T. Venkata Vijaya Lakshmi, W/o. T. Kodanda Ramaiah v. Kodali Rayana Rao, S/o. K. Satyanarayana
2023-05-11
SUBBA REDDY SATTI
body2023
DigiLaw.ai
ORDER : Defendant in the suit filed the above revision against the order 28.11.2022 in I.A.No.893 of 2022 in O.S.No.1630 of 2022 on the file of learned III Additional Junior Civil Judge, Vijayawada. 2. Plaintiff filed O.S.No.1630 of 2022 against the defendant seeking perpetual injunction. 3. In the plaint, it was contended that plaintiff is absolute owner of the plaint schedule property in R.S.No.363/1, plot No.140 of old Assessment No.1986 (old door No.8-128 D), admeasuring 400 square yards. Suit schedule property was purchased by father of the plaintiff, K. Satyanaraya from Bandi Kondaiah under registered document dated 16.09.1982. Father of the plaintiff gifted the same to the plaintiff under document, dated 28.07.2012. Plaintiff is residing in Nuzveed and defendant taking advantage of absence of the plaintiff tried to trespass into the property and the said attempt was resisted. Hence, suit was filed seeking perpetual injunction. 4. Plaint schedule property is described as follows: “The following schedule is situated in Vijayawada East, Gundadala District Registrar, Vijayawada Municipal Corporation, Vijayawada, Survey No.363/1, Plot No.140, Old Assessment No.1986, D.No.48-16-38, to an extent of 400-00 sq. yards as such the present extent of the schedule property as follows: East : Boundary of the Deccan Society Property South : Road West : Boundary of Kalagar Vitala Kumari Property North : Boundary of plot No.137 property of Parvathaneni Kanyakumari” 5. Along with the suit, plaintiff filed I.A.No.658 of 2022 for grant of ad-interim injunction. Defendant filed caveat and hence, Court ordered notice. 6. Defendant filed written statement and counter in I.A.No.658 of 2022. 7. As the matter stood thus, plaintiff filed I.A.No.893 of 2022 to amend suit schedule property i.e. Door No.8-128-D in the place of door No.48-16-38 in line three of the plaint schedule property. 8. In the affidavit, filed in support of the petition, it was contended that a mistake was occasioned in the plaint regarding the schedule wherein door number is shown as 48-16-38. In the gift deed as well as encumbrance certificate, it was mentioned that nearest door number is 48-16-38. While typing schedule property annexed to the plaint, it was wrongly typed as 48-16-38. The said mistake occurred due to over sight and it was not deliberate. Door number of suit schedule property is clearly mentioned in document No.3905/2012. Hence, the application is filed seeking amendment. 9. Defendant filed counter affidavit and opposed the application.
While typing schedule property annexed to the plaint, it was wrongly typed as 48-16-38. The said mistake occurred due to over sight and it was not deliberate. Door number of suit schedule property is clearly mentioned in document No.3905/2012. Hence, the application is filed seeking amendment. 9. Defendant filed counter affidavit and opposed the application. In the counter, it was contended that plaintiff is professional land grabber and instrumental in creating forged and fabricated documents, which were filed along with the suit. In the counter affidavit filed in I.A.No.658 of 2022, defendant pleaded that plaintiff set up a false case. D.No.8-128D or 48-16-38 is bogus. During the course of hearing I.A.No.658 of 2022, since defendant disputed identity of the suit schedule property, present application is filed seeking amendment. Identity of the suit schedule property is also in dispute and it goes to the root of the suit. As such, amendment cannot be ordered. Eventually, prayed the Court to dismiss the application. 10. Trial Court by order dated 28.11.2022, allowed the application. Aggrieved by the same, the above revision is filed. 11. Heard Sri MRK Chakravarthy, learned counsel for the petitioner and Sri Bhanu Prakash, representing Ms. Ganta Sridevi, learned counsel for the respondent. 12. Learned counsel for the petitioner would submit that the proposed amendment is causing prejudice to the defendant. Plaintiff pleaded door number of the suit schedule property as 48-16-38. He submits that by filing written statement in the suit and counter in interlocutory application, defendant denied existence of door No.48-16-38 or 8-128D and further pleaded bogus. He submits that in the third party affidavits also door number was mentioned as 48-16-38. He further submits that during the course of hearing in I.A. (injunction application), when it was pointed out with regard to door number the application was filed seeking amendment. He would submit that in the counter also it was mentioned about non-existence of door number mentioned in the suit schedule property and that it is bogus. However, trial Court, without considering all these aspects allowed the application. 13. Learned counsel for the respondent would contend that suit was filed in September, 2022 and application seeking amendment was on 03.10.2022. He submits that trial in the suit is not commenced and no prejudice will be caused to the defendant.
