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2023 DIGILAW 6 (AP)

Anasuri Vijaya Lakshmi v. Katta Satyavathi

2023-01-02

B.S.BHANUMATHI

body2023
ORDER : 1. This revision petition, under Article 227 of the Constitution of India, is preferred against the order, dated 30.11.2018, dismissing I.A.No.985 of 2018 in O.S.No.740 of 2012 on the file of the Court of I Additional Senior Civil Judge, at Rajamahendravaram, filed under Order VI Rule 17 CPC to permit the petitioner/plaintiff to amend the plaint as proposed in the memo filed along with the application. (b) The amendments proposed to be made in the plaint, as per the memo filed by the petitioner/plaintiff, are as follows: “i) Add the following paragraph after paragraph No.3: “4. The allegations in paragraph 5 of the written statement of the 1st defendant that the plaintiff was given sufficient amount as Streedhana and she was given 5 sovereigns of gold are not correct. Only customary presentations were given to the plaintiff at the time of marriage. The other allegations that the plaintiff’s husband incurred heavy debts and became pauper; that the plaintiff made a demand for partition; that the plaintiff’s father made oral partition and gave one house site in Kakinada to the plaintiff; that in the year 1998 the plaintiff sold away that house site and discharged debts of her husband to the tune of 2 lakh rupees and that the plaintiff was ousted from the coparcenary property are all false. There was no coparcenary property. Item 1 of the plaint schedule was purchased by Suryarao, his father and brothers as joint property in the year 1949 and it never attained the status of coparcenary property. A few years later, after the death of Suryarao’s father, the properties so purchased were divided among joint purchasers and the plaintiff’s father Suryarao got item 1 of the plaint schedule along with other properties. Thus the 1st item of the plaint schedule was the individual and absolute property of Suryarao and not coparcenary property.” ii) Add the following paragraph after the existing paragraph 4 of the plaint: “6. Katta Suryarao was not heavily indebted to creditors as alleged by the 1st defendant in her written statement. He did not obtain loans from any private individual much less from Yadla Satyanrayana Murthy of Vemagiri. The allegations made in paragraph 6 of the written statement of the 1st defendant that the plaintiff did not look after her father while he (sic.was) ill is false. He did not obtain loans from any private individual much less from Yadla Satyanrayana Murthy of Vemagiri. The allegations made in paragraph 6 of the written statement of the 1st defendant that the plaintiff did not look after her father while he (sic.was) ill is false. The further allegations that Suryarao agreed to sell the plaint schedule properties to Yadla Satyanrayana Murthy; that being on pious obligation the defendants 1 and 2 and sons of the 2nd defendant had executed sale deeds in favour of Yadla Satyanrayana Murthy for the plaint schedule properties towards debts incurred by Suryarao are all false and invented. The defendants 1 and 2 had sold plaint schedule items 1 and 2 deliberately avoiding to join the plaintiff and behind her back apprehending that she may object to sale of the properties. Though the 1st defendant at length submits about the debts, there is absolutely no reference to such debts in the sale deeds. They clearly show that the defendants 1 and 2 had received cash consideration on the date of execution of the sale deeds.” “7. This suit is within the period of limitation as it was filed in the year 2012, while the sale deeds were executed in the years 2005 and 2006. This suit is within twelve years period of limitation even from the date of demise of Suryarao.” “8. Yadla Satyanrayana Murthy was not a bonafide purchaser for valuable consideration. There was no reason for him to believe that the defendants 1 and 2 were only the legal heirs of Katta Suryarao. Minimial enquiry would have revealed that Suryarao left behind his wife, a son and a daughter. The allegations in paragraph 3 of the written statement of the 3rd defendant that her husband was a bona fide purchaser for valuable consideration having purchased the said properties from the defendants claimed to be the only legal heris of late Katta Suryarao is utterly false.” “9. The allegations made in paragraph 8 of the written statement of the 1st defendant that the plaintiff did not look after her mother, the first defendant, at any time and she never allowed the 1st defendant into her house are false. The 2nd defendant got all such false allegations made taking advantage of the old age of the 1st defendant.” “10. The plaintiff has an undivided 1/3rd share in the properties of her father Suryarao. The 2nd defendant got all such false allegations made taking advantage of the old age of the 1st defendant.” “10. The plaintiff has an undivided 1/3rd share in the properties of her father Suryarao. Her marriage long ago in the year 1978 does not affect her right to such share and does not affect her right to claim such share in the properties of Suryarao. The plaintiff’s right to share remained undisturbed.” “11. The first defendant died on 29-7-2015. The plaintiff and the 1st defendant are the only legal heirs to the 1st defendant. Since they are already on record no separate application need be made to add LRs of the 1st defendant.” “12. According to the written statement of the 3rd defendant, the defendants 4 and 5 are the in-laws of the 3rd defendant and they are not alive. Their legal representatives need not be brought on record as the 4th defendant was not legal heir of Yadla Satyanrayana Murthy and legal heirs of the 5th defendant are already on record, and as the defendants 3, 6, 8 to 11 are claiming the property. The 7th defendant died pending trial and his legal heirs are added as defendants 8 to 11.” III) Existing paragraphs 4, 5, 6 and 7 of the plaint be renumbered as paragraphs 5, 13, 14 and 15. IV) The following be added in continuation of existing paragraph 5 of the plaint: “The cause of action also arose on 23.2.2005 and 10.11.2006 when the defendants 1 and 2 and the sons of the 2nd defendant had clandestinely executed the sale deeds in favour of Yadla Satyanrayana Murthy behind the back of the plaintiff in September 2012 when Yadla Satyanrayana Murthy died and subsequently when the defendants 3, 6, 8 to 11 are claiming the properties as legal heirs of Yadla Satyanrayana Murthy.” 