioners are not entitled for any declaration and recovery of possession due to that no Land Acquisition proceedings are initiated question of granting compensation does not arise and present amendment is not necessary to decided main suit. He would further submit that the Land Acquisition new Act 30/2013 has only prospective effect, the provisions of that Act cannot be applied to the petitioners. He prays to dismiss the revision petition. 9. Now, the issue that emerges for consideration by this Court is: "Whether the orders under challenge are sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of the Constitution of India?" POINT: 10. Before going to the merits of the case, it would be beneficial to quote Order VI Rule 17 CPC, which reads as under: “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 inspite of due diligence, the party could not have raised the matter before the commencement of trial.” 11. The Hon’ble Apex Court in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Another, in Civil Appeal No.5909 of 2022 dated 01.09.2022, laid down principles while considering application filed seeking amendment of plaint under Order VI Rule 17 of C.P.C. The Hon’ble Supreme Court held at Para 70 of the Judgment, which reads as under: “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed. (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)” 12. In the present case, the suit is filed by the petitioners against the respondent for declaration of their title and recovery of possession of “A’ to “D” plaint schedule properties with an alternative relief of claiming compensation on the ground that for any reason trial Court come to conclusion that they are not entitled for recovery of possession sought relief of compensation in accordance with provisions of Land Acquisition Act. For which the contention of the respondent is that plaint schedule land is not belong to the petitioners due to that the question of initiating Land Acquisition proceedings does not arise due to that petitioners are not at all entitled to claim any compensation, but they came up with petition to amendment of the plaint claiming more compensation when the matter is coming up for arguments, which is not maintainable. It is not in dispute that petitioners have filed present petition seeking amendment of plaint when main suit was coming up for arguments. It is also not in dispute that the old Land Acquisition Act 1/1894 has been repealed and new Act, which is the Right to Fair Compensation And Transparency in Land Acquisition, Rehabilitation And Resettlement Act, 2013 came into force. Whether petitioners are entitled to relief of declaration of their title and recovery of possession or alternative relief of compensation can only be decided in the main suit. The observation of learned trial Judge that if the petitioners are permitted to amend the suit which is for valuation of the suit, but not for amendment of the pleadings, the entire scope of the suit will be changed and the solatium or interest can be granted by the Land Acquisition Officer, but not by this Court is unwarranted which finding has to be considered at the time of final disposal of the case, not at the time of disposal of amendment petition filed by the petitioners. The present amendment sought by the petitioners is only with regard to claiming more compensation than claimed previously in their plaint certainly it will not change nature of the suit or cause of action except valuation of the alternative relief sought by the petitioners. The purpose of amendment to avoid multiplicity of litigation, which are necessary for determining, the real questions in controversy provided, it does not cause in justice or prejudice to other side. The amendment can be allowed if it would enable Court pinpointed to consider the truth and would aid in rendering the most satisfactory decision, prayer for amendment should be allowed. Even amendment can be allowed whether it is intended to rectify the absence of material particulars in the plaint. The amendment can be allowed if it would enable Court pinpointed to consider the truth and would aid in rendering the most satisfactory decision, prayer for amendment should be allowed. Even amendment can be allowed whether it is intended to rectify the absence of material particulars in the plaint. The contention of the petitioners herein is that as new Land Acquisition Act came into force, in the year, 2013, they intended to claim compensation according to the provisions of that Act as there was no occasion for them to claim compensation as per new Act when they filed suit in the year, 2009. Whether the petitioners are entitled for compensation as claimed in the plaint can only be decided by the trial Court at the time of final disposal of the case. The present amendment will not change cause of action, nature of the suit except enhancement of valuation of the suit, which can be permitted and respondent/defendant certainly got opportunity to file additional written statement if any and even no additional issue require to be framed when amendment is only with regard to change in the amount of alternative relief of compensation claimed by the petitioners. However, learned trial Judge is at liberty to frame additional issues basing on additional pleading on both sides if any. In view of ration laid down by Hon’ble Apex Court in Life Insurance of India decision referred supra and after considering the nature of amendment sought by the petitioners in the suit, this Court is of an opinion that the impugned order of the trial Court is not sustainable in law either in law or on facts, which is liable to be set aside. 13. In the result, the Civil Revision Petition is allowed. Petition filed by the petitioners/plaintiffs in I.A.No.1801 of 2016 in O.S.No.130 of 2009 is hereby allowed. The petitioners/plaintiffs are permitted to amend their plaint and thereafter, the respondent/defendant is also at liberty to file additional written statement, if any, before the trial Court. After that, the learned trial Judge shall frame necessary additional issues if required and shall proceed with the trial and dispose of the case as expeditiously as possible. No order as to costs. Miscellaneous petitions, if any, shall stand closed. The interim orders granted earlier, if any, shall stand vacated.