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2023 DIGILAW 56 (AP)

Patan Syed Khan Sayed Basha Khan v. P. Sayed Khan

2023-01-05

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 the learned Principal Senior Civil Judge, Madanapalle, in I.A.No.602 of 2017 in O.S.No.371 of 2011 dated 10.10.2017, wherein and whereby the learned trial Judge dismissed the petition filed by the 1st petitioner/1st plaintiff under Order VI Rule, 17 of the Civil Procedure Code (in short ‘CPC’) seeking amendment of the plaint on the ground that the petition is filed after commencement of trial to get over admission made by the 1st petitioner in his evidence as PW.1. 2. The 1st petitioner/1st plaintiff filed a suit for partition against the respondents and he filed a petition, seeking amendment of plaint, which was dismissed, and thereafter he preferred present revision petition and during pendency of the revision petition, the 1st petitioner died and the petitioners 2 to 6 were added as his legal representatives. 3. The case of the 1st petitioner before the trial Court in brief is that he filed suit for division of suit schedule properties into four equal shares and to allot one such share to him on the ground that the suit schedule properties are his ancestral properties. He submits that during life time of his father, he used to enjoy item No.2 of suit schedule lands, which are Government lands and considering the possession and enjoyment of his father, the Government also issued DKT patta long ago, and name of his father also mutated in all the revenue records in respect of item No.2 of suit schedule properties. He submits that Sl.No.1 of item No.2 of suit schedule property is to an extent of Ac.1.49 cents of dry land in S.No.1331/1B, but due to typographical mistake, the survey number is mentioned in the plaint as 1303/2-1B, instead of 1331/1B in the plaint schedule, which he intended to correct by seeking amendment. It is also the contention of the 1st petitioner that he came to know the mistake crept in the description of RS number in the schedule when he obtained certified copy of ROR 1 Namuna and cultivation account copy. He prays to amend the plaint. 4. The respondents have filed counter before the trial Court, denying the allegations made in the affidavit of the 1st petitioner. He prays to amend the plaint. 4. The respondents have filed counter before the trial Court, denying the allegations made in the affidavit of the 1st petitioner. It is the contention of the respondents that the 1st plaintiff without knowing correct survey number of the lands filed suit, now he wants to change the survey number, which totally alters their defense and amendment of the plaint cannot be allowed after commencement of the trial. They pray to dismiss the petition. 5. After hearing both sides, the learned trial Judge dismissed the petition filed by the 1st petitioner. 6. Aggrieved by the Orders passed by the learned trial Judge, the 1st petitioner preferred the present revision petition stating that the Orders passed by the trial Court is illegal and vitiated by material irregularities. He submits that he has noticed the mistake crept in the survey number when he obtained copy of revenue records. He prays to allow the civil revision petition. 7. I have heard learned counsel for the revision petitioner Mr. P. Sridhar Reddy. None appeared for respondents, though served with notice. 8. Now, the issue that emerges for consideration by this Court is : "Whether the Order under challenge is sustainable, tenable and whether the same warrants any interference of this Court under Article 227 of the Constitution of India?" 9. POINT: 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 in spite of due diligence, the party could not have raised the matter before the commencement of trial”. 10. In Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Another’s case (referred supra) - in Civil Appeal No.5909 of 2022 dated 01.09.2022, the Hon’ble Supreme Court held at Para 70, which reads as under : “70. 10. In Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Another’s case (referred supra) - in Civil Appeal No.5909 of 2022 dated 01.09.2022, the Hon’ble Supreme Court held at Para 70, 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. 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 hyper technical 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. (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. (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)” 11. The learned counsel for the revision petitioner would submit that though the 1st petitioner filed petitioner seeking amendment of plaint by correcting typographical mistake crept in with regard to description of serial No.1 of item No.2 of suit schedule property, which will not change the nature of the suit, or cause of action, which failed to consider by the learned trial Judge and erroneously dismissed the petition. He would further submit that the amendment can be allowed at any stage of the suit, when it is necessary to resolve real question in controversy. He relied on following precedent law : 1. Sajjan Kumar, appellant Vs. Ram Kishan, respondent, (2005) 13 SCC 89 , wherein the Hon’ble Apex Court held that when the proposed amendment sought the correction of the description of the suit premises in the plaint, it has to be allowed and observed that as the trial Court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice and such an error committed by the trial Court was liable to be corrected by the High Court in exercising of its supervisory jurisdiction, even if Section 115 of CPC would not have been strictly applied. 