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2024 DIGILAW 1315 (AP)

Sravanam Nageswara Rao @ Bujji Nageswara Rao v. Sravanam Pavan Kumar

2024-09-19

B.S.BHANUMATHI

body2024
ORDER : 1. This civil revision petition, under Article 227 of the Constitution of India, by the petitioner/petitioner/plaintiff is directed against the orders, dated 21.07.2023, dismissing I.A. No. 99 of 2023 in O.S. No. 238 of 2015 on the file of the Court of the Additional Senior Civil Judge, Machilipatnam, filed under Order VI Rule 17 CPC and Section 151 CPC to permit the plaintiff to amend the plaint by way of inserting Para No. 5c in the interest of justice. 2. Heard Sri A.S.C. Bose, learned counsel appearing for the revision petitioner/plaintiff and Sri Narasimha Rao Gudiseva, learned counsel for the respondents/defendants Nos. 3, 5 & 8. The notices sent to the defendants Nos. 2 & 4 to the addresses as before the trial Court were returned un-served with an endorsement ‘no such addressee’. The 6th defendant died. Though the defendants Nos. 1, 7 & 9 were served, there is no appearance on their behalf. The parties shall hereinafter be referred to as the plaintiff and defendants for the sake of convenience and clarity. 3. The case of the plaintiff in the affidavit filed in support of the petition seeking amendment, in brief, is as follows: (a) The plaintiff brought the suit against the defendants No. 1 to 8 for partition of the plaint schedule properties and to allot 1/7th share to him. During the course of trial, the defendants impleaded the respondent No. 9 as the defendant No. 9 as he purchased an extent of ac.0.87 cents (item No. 1 of written statement schedule property) of agricultural land from the plaintiff through a registered sale deed, vide document No. 2451/2007, dated 21.05.2007. In the said sale deed, it was recited that the schedule property is the ancestral property of the plaintiff and that after the death of his father, the joint family properties were orally partitioned between the plaintiff and his brothers before 1985 and that in the said oral partition, the schedule property fell to the share of the plaintiff. The sale deed was prepared by a document writer at the instance and instructions of the purchaser, i.e. defendant No. 9. The plaintiff is not aware of the said recital until filing of the petition to implead the defendant No. 9 basing on the said sale deed. The sale deed was prepared by a document writer at the instance and instructions of the purchaser, i.e. defendant No. 9. The plaintiff is not aware of the said recital until filing of the petition to implead the defendant No. 9 basing on the said sale deed. No such oral partition of the joint family properties took place in between the plaintiff and his brothers prior to 1985 and the said recital which was mentioned in the sale deed was not made upon the instructions of the plaintiff and he is not aware about such recitals till filing of the petition to implead the defendant No. 9. The joint family properties which were inherited by the plaintiff and his brothers from their father on his death were not partitioned so far. As the joint family properties were not partitioned and the defendants Nos.1 to 8 are not coming forward to partition the plaint schedule properties, the plaintiff was constrained to file the suit. As there is no such oral partition of properties as recited in the sale deed, the plaintiff was advised to insert a Para by way of amendment in the plaint with regard to the said recital in the sale deed, which was made without his knowledge and consent. Hence, it is prayed to permit to amend the plaint by inserting Para 5c. (b) The proposed amendment sought to be inserted as Para No. 5c reads as hereunder: “The plaintiff humbly submits that he sold away Written Statement Schedule item No. 1 property through sale deed dated 21-05-2007, vide document No. 2451/2007 to the defendant No. 9. In the said sale deed, it was recited that the schedule property is the ancestral property and that after the death of father of plaintiff, the joint family properties were orally partitioned between the plaintiff and his brothers before 1985 and that in the said oral partition, the schedule property in the sale deed fell to the share of the plaintiff etc. The plaintiff submits that the said sale deed was prepared by a document writer at the instance and instructions of the purchaser, i.e. defendant No. 9. It is usual practice that the purchaser will get prepare the sale deed as it is for him to take precautions while purchasing a property. The plaintiff submits that the said sale deed was prepared by a document writer at the instance and instructions of the purchaser, i.e. defendant No. 9. It is usual practice that the purchaser will get prepare the sale deed as it is for him to take precautions while purchasing a property. The plaintiff is not aware of the said recital until filing of the petition to implead the defendant No. 9 basing on the said sale deed. No such oral partition of joint family properties took place in between the plaintiff and his brothers prior to 1985 and the said recital which was mentioned in the sale deed was not made upon his instructions and he is not aware about such recital till filing of the petition to implead the defendant No. 9. The plaintiff submits that the joint family properties, which were inherited by him and his brothers after the death of their father were not partitioned so far. The said recital in the sale deed was not made with the consent or knowledge of the plaintiff.” 