2. Heard Sri Pottigari Sridhar Reddy, learned counsel appearing for the petitioner/plaintiff, Sri T.V.Jaggi Reddy, learned counsel appearing for the 2nd respondent and Sri T.V.S.Prabhakar Rao, learned counsel appearing for the 3rd respondent. 3. The plaintiff filed the suit for partition originally her mother/1st defendant, her brother/2nd defendant. Heard Sri Pottigari Sridhar Reddy, learned counsel appearing for the petitioner/plaintiff, Sri T.V.Jaggi Reddy, learned counsel appearing for the 2nd respondent and Sri T.V.S.Prabhakar Rao, learned counsel appearing for the 3rd respondent. 3. The plaintiff filed the suit for partition originally her mother/1st defendant, her brother/2nd defendant. But, subsequently, she got impleaded 3rd to 7th defendants who are the wife and others as the legal representatives of late Yadla Satyanrayana Murthy who purchased the suit schedule property, viz., items 1 & 2 from the 1st defendant, 2nd defendant and the sons of 2nd defendant under registered sale deeds. Subsequently, on the death of 7th defendant, 8th to 11th defendants were impeladed. The 1st defendant filed her written statement inter alia contending that the plaintiff had no right in the plaint schedule properties and that the plaint schedule properties were sold by her along with her son/2nd defendant and grandsons in the years 2005 & 2006, and thereafter, the petitioner made enquiries and came to know that the vendee-Yadla Satyanrayana Murthy died in the month of September, 2012 and later got the legal representatives of Yadla Satyanrayana Murthy impleaded by filing I.A.No.692 of 2013, and later, on the death of the 7th defendant, his legal representatives were brought on record, vide I.A.No.583 of 2015. The petitioner further stated that the 3rd defendant filed a written statement contending that Yadla Satyanrayana Murthy is a bona fide purchaser for valuable consideration as 1st & 2nd defendants claimed to be the only legal heirs of late Katta Suryarao (father of the plaintiff); and while adding the 3rd to 11th defendants, inadvertently and due to ignorance, she could not seek necessary amendments in the plaint to explain the reason for impleading them in the suit. According to the petitioner, the mistake is noticed while preparing affidavit in chief examination, and therefore, it is necessary to get the plaint amended. The petitioner further stated that it is necessary to amend the plaint traversing the allegations made by the 1st and 3rd defendants in their written statements. The petitioner contended that there is no change of cause of action or the nature of the suit even if the proposed amendments are allowed, on the other hand, if the amendments are not allowed, the petitioner would be put to irreparable loss and hardship. All the proposed amendments are shown in a separate memo filed along with the petition. The petitioner contended that there is no change of cause of action or the nature of the suit even if the proposed amendments are allowed, on the other hand, if the amendments are not allowed, the petitioner would be put to irreparable loss and hardship. All the proposed amendments are shown in a separate memo filed along with the petition. 4. The 1st respondent died on 29.07.2015, as can be understood from the proposed amendments and the plaintiff claimed that she and the 2nd defendant alone are the legal representatives of the 1st defendant, and therefore, there is no need to file separate application to bring any other legal representative. However, it is mistakenly shown in the cause title in the revision petition as if the 1st respondent is alive. Since it is an admitted fact that she died even before filing I.A.No.985 of 2018, and there is no need to bring any other legal representative, technically, there is no error in the cause title of the petition. Necessary steps to record her death can be taken before the trial Court, if not so far taken. 5. The 3rd respondent alone filed counter resisting the petition stating that the petitioner failed to seek the consequential amendments in I.A.Nos.692 of 2013 and 583 of 2015 when all these defendants were impleaded, and that the proposed amendments introduce a new case and cause of action. This respondent further opposed the petition stating that the proposed amendments must be part of the affidavit and not by a separate memo attached to the petition. 6. After hearing both parties, the trial Court dismissed the petition, having observed that the proposed amendments are to deny the contents of the written statement of 1st defendant and also that the proposed amendments are not consequential and touching the merits and the nature of the case; holding that the proposed amendments are beyond the scope of the suit and that it is not permissible under law to file a separate memo seeking amendments. The trial Court rejected the decisions relied on by the petitioner in support of the contention that normally amendments are allowed to the pleadings to avoid multiplicity of litigation. 7. The trial Court rejected the decisions relied on by the petitioner in support of the contention that normally amendments are allowed to the pleadings to avoid multiplicity of litigation. 7. Having been aggrieved, the petitioner/plaintiff preferred this revision contending that the proposed amendments are necessary to adjudicate the real dispute between the parties and that the trial Court erred in holding that the amendment petition is not in accordance with the procedure. 