S. Bale Naik Anantapuramu Dist v. P. Umamahesh Anantapuramu Town
2025-04-30
V.R.K.KRUPA SAGAR
body2025
DigiLaw.ai
ORDER : V.R.K.Krupa Sagar, J. 1. The plaintiff filed this civil revision petition under Article 227 of Constitution of India assailing the docket order dated 24.10.2014 of the learned Principal Junior Civil Judge, Anantapuram in I.A.No.739 of 2014 in O.S.No.319 of 2010. 2. Heard arguments of Sri K.Srinivas, the learned counsel for revision petitioner and Sri M.Raj Kumar, the learned counsel representing Sri P.Narahari Babu, the learned counsel for respondent. 3. O.S.No.319 of 2010 is a suit for permanent injunction and the said suit is pending before learned Principal Junior Civil Judge, Anantapuram. After considering the rival pleadings, issues were settled. Plaintiff filed his examination-in-chief by way of affidavit as PW.1. While the matter was coming up for cross- examination, the defendant moved I.A.No.739 of 2014 in O.S.No.319 of 2010 under Order VI Rule 17 C.P.C. praying for incorporating certain amendments in his written statement. Proposed amendment: 1) In Para 4 of the written statement in Line No.4 after the word "is" put word "not". 2) After para 8 add Para 8(a) as follows: "It is submitted that the Sy. No.267/1, 2, & 3 of Naik Nagar are in approved layout plan vide L.P.No.128/81. The Anantapuramu Municipality has taken into consideration of plan prepared in I.A.No.92/1955 in O.S.No.41/1952 on the file of this Hon'ble Court for approval of Layout plan vide L.P.No.128/81. It is submitted that one Gampanna was sought for master plan for above Sy.No. for his Plot No.106 under Right to Information Act for which Municipality in its letter dated 05.03.2014 has clearly given boundaries for Plot No. 106. As the plaintiff has also purchased the property in the said Sy.No. in Plot No.50, the boundaries for the said plot will totally be different as there is no road to his plot on Northern side. The boundaries for Plot No.50 are totally different and not correct boundaries. The correct boundaries for Plot No.50 are on the East: Plot No.55; on West: Road; on North: Plot No.59; and on South: Plot No.51 as mentioned in Layout plan No.128/81. The plaintiff has deliberately alleged to have constructed house in different plot by encroaching into Plot of this defendant which is in Plot No.65. There is no road on the Northern side either to plaintiff or to the defendant plots. Further it is submitted that the plan filed is kacha layout plan which has no bearing.
The plaintiff has deliberately alleged to have constructed house in different plot by encroaching into Plot of this defendant which is in Plot No.65. There is no road on the Northern side either to plaintiff or to the defendant plots. Further it is submitted that the plan filed is kacha layout plan which has no bearing. 3) After Para 8(a) add Para 8(b) as follows: "It is further submitted that there is a dispute with regard to identity of the plaint schedule property as the plaintiff has not constructed the alleged house in his site of Plot No.50. Hence in view of the dispute with regard to title, it is necessary for the plaintiff to seek for declaration of title to the plaint schedule property. Without relief of declaration of title the present suit for permanent injunction is not maintainable. On that ground the suit is liable to be dismissed. Further the plaintiff has not come to court with clean hands as the relief sought for is equitable relief. Hence on this ground also the suit is liable to be dismissed. It is further submitted that the endorsement issued by Anantapuramu Municipal Corporation shows that there is no road towards Northern side of plaint schedule property as claimed by plaintiff. Hence the suit is liable to be dismissed on this ground also. The further allegation that existence of road shown on Northern side of Plot Nos.49, 51 and 54 which are adjoining plots to suit schedule properties is not correct." 4. The plaintiff was granted an opportunity to file a counter and in fact a very detailed counter was filed by the plaintiff. Learned trial Court considered the rival submissions and concluded that the proposed amendment in the written statement was more in the nature of elaboration of contentions that were already incorporated in the written statement and the amendment of the written statement would not cause any prejudice or loss to the plaintiff especially since the trial is yet its inception. It allowed the petition. The plaintiff is aggrieved of it and preferred this revision. 5. Learned counsel for revision petitioner/plaintiff contends that: The defendant/respondent had come up with an amendment of his written statement 3 years 7 months after filing of the written statement and was filed after commencement of trial. In such circumstances the trial Court ought to have dismissed the petition.
The plaintiff is aggrieved of it and preferred this revision. 5. Learned counsel for revision petitioner/plaintiff contends that: The defendant/respondent had come up with an amendment of his written statement 3 years 7 months after filing of the written statement and was filed after commencement of trial. In such circumstances the trial Court ought to have dismissed the petition. It is further contended that earlier the defendant/respondent prayed for appointment of an advocate commissioner and the trial Court dismissed that and the revision preferred by the defendant/respondent was also dismissed by this Court and those orders became final and at that stage the defendant came up with this amendment petition which ought to have been dismissed by the trial Court. In the opinion of the plaintiff a suit for mere injunction was sufficient. However, the defendant by the disputed amendment intended to plead that the plaintiff shall be obliged to pray for declaration of title and such amendments would cause prejudice to the plaintiff and the trial Court ought to have dismissed the petition. 6. As against the above submissions, the learned counsel for respondent/defendant argued that looking at the averments in the plaint and the written statement the dