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2024 DIGILAW 1559 (AP)

Boora Krishnaveni v. Kalagarla Lakshmi Sirisha

2024-11-21

TARLADA RAJASEKHAR RAO

body2024
ORDER : TARLADA RAJASEKHAR RAO, J. 1. The civil revision petitioner herein, who is the plaintiff in the suit, filed suit O.S. No.157 of 2015 on the file of the Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First Class, Vizianagaram, for permanent injunction, of course, belatedly filed an interlocutory application, vide I.A. No.121 of 2023, for amendment of the boundaries in the schedule, wherein it is noticed that the northern and southern boundaries were wrongly typed, hence filed an application for amendment to note down correct boundaries. 2. The boundaries mentioned in the schedule prior to amendment: East: Municipal Road North : common passage West : common stair case South : House of Narasinga Rao 3. The amendment petition was dismissed by the learned trial Court Judge on the following grounds: (1) The failure to mention the correct boundaries in the original plaint for permanent injunction raised doubts about the genuineness of the pleadings and the due diligence of the petitioner; (2) The amendment would not cause injustice to the other party, and the amendment must be necessary to determine the real question in controversy between the parties; (3) No party should be allowed to deprive the other party of the benefits derived from cross-examination of the opposing party's witness by introducing any new pleadings at this stage, relying on the judgment of the common High Court in Ponchareddy Srihari Reddy Vs. Seeribeina Hari Krishna 2014 (4) ALT 104 . 4. The said dismissal of I.A. No.121 of 2023, vide order dated 17.04.2023, was assailed in the Civil Revision Petition on the ground that finding of the trial Court, while dismissing the application, is erroneous and it is contrary to the well settled principles of law and the said amendment does not change the nature of the suit and affect the rights of the parties and in fact it is necessary for rights of the parties and the petitioner is seeking only amendment of the boundaries and the trial Court has dismissed the application ignorantly and relied on the following judgment of the erstwhile High Court of Andhra Pradesh in (1)M/s. V.I.P. Emporium and another Vs. M/s. TCI Finance Ltd. 2012(3) ALD 219 , and (2) Yeliosetty Sahadeva Vs. M/s. TCI Finance Ltd. 2012(3) ALD 219 , and (2) Yeliosetty Sahadeva Vs. Madhavilatha (2017) 4 HLT 620, for the proposition that any mistake, which is found to be clerical in nature, should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice and the amendment sought to rectify the mistake occurred in describing the boundaries of the property in the plaint schedule can be allowed treating the mistake as clerical mistake. 5. Repelling the contentions raised by the petitioner, learned counsel for the respondents-defendants in the suit would submit that documents filed, which are marked as exhibits by the petitioner, disclose that the boundaries mentioned therein and the boundaries mentioned in the plaint schedule are one and the same and the present application for amendment was filed after lapse of 7½ years from the date of filing of suit and he would contend that as held by the Hon'ble Supreme Court in the Judgment Basavaraj and Indira and others 2024(2) ALT 33 (SC), no application for amendment is maintainable after the trial commences and the present the trial has commenced and the petitioner-plaintiff was examined-in-chief and also argued that amendment be rejected, if the petitioner seeks to introduce totally different new and inconsistent case or it changes the fundamental character of the suit, hence prayed to dismiss the Civil Revision Petition. 6. Heard Sri Rayaprolu Srikanth, learned counsel for the petitioner, and Sri K. Subrahmanyam, learned counsel for the respondents. 7. Based on the argument advanced by the counsel for the petitioner, it is imperative to read the provision of Order VI Rule 17 CPC, which reads as follows: "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. 8. 8. What can be understood from a reading of the above provision is that, (a) amendment of pleadings can be allowed at any stage; (b) amendment must be necessary to determine the "real question of controversy" "inter se parties"; (c) if such amendment is sought to be brought after commencement of trial the Court must, in allowing the same, come to a conclusion that in spite of best efforts on the part of the party to the suit, the same could not have been brought before the point of time, when it was actually brought. 9. Recently, the Hon'ble Supreme Court delivered a judgment in Dinesh Goyal alias Pappu Vs. Suman Agarwal (Bindal) and Others, 2024 SCC Online SC 2615 regarding the amendment of the plaint which reads thus: 11.1 The settled rule is that the Courts should adopt a liberal approach in granting leave to amend pleadings, however, the same cannot be in contravention of the statutory boundaries placed on such power. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das 2008 (8) SCC 511 it was held as under: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [ AIR 1957 SC 363 ] which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166 .]" 11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. [Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar (1990) 1 SCC 166 .]" 11.2 Over the years, through numerous judicial precedents certain factors have been outlined for the application of Order VI Rule 17. Recently, this Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd. 2022 SCC Online SC 1128 after considering numerous precedents in regard to the amendment of pleadings, culled out certain principles:- (i) 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) In the following scenario such applications should be ordinarily allowed if the amendment is for effective and proper adjudication of the controversy between the parties to avoid multiplicity of proceedings, provided it does not result in injustice to the other side. (iii) Amendments, while generally should be allowed, the same should be disallowed if - (a) 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. (b) The amendment does not raise a time-barred claim, resulting in the divesting of the other side of a valuable accrued right (in certain situations) (c) The amendment completely changes the nature of the suit; (d) The prayer for amendment is malafide, (e) By the amendment, the other side should not lose a valid defence. (iv) Some general principles to be kept in mind are - (I) The court should avoid a hyper-technical approach; ordinarily be liberal, especially when the opposite party can be compensated by costs. (II) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint or introduce an additional or a new approach. (III) The amendment should not change the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint. 10. The grounds for dismissal of the petitioner's application to amend the boundaries in the plaint by the learned trial Court Judge are contrary to the established legal principles and the judgments of the Hon'ble Supreme Court. 10. The grounds for dismissal of the petitioner's application to amend the boundaries in the plaint by the learned trial Court Judge are contrary to the established legal principles and the judgments of the Hon'ble Supreme Court. The trial Court has failed to appreciate that allowing the amendment would not cause injustice to the opposite party, nor would it prejudice the rights. The amendment is necessary to determine the real dispute between the parties, as the suit is for permanent injunction. The petitioner is not seeking to withdraw any admission that would confer a right on the other party as observed by the learned trial Court Judge and, in fact, no admission was made in favour of the respondents- defendants. Moreover, the judgment relied upon by the learned trial Court Judge is not applicable, as in that case, an admission was withdrawn through an amendment, whereas, in the present case, no such admission has been made or withdrawn, and no cross- examination has taken place. The dismissal of the amendment application reflects a non-application of mind and is in direct contradiction to well-settled principles of law, as well as the binding precedent set by the Hon'ble Supreme Court, referred supra. 11. The petitioner is not seeking any amendment to the plaint itself, but only seeks to rectify a clerical error in the description of the property boundaries in the plaint schedule by interchanging the southern boundary with the northern boundary. The amendment is merely sought to correct a clerical mistake in the boundary description and does not alter the substance of the claim. There is no specific finding what prejudice caused to the respondents-defendants in the suit, while interchanging the southern boundary with the northern boundary. Merely quoting a judgment does not fulfil or serve the purpose in a legal argument, applying case law is to discuss how the principles or reasoning in the cited judgment are relevant to the specific facts of the current case. 12. Hence, the impugned order dated 17.04.2023 in I.A. No.121 of 2023 in O.S. No.157 of 2015 on the file of the Additional Junior Civil Judge-cum-I Additional Judicial Magistrate of First Class, Vizianagaram, is hereby set aside and the said interlocutory application is allowed. The trial Court is hereby directed to permit the petitioner-plaintiff to allow the amendment of the boundaries in the plaint. 13. Accordingly, Civil Revision Petition is allowed, however no costs. The trial Court is hereby directed to permit the petitioner-plaintiff to allow the amendment of the boundaries in the plaint. 13. Accordingly, Civil Revision Petition is allowed, however no costs. As a sequel, interlocutory applications pending, if any, in this case shall stand closed.