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2024 DIGILAW 1120 (AP)

Shaheda Mehdi v. Zia Mehdi

2024-08-19

KIRANMAYEE MANDAVA

body2024
ORDER : Kiranmayee Mandava, J. The present Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order dated 07.11.2019 in I.A.No.125 of 2019 in O.S. No.199 of 2007, on the file of the Special Sessions Judge for Trial of Cases under S.C.s & S.T.s (POA) Act-cum-XI Additional District & Sessions Judge, Visakhapatnam. 2. The parties hereto are referred to as they were arrayed in the Suit. 3. The petitioners/plaintiffs, filed suit for a declaration that the gift deed dated 10.10.2013 executed by the first defendant in favour of the second defendant is void and non-est in law. It is contended that the 1st defendant gifted the subject property in favour of the plaintiffs in the ratio of 60:20:20, as per Muslim law, in the presence of the Chartered Accountant. The plaintiffs accepted the gift, and the Chartered Accountant, Sri C.R. Hemanth Kumar, also executed a notarized affidavit. The 1st defendant confirmed the same through her letter dated 07.06.2002 addressed to the plaintiffs. It is stated that subsequently, while effecting the settlement of properties belonging to the families of the 1st defendant, the plaintiffs came to know about a registered gift settlement deed dated 10-10-2003 alleged to have been executed by the 1st defendant in favour of the 2nd defendant. It is contended that the plaintiffs after issuing legal notice dated 27.03.2007, to the defendants filed Suit questioning settlement of the property for declaration that the gift settlement deed dated 10.10.2003, in favour of the 2nd defendant as void and non-est. The reliefs sought in the Suit are as follows : “The plaintiffs therefore pray that the Honourable Court may be pleased to pass a decree in their favour and against the defendants: (a) granting a declaration that the deed dt.10.10.2003 (Doct.No.2140/03) executed contrary to the plaintiffs interest is illegal, inoperative and void. (b) Send information of this decree of cancellation of gift deed in favour of D-2 to his –--as per Section 31 of the SPR Relief. (c) granting costs of the suit and (d) granting such other or further reliefs as are deemed fit in the circumstances of the case.” 4. The defendants filed their written statement in the Suit. The plaintiffs filed an application in I.A. No.1179 of 2014 seeking the following amendment to the Suit prayer. (c) granting costs of the suit and (d) granting such other or further reliefs as are deemed fit in the circumstances of the case.” 4. The defendants filed their written statement in the Suit. The plaintiffs filed an application in I.A. No.1179 of 2014 seeking the following amendment to the Suit prayer. “Para VI (a)(i) – grant a consequential relief of redelivery of vacant possession of the schedule mentioned property by the Defendants to the plaintiffs. Para VI (a) (ii) – send information of the Decree of cancellation of the Gift Deed in favour of D-2 to the Registrar as per Sec.31 of the S.P. Relief Act.” 5. The said application was allowed in part, observing that as the defendants are disputing the title of the Suit property, the plaintiffs necessarily to file a Suit for declaration and recovery of possession of the Suit property. Against the order in I.A. No.1179 of 2014, the Plaintiff initially filed a Revision Petition in C.R.P. No. 2808 of 2017 before the High Court. However, the plaintiffs have withdrawn the Revision Petition with liberty to file an appropriate application before the trial Court. The Plaintiffs thus filed the subject I.A. No. 125 of 2019 seeking amendment of the prayer in the Suit to include a prayer for declaration and for consequential relief of delivery of possession of the Suit property. 6. The defendants filed their counter stating that filing of the Suit itself is belated, as the gift settlement deed is dated 10-10-2003. After 11 ½ years of filing of the Suit, the instant I.A. was filed, which would prejudice their rights over the suit property. It was further contended that the 1st defendant filed written statement in the suit objecting to the maintainability of the Suit stating that without seeking a declaration, the Suit would not be maintainable, however the plaintiffs were not diligent in correcting the mistake in time. The 1st defendant further contended that the liberty sought by the Plaintiff before the High Court while withdrawing the C.R.P., was to file an appropriate application and not for amendment of Plaint by way of the instant application, which changes the nature of the Suit prejudicing the opposite parties. Thus, contended that the amendment would not be permissible. Much less the Suit, which is barred by limitation. The 2nd defendant filed counter affidavit in similar lines, as stated by the 1st defendant. Thus, contended that the amendment would not be permissible. Much less the Suit, which is barred by limitation. The 2nd defendant filed counter affidavit in similar lines, as stated by the 1st defendant. The 2nd defendant further contended that its rights had been crystallized, owing to passage of time, since the date of execution of the gift settlement deed and that third-party interests have also been created over the Suit property in favor of one Mehidi Bagh Estate Ltd., and more so if any amendments are allowed to be made after 11 ½ years, of filing of the Suit, would cause grave prejudice to the rights of the defendants. 