4. The defendants filed counter opposing the petition and further stating as follows: The properties that were given to the plaintiff in the oral partition were already sold away by him and with a view to grab the property that was allotted to the wife of the 8th respondent, i.e. the 6th respondent, and to the 5th respondent (by all the brothers in a family settlement and having executed relinquishment letter on 10.06.1989, got filed the suit without there being any cause of action. As per the recitals of the document, i.e. sale deed, dated 21.05.2007, executed by the plaintiff in favour of the 9th defendant, it was clearly mentioned that the petitioner/plaintiff sold the property to the 9th defendant which was partitioned by him in the oral partition with his brothers prior to 1985. As per the recitals of the document, i.e. sale deed, dated 21.05.2007, executed by the plaintiff in favour of the 9th defendant, it was clearly mentioned that the petitioner/plaintiff sold the property to the 9th defendant which was partitioned by him in the oral partition with his brothers prior to 1985. Thus, the plaintiff, having admitted the oral partition under the sale deed, dated 21.05.2007, and being fully aware of the contents of the said document, got impleaded the 9th defendant as per orders in I.A. No. 179 of 2021, dated 29.8.2022, and filed the sale deed, dated 21.05.2007, executed by the petitioner in favour of the 9th defendant; to avoid the admission made by him about the oral partition in the sale deed, dated 21.05.2007, now the plaintiff wants to withdraw the admission by way of amendment to the plaint which is not permissible. Hence, the petition is liable to be dismissed. 5. At the time of inquiry, no evidence was adduced, either oral or documentary. 6. On contest, the trial Court dismissed the petition holding that the petition seeking amendment was filed with a mala fide intention to withdraw the admission in the recitals of sale deed, dated 21.05.2007, and that if the petition is allowed, it would definitely cause prejudice to the case of the defendants which cannot be compensated in terms of money. 7. Therefore, the aggrieved plaintiff is before this Court. 8. In the grounds of revision, the plaintiff mainly contended that the proposed amendment would not cause any prejudice to the defendants; that the sale deed, which is executed in favour of the respondent No. 9, has nothing to do with the joint family properties; and that the observation of the trial Court that the plaintiff is withdrawing the earlier pleading is incorrect as the question of withdrawal of admission does not arise at all. Therefore, the order impugned is liable to be set aside. 9. Now the points for determination are: Whether the plaintiff is entitled under facts and in law to seek the amendment of plaint as prayed for? And, if so, whether the impugned order is liable to be set aside? 10. POINT: In view of the facts and the rival contentions, it is profitable to refer to the legal position relevant to the relief sought in the petition. And, if so, whether the impugned order is liable to be set aside? 10. POINT: In view of the facts and the rival contentions, it is profitable to refer to the legal position relevant to the relief sought in the petition. Order VI Rule 17 of the Code reads as under: “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.” 11. The learned counsel for the petitioner submitted that the trial Court dismissed the petition only on the ground that the petition was filed with a mala-fide intention to withdraw the admission made in the recitals of the sale deed, dated 21.05.2007, and prejudice would be caused to the respondents, if the petition is allowed, however, it failed to notice that it is only at the stage of allowing the amendment, and the stage of determination of mala-fides or prejudice would come only after leading the evidence. He further stated that the petitioner is not withdrawing any admissions made in the earlier pleadings and while dealing with a petition for amendment of pleadings, the examination is not with regard to withdrawing of admission made in a document. 12. On the other hand, the learned counsel for the respondents stated that the petitioner failed to make out that in spite of due diligence, the amendment could not be sought earlier, i.e. before commencement of trial. He further stated that when the petitioner has knowledge of the sale deed, as the defendant No. 8 filed petition for impleadment of the defendant No. 9 basing on the said sale deed, immediately thereafter, no step was taken. He further stated that when the plaintiff/PW1 was cross-examined, he denied about the sale transaction and now giving a go bye to what was stated in the cross-examination, a pleading is sought to be introduced contrary to the same. He further stated that when the plaintiff/PW1 was cross-examined, he denied about the sale transaction and now giving a go bye to what was stated in the cross-examination, a pleading is sought to be introduced contrary to the same. It is further stated by him that the property covered by the sale deed is item No. 1 of the amended written statement, and therefore, he could have filed a rejoinder immediately thereafter, but no such step was taken, but, at a belated stage, without having any valid reason for seeking amendment, just to nullify the evidence already placed on record, the amendment was proposed, and therefore, it cannot be allowed in a very casual manner as requested by the petitioner. He placed reliance on the decisions in M/s. Modi Spinning and Weaving Mills Co. Limited Vs. Ladha Ram and Company AIR 1977 SC 680 , wherein it was held at Paras 7 & 10 as under: “7. The trial court rejected the application of the defendants for amendment. One of the reasons given by the trial court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial court said that “the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law.” The trial court held the application for amendment to be not bona-fide. 10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial court.” 