8. Learned counsel for the revision petitioner reiterated the grounds in the revision and also the contents in the affidavit enclosed to the petition. 9. Learned counsel for the 2nd respondent submitted that the proposed amendment, by way of a memo, is not permissible under law and placed reliance on the decision of Syed Yousuf Ali v. Yousuf and others, (2016) 2 ALT 557 and Jasti Satyanarayana v. Jasti Pulla Rao, C.R.P.No.582 of 2022, decided on 22.11.2022. 10. Learned counsel for the 3rd respondent also raised the same objection. 11. In the case of Syed Yousuf Ali (1 supra), a point was framed as to whether a judicial order can be passed on memo filed by the petitioner raising objection about admissibility of possessory agreement of sale and the point was answered holding that no judicial order can be passed on memo. In case of Jasti Satyanarayana, the decision in Syed Yousuf Ali (1 supra) was followed. In the said case, I.A.No.733 of 2020 was filed under Order XXVI Rule 9 and Section 151 CPC seeking appointment of an advocate commissioner and the commissioner returned the warrant unexecuted. Thereafter, the plaintiff fled a memo to appoint another experienced commissioner in place of the earlier commissioner. Objections were filed to the said memo. Thereafter, the trial Court passed an order appointing another advocate commissioner. In that context, this High Court held that no order can be passed on memo; however, liberty is given to the plaintiff to file fresh application seeking appointment of advocate commissioner. 12. In the present case, the memo is not an independent proceeding, but it is part of the petition which is filed under Order VI Rule 17 CPC, and therefore, it cannot be treated, as a separate proceeding so as to not to pass any orders in the petition. 12. In the present case, the memo is not an independent proceeding, but it is part of the petition which is filed under Order VI Rule 17 CPC, and therefore, it cannot be treated, as a separate proceeding so as to not to pass any orders in the petition. The petitioner instead of incorporating the very same amendments in the petition itself, narrated them on a separate memo and enclosed the same to the petition. Therefore, the decisions relied on by the learned counsel for the 2nd respondent have no application to the present case. 13. Coming to the merit in seeking permission to amend the plaint, it is noticed that except the amendment proposed in para Nos.8 and 12, all other proposed pleadings are directed against denying or explaining the contents of the written statement of 1st defendant. Even the proposed amendments in paras 8 and 12 are also to answer the contents in the written statement. Of course, the pleadings in the proposed amendments in para 8 could also be taken when the concerned defendants were sought to be impleaded by filing petition under Order 1 Rule 10 CPC, as Rule 28 of the Civil Rules of Practice makes it mandatory to seek all consequential amendments in the same petition. 14. Insofar as the proposed amendments in para No.12 are concerned, they seem to be inconsistent with the stand taken by the plaintiff while proposing their impleadment by filing petition by herself. Now, in the said paragraph, she proposes to plead that they are not necessary parties. The rest of the proposed amendments are since to deny or explain the pleadings in the written statement they could have been pleaded as rejoinder of the plaintiff and filed with the leave of the Court and not by way of amendment of the existing plaint. 15. The trial Court has not examined the proposed amendments, in detail, or their necessity at this juncture. Of course, the proposed amendments to answer the written statement were sought long time after filing the written statements. Thus, it is only the delay that matters in seeking these pleadings by the plaintiff. 16. 15. The trial Court has not examined the proposed amendments, in detail, or their necessity at this juncture. Of course, the proposed amendments to answer the written statement were sought long time after filing the written statements. Thus, it is only the delay that matters in seeking these pleadings by the plaintiff. 16. If the petitioner proposes to seek amendments to the plaint, the relief is governed by Order VI Rule 17 CPC which provision has two stages; one to seek amendment before commencement of trial and the other, after commencement of trial, whereby, it is settled practice that amendments sought before commencement of trial are liberally allowed, whereas the amendments proposed after commencement of trial are controlled by the proviso to Order VI Rule 17 CPC to establish that such amendments could not be taken earlier in spite of due diligence. However, there are catena of decisions holding that if the proposed amendments are necessary to finally and completely adjudicate the lis between the parties, such amendments can be allowed, in the light of the facts and circumstances in each case. 17. If the plaintiff proposes to seek leave of the Court under Order VIII Rule 9 CPC to file rejoinder, there is no such bar as is provided under Order VI Rule 17 CPC. The discretion of the Court is not saddled by any words used by the legislature. Therefore, there is wide discretion conferred upon Court to grant permission. However, such discretion is not unbridled and must be judiciously exercised keeping in view the general rules of amendment as a guide, but not for strict appliance. 18. Since, in the present case, the proposed amendments must be by way of only rejoinder, but, not by amending the plaint, this Court is of the view that the petitioner can be given liberty to file necessary petition before the trial Court, if so advised, and on filing of such petition, the trial Court shall expeditiously dispose of the same. 19. Subject to the above observations, the Civil Revision Petition is disposed of. There shall be no order as to costs. Miscellaneous petitions, if any, pending shall stand closed.