2. Tarigonda Mallikarjuna and others vs. Shaik M.A. Ahammad and others, 2017 (2) HLT 11, wherein this Court held that delay cannot be a ground for refusal to receive amendment petition and dominant purpose to allow amendment is to minimize litigation and to resolve disputes once for all. 12. In the present case, the 1st petitioner has filed suit against the respondents for division of properties and claiming 1/4th share by showing two items in the plaint schedule and out of it, item No.1 is house property, whereas item No.2 is consisting of two items, which are agricultural lands. The 1st petitioner claimed that the land to an extent of Ac.1.49 cents, assigned to his father by recognizing his long possession, wherein also he is entitled to claim share, but he has shown survey number in serial No.1 of item No.2 as 1303/2-1B instead of 1331/1B in the plaint schedule. The 1st petitioner is claiming that it is typographical mistake, which he intended to correct it, as he came to know the same after obtaining copy of revenue records. The observation of the learned trial Judge after considering the precedent law placed before it is that the 1st petitioner as PW.1 admitted in his evidence with regard to his alleged share in serial No.1 of item No.2 by stating survey number, due to that he cannot now seek amendment of the survey number, when he admitted the same in his evidence. 13. 13. It is not in dispute that after amendment of Civil Procedure Code in 2002, a new procedure has been contemplated for chief-examination of witnesses by receiving the affidavits instead of examining them in the Court, and thereafter the cross-examination will be recorded by the Court or by the Advocate-Commissioner as per the procedure laid down under Order XVIII, Rule 4 of CPC. As rightly pointed out by the learned counsel for the revision petitioner that naturally, the chief-examination will contain the contents what all mentioned in the plaint, and likewise the survey number of the land is also reflected in the chief-examination of PW.1, but that itself is not a ground to reject the prayer for amendment of the plaint by correcting the survey number, on the ground that it is amounts to an admission of PW.1 in his evidence. 14. It is also pertinent to note that the respondents who filed counter have not denied the correctness of survey number of serial No.1 of item No.2 of plaint schedule and their only contention is that when amendment is allowed they again have to file additional written statement, which cannot be a ground to reject the prayer for amendment as per the ratio laid down by the Hon’ble Apex Court in Life Insurance Corporation of India case referred supra, and in view of ratio laid down in the decision relied on by the learned counsel for the revision petitioner, the purpose for allowing the amendment petitions is for determining the real questions in controversy provided it does not cause injustice or prejudice to other side. The amendment can be allowed if it would enable the Court pin pointedly to consider the truth and would aid in rendering a most satisfactory decision, prayer for amendment should be allowed. 15. The present amendment, which the 1st petitioner as sought, is only to correct the survey number of serial No.1 of item No.2 of plaint schedule and not cause of action or boundary or location of the land. 15. The present amendment, which the 1st petitioner as sought, is only to correct the survey number of serial No.1 of item No.2 of plaint schedule and not cause of action or boundary or location of the land. Even otherwise, the respondents are not denying the correct survey number, which now the 1st petitioner intended to correct it, due to that it will not change the nature of the suit or cause of action, due to that simply because the trial has been commenced in the suit, that itself is not a ground to reject the prayer for amendment, which require to avoid multiplicity of litigation to pass effective decree by the trial Court. 16. In view of discussion in the preceding paragraphs, this Court is of an opinion that the Orders passed by the learned trial Judge dismissing the petition filed by the 1st petitioner under Order VI Rule 17 CPC are not tenable, sustainable in law and also on facts, which needs interference of this Court while exercising supervisory jurisdiction under Article 227 of the Constitution of India. 17. In the result, the Civil Revision Petition is allowed, setting aside the Order in IA No.602/2017 in OS.No.371/2011, dated 10.10.2017 passed by the learned Principal Senior Civil Judge, Madanapalle. The petition filed by the petitioners/plaintiffs in IA No.602/2017 in OS.No.371/2011 is hereby allowed. The petitioners/plaintiffs are permitted to amend the plaint, thereafter the respondents are at liberty to file additional written statement if any, before the trial Court. Thereafter, the learned trial Judge shall frame necessary additional issue if any, before proceeding with the trial and dispose of the case as expeditiously as possible. No order as to costs. Consequently, miscellaneous petitions if any, shall stand closed. Interim stay if any, granted shall stand vacated.