13. It is pertinent to refer the decision in State of Andhra Pradesh, Rep. by the District Collector, Ranga Reddy District Vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and Others, 2013 (1) ALT 653 (DB) wherein it was held at Paras 26 & 34 as follows: “26. It is pertinent to refer the decision in State of Andhra Pradesh, Rep. by the District Collector, Ranga Reddy District Vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and Others, 2013 (1) ALT 653 (DB) wherein it was held at Paras 26 & 34 as follows: “26. The Supreme Court dealt with Order VI Rule 17 as restored by 2002 amendment and observed that “to some extent the proviso to Rule 17 of Order VI curtails absolute discretion to allow amendment at any stage...but if the application is filed after commencement of trial it has to be shown that in spite of due diligence, such amendment could not have been sought earlier, and that the object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.” Thus, a distinction between the applications for amendment filed before the commencement of trial and those filed after commencement of trial is highlighted and the curtailment of Court's discretion by the amendment is approved. 34. In Rajesh Kumar Aggarwal Vs. K.K. Modi and Others, AIR 2006 SC 1647 , the Supreme Court noticed that Order VI Rule 17 of CPC consists of two parts. The first part is discretionary leaving it to the Court to order amendment of pleadings whereas the second part is imperative and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. Therein the Supreme Court also pointed out that where the subsequent events sought to be introduced in the pleadings by way of amendment shorten litigation besides preserving and safeguarding the rights of both the parties, the Court ought to allow the amendment as a rule of justice, equity and good conscience. But if any amendment results in changing the basic structure of the suit, the amendment may be refused (See paragraphs 16, 17 and 18 of SCC).” 14. In S. Malla Reddy Vs. Future Builders Cooperative Housing Society and Others, 2013 Law Suit (SC) 338 it was held at Para No. 24 as follows: “24.........The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. In S. Malla Reddy Vs. Future Builders Cooperative Housing Society and Others, 2013 Law Suit (SC) 338 it was held at Para No. 24 as follows: “24.........The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 Code of Civil Procedure was elaborately dealt with on the two earlier petitions filed by the Defendant-Appellants under Order VI Rule 16 and Order VIII Rule 9 Code of Civil Procedure and, therefore, the subsequent petition filed by the Defendants labelling the petition under Order VI Rule 17 Code of Civil Procedure is wholly misconceived and was not entertainable.” 15. Apart from the decisions cited by the learned counsel for the respondents, it is also pertinent to mention the decision of the Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Others, AIR 2022 SC 4256 wherein certain guidelines were summed up in final conclusions at Para no. 70 which reads as below: “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 Code of Civil Procedure 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 Code of Civil Procedure 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 Code of Civil Procedure. (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. (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. (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. (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 mala-fide. (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. (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. 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 and Others] 16. The above stated well-settled principles governing the petition for amendment of a pleading would normally indicate that it is not just the necessity for amendment, but all other considerations including mala-fides in seeking amendment and/or loss of valid defence have to be examined to either allow or reject the amendment. 17. In the present case, the 1st item of amended written statement of the 8th defendant is the property in the sale deed, dated 21.05.2007. Later, the defendant No. 9 was also impleaded by virtue of that sale deed. Even then, the plaintiff did not take any steps to answer the same. Now, contrary to the evidence denying the transaction when it was put to him in the cross-examination, the proposed amendments are sought. If the said amendments are permitted, it would certainly cause prejudice to the defence of the defendants as it would nullify the evidence already brought on record. It is not just the inconsistency between the earlier pleading and the proposed pleading, the effect of the amendment on the case of the opponent at the time when the amendments are sought shall be also taken into consideration so as to identify mala-fides and effect on the defence. As such, in the present case, the amendment as sought at this juncture cannot be permitted. As such, in the present case, the amendment as sought at this juncture cannot be permitted. Therefore, there is no reason to interfere with the impugned order, as the petitioner could not establish even before this Court that he has merit to seek the amendment. 18. In the result, the Civil Revision Petition is dismissed. 19. There shall be no order as to costs. 20. Pending miscellaneous petitions, if any, shall also stand closed.