7. The learned trial Judge partly allowed the I.A., inter alia, observing that : “27. As per the Proviso to Order VI Rule 17 of CPC, the petitioners have to explain "in spite of due diligence" they could not file this petition previously. But, as discussed above the petitioners filed I.A. No.1179/2014 for seeking the relief of delivery of possession and it was dismissed. Again the petitioners filed this petition for seeking same relief by adding one more relief of declaration of right and title, which ought to have been sought within three years from the date of right to sue first accrues. Petitioners cannot file separate suit for declaration as it is barred by limitation. The petitioner also failed to assign the reasons for non filing this petition at an earliest point of time, as the suit was filed in the year 2007 i.e., more than 12 years back. Viewed in any angle, there are no merits in this petition and against law and liable to be dismissed.” 8. Assailing the same, the present Civil Revision Petition is filed. 9. Heard, Sri N. Ashwani Kumar, the learned counsel for the petitioners and Sri J.A. Haq, learned Senior Counsel, appearing for the 1st respondent along with Sri B. Madhu, learned counsel for the 2nd respondent/defendant. 10. Assailing the same, the present Civil Revision Petition is filed. 9. Heard, Sri N. Ashwani Kumar, the learned counsel for the petitioners and Sri J.A. Haq, learned Senior Counsel, appearing for the 1st respondent along with Sri B. Madhu, learned counsel for the 2nd respondent/defendant. 10. The learned counsel for the petitioners contends that at any stage of the Suit proceedings the Court may allow the parties to amend the pleadings for the purpose of determining the real issue of controversy, exception to the said Rule is the proviso to Order VI Rule 17, which stipulates that after commencement of trial no application for such an amendment can be entertained unless the Court comes to the conclusion that in spite of due diligence the party seeking such amendment could not have raised the matter before the commencement of the trial and the subject amendment would not cause any prejudice to the parties and the subject amendment would not change the nature of the Suit and would not bring in a new cause of action. 10. The learned counsel for the petitioners relies on the following Judgments in support of his contention : 1. Life Insurance Corporation of India Vs. Sanjeev Builders Pvt. Ltd, 2022 SCC Online SC 1128 wherein it is observed 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. (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 pinpointedly 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. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)”. 2. In the case of Pankaja & Anr. Vs. Yellappa (died) by Lrs. & others, (2004) 6 SCC 415 wherein it is observed as under: “12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned there can be no two opinion that the same is wide enough to permit amendments even in cases where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the court to allow applications in spite of the delay and latches in moving such amendment application. 13. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the court to allow applications in spite of the delay and latches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of the period of limitation prescribed in law, can the court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments. 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.” And 3. A.K. Gupta and Sons Ltd vs. Damodhar Valley Corporation, AIR 1967 SC 96 4. T. Hanumanthu Naidu & Ors. vs. Malepati Jayasri, 2020 (3) ALD 401 5. Vijay Gupta vs. Gagninder Kr.Gandhi and others, 2022 SCC Online Del 1987 6. L.J. Leach and Co. Ltd vs. Jardine Skinner and Co., AIR 1957 SC 357 7. Order in CRP Nos. 414, 427 & 438 of 2019 8. Baldev Singh Vs. Manohar Singh, (2006) 6 SCC 498 9. Sreesreelswar Radha Beehari Jew Vs. Malti P. Soni, (2019) SCC Online Cal 9113 10. Union of India Vs. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC 127 11. Kailash Vs. Nanhku, (2005) 4 SCC 480 12. Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji, AIR 2007 SC 806 11. Baldev Singh Vs. Manohar Singh, (2006) 6 SCC 498 9. Sreesreelswar Radha Beehari Jew Vs. Malti P. Soni, (2019) SCC Online Cal 9113 10. Union of India Vs. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC 127 11. Kailash Vs. Nanhku, (2005) 4 SCC 480 12. Ajendraprasadji N. Pande Vs. Swami Keshavprakeshdasji, AIR 2007 SC 806 11. Per contra, the learned Senior Counsel Sri J.A. Haq, appearing along with Sri B. Madhu, learned counsel for the 1st respondent/1st defendant, contends that the plaintiffs having withdrawn the revision petition filed against the order in I.A No.1179 of 2014, cannot file the same application as that of I.A. No.1179 of 2014. It is contended that this Court in the Revision Petition (C.R.P. No. 2808 of 2017) filed against the order in I.A.No.1179 of 2014 granted liberty to file only an appropriate application and not a fresh application. He contends that filing of the present application by the plaintiffs would amount to an abuse of process of law, as the issues in the Suit were framed as of 08-10-2009. It is further contended that the plaintiffs also filed the evidence affidavit in chief. Therefore, the provisions of the proviso to Order VI Rule 17 of C.P.C., would bar filing of such application once the trial has commenced and more so in the absence of any averment in the affidavit of the plaintiffs that in spite of their exercise of the due diligence, the amendment could not be sought. Thus, it is contended that unless the circumstances provided under proviso to Order VI Rule 17 of C.P.C., is established by the Plaintiff, no such application can be entertained. In support of his contention he relied on the following decisions : 1. The decision of the Hon'ble Supreme Court in the case of Basavaraj Vs. Indira and Ors., wherein it is observed as under: “11. This Court in Revajeetu's case (supra) enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.” 2. The decision of the Hon'ble Supreme Court in the case of Pandit Malhari Mahale Vs. The decision of the Hon'ble Supreme Court in the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale and Ors., wherein it is observed as under: “5. From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought not to have allowed the amendment. 6. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. XXXX 7. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed.” 3. The decision of the Hon'ble Supreme Court in the case of J. Samuel and Ors. Vs. Gattu Mahesh and Ors., wherein it is observed as under: “19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term 'Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.” 4. The decision of the Hon'ble Supreme Court in the case of L.C. Hanumanthappa (Since Dead) represented by his L.Rs. Vs. H.B. Shivakumar, wherein it is observed as under : “29. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.” 4. The decision of the Hon'ble Supreme Court in the case of L.C. Hanumanthappa (Since Dead) represented by his L.Rs. Vs. H.B. Shivakumar, wherein it is observed as under : “29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16th May, 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title to the suit property. A reading of an isolated para in the written statement, namely, para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28th March, 2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff's title. By 16th May, 1993 therefore a suit based on declaration of title would have become time-barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away.” 12. Sri B. Madhu, the learned counsel appearing for the 2nd defendant contends that the plaintiffs have withdrawn the Revision Petition (C.R.P. No. 2808 of 2017) to file an appropriate application. Sri B. Madhu, the learned counsel appearing for the 2nd defendant contends that the plaintiffs have withdrawn the Revision Petition (C.R.P. No. 2808 of 2017) to file an appropriate application. Therefore, it does not entitle them to apply afresh similar to that of the first application (I.A. No.1179 of 2014) and that the plaintiffs are attempting now to improve their case in the current second application, which could have been addressed in the earlier application itself and only to fill up the lacunae in their case the instant application is filed. It is his further contention that the Suit property was given for development to one M/s. Mahedi Bahg Estates Ltd, and since the suit property is in its possession, it is a necessary party to the Suit. 13. Considered the rival submissions. The relief sought in the suit is for a declaration that the gift deed dated 10.10.2003 is illegal, inoperative and void. 14. While seeking such relief, the plaintiffs have paid the court fee as computed in terms of the provisions of Sec.24 (a) of the Court Fees and Suits Valuation Act,1956, and paid Rs.2,83,326/-. However, in the Plaint at column relating to court fees, the court fee is mentioned as payable under Section 37 of the AP Court Fee and Suits Valuation Act. 15. The proposed amendment sought by the plaintiffs is for a declaration that the "plaintiffs are absolute owners" of the schedule property and for consequential relief of "delivery of the vacant possession". The finding of the learned trial Judge that for seeking relief of declaration of right, the Court fee should have been paid under Section 24 of A.P. Court Fee and Suits Valuation Act. He observed that since the same is stated to be paid under the provision of Section 37 of the A.P. Court Fee and Suits Valuation Act, the learned trial Judge denied the relief sought by the plaintiffs. The learned Judge, further observed that due diligence in terms of the provisions of the proviso to Order VI Rule 17 of C.P.C., was not demonstrated by the plaintiffs. 16. As seen from the record, the Court fee is paid taking into consideration the market value of the suit property as on the date of filing of the suit as Rs.3,00,84,940/- and 3/4th of the same was computed as Rs.2,25,63,705.00/-.On that the Court fee was paid at Rs.2,83,326/-. 16. As seen from the record, the Court fee is paid taking into consideration the market value of the suit property as on the date of filing of the suit as Rs.3,00,84,940/- and 3/4th of the same was computed as Rs.2,25,63,705.00/-.On that the Court fee was paid at Rs.2,83,326/-. Had the plaintiff was intending to seek for mere cancellation of the document, the court fee would have been paid by her, on the value of the property shown in the document, which is Rs.70,83,460/-. However, the Court fee was paid taking into consideration the market value of the property at Rs.3,00,84,940/-. Thus it can be said that the plaintiff was not intending to seek solely the relief of cancellation of the subject document. But diligent enough in remitting the Court fee payable for declaration of title and for delivery of possession. The factum of due diligence was categorically demonstrated by the plaintiffs in the affidavit filed in support of the application seeking amendment of prayer in the suit. 17. The relief sought by the plaintiff would not bring any new issues, and the same are necessary to give quietus to the dispute between the parties and avoid multiplicity of proceedings. Further, the subject amendment would not cause any prejudice to the parties, in as much as the relief sought at the first instance, in the suit is for a declaration that the gift deed dated 10.10.2003 is illegal, void and inoperative. The amendment to the said relief to the effect of declaration that the plaintiffs are absolute owners of the scheduled property and for consequential relief of delivery of vacant possession would amount to consequential relief to the main relief of declaration that the gift deed dated 10.10.2003 as void, having regard to the fact that the plaintiffs are claiming right to the property through HIBA under Muslim Personal Law. This Court is therefore of the considered view that to adjudicate all the issues, the amendment is necessary to avoid multiplicity of proceedings. 18. The further observation of the learned Judge is that in terms of Art.58 of the Limitation Act,1963, to seek the relief of declaration of right and title to the property, the suit has to be filed within three years from the date the right to sue first accrues. 18. The further observation of the learned Judge is that in terms of Art.58 of the Limitation Act,1963, to seek the relief of declaration of right and title to the property, the suit has to be filed within three years from the date the right to sue first accrues. He further observed that through the written statement filed on 12-11-2007, the plaintiffs knew of the alleged gift deed dated 10-10-2003 in favour of the 2nd defendant. Therefore, the plaintiffs could have filed the application for amendment within three years of filing the written statement, i.e.,12-11-2007. The said reasoning of the learned Judge is unsustainable because the due diligence of the plaintiffs can be garnered from the fact of paying court fees at the rate applicable for the relief of declaration of title and possession. Their exercise of due diligence is also evident from making the 3rd defendant as a necessary party to the suit, who according to the plaintiff was in possession of the suit property as on the date of filing of the suit. For the above reasons, the order under revision is liable to be set aside. 19. It is pertinent to observe that the 2nd defendant is a Trust, it being a juristic person the authorized person of the Trust should file the counter affidavit. However, it is observed that the counter affidavit to the subject I.A., was deposed by one individual Mr. Yakub Vazir, who is not a party to the suit. Consequently, the counter affidavit submitted by the 2nd defendant should not have been taken on record. 20. The Civil Revision Petition is accordingly allowed, setting aside the order dated 07.11.2019 in I.A.No.125 of 2019 in O.S.No.199 of 2007 on the file of the Special Sessions Judge for Trial of Cases under SCs & STs (POA) Act-cum-XI Additional District & Sessions Judge, Visakhapatnam. There shall be no order as to costs. As a sequel, interlocutory applications, pending if any, shall stand closed.