However, trial Court, without considering all these aspects allowed the application. 13. Learned counsel for the respondent would contend that suit was filed in September, 2022 and application seeking amendment was on 03.10.2022. He submits that trial in the suit is not commenced and no prejudice will be caused to the defendant. He would also contend that the boundaries mentioned in the suit schedule property shall remain and the correction sought is only with regard to door number. In fact, in the plaint itself, door number was mentioned as 8-128D. However, door number is wrongly typed as 14-16-38 in the plaint schedule, basing on encumbrance certificate since it contains D.No.48-16-38 as the nearest door number. In the registered document also nearest door number is shown as such. He submits that it is purely typographical mistake and there is no illegality in the order passed by the trial Court. 14. The point to be considered is whether proposed amendment can be allowed? 15. Suit O.S.No.1638 of 2022 was filed seeking perpetual injunction. In para No.1 of the plaint, it was mentioned that plaintiff is absolute owner of the land in R.S.No.363/1, plot No.140, old assessment No.1996, old D.No.8-120D admeasuring 400 square yards. Registered document, dated 16.02.1982 filed along with the plaint would reflect door number of the subject property is 8-128-D. Registered gift deed filed as second document would also disclose door number of the subject property as 8-128-D. The boundaries mentioned in the suit schedule property and the boundaries mentioned in the sale deed of 1982 and gift deed of 2012, are one and the same. 16. Interlocutory Application, seeking amendment, was filed immediately i.e. within one and half month from the date of filing the suit. Plaintiff having realized the mistake in typing door number as contended in the affidavit filed the application for amendment, at the earliest point of time. Trial in the suit is yet to be commenced. 17. The object of amendment is for proper and effective adjudication of the case and to avoid multiplicity of proceedings. It is settled law that while considering application for amendment, Court shall not go into merits of the case. The primary object of the Court is to see whether amendment is imperative for proper and effective adjudication and whether seeking amendment is bona fide or mala fide.
It is settled law that while considering application for amendment, Court shall not go into merits of the case. The primary object of the Court is to see whether amendment is imperative for proper and effective adjudication and whether seeking amendment is bona fide or mala fide. The application for amendment can be ordered if the amendment is bona fide and where amendment fundamentally or constitutionally does not change nature and character of the case. 18. In Bhaskaran Nair V. P. Chandramathiyamma, 2006 1 ILR (Ker) 126, it was held as under: “11. The test for allowing an amendment of the pleadings is to find out whether the proposed amendment works any serious injustice to the other side. It is well settled that the Court should be extremely liberal in granting a prayer of amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side (Vide Haridas Aildas Thandani and Others v. Godrej Rustom Kermani – (1984) 1 SCC 668 . The object of Order VI R, 17 C.P.C. is to avoid Multiplicity of suits and the court has to keep this principle in mind while considering an application for amendment of the pleadings (See L.J. Leach and Co. Ltd. and another v. M/s. Kardine Skinner and Co. AIR 1957 SC 357 , Nichhalbhai Vallabhai and others v. Jaswantlal Zinabhai and others – AIR 1966 sc 997 , Kalawati Devi Harlalka v. The Commissioner of Income Tax, West Bengal and others AIR 1968 SC 165, Sampath Kumar v. Ayyakannu and another – 2002 (7) SCC 559 & Dondapati Narayana Reddy v. Duggireddy Venkatanaryana Reddy 2001 (8) SCC 115 )”. 19. In Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd., and another, 2022 (5) ALT 17 (SC), the Hon’ble Apex Court held that: “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.
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. (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.
(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. 20. In the case on hand, as stated supra, in the first para of the plaint, door number was mentioned as 8-128 D. However, when it comes to schedule, it was typed as 48-16-38. Boundaries mentioned in the plaint schedule property as well as in the registered documents are one and the same. Plaintiff is not asking for changing boundaries of the suit schedule property by way of amendment. Plaintiff is only praying the Court to amend the door number. It is settled law that boundaries prevail over extent and survey number as also measurements. 21. Keeping in view the object of amendment i.e. amendment for effective adjudication of the case and as the proposed amendment is not constitutionally or fundamentally changing the nature or character of the suit, trial Court allowed the application. Trial court passed a reasoned order.
It is settled law that boundaries prevail over extent and survey number as also measurements. 21. Keeping in view the object of amendment i.e. amendment for effective adjudication of the case and as the proposed amendment is not constitutionally or fundamentally changing the nature or character of the suit, trial Court allowed the application. Trial court passed a reasoned order. This Court does not find any illegality or perversity, which brooks interference of this Court under Article 227 of the Constitution of India. There are no merits in the revision and the revision is liable to be dismissed. 22. Accordingly, this Civil Revision Petition is dismissed. No costs. As a sequel, all the pending miscellaneous applications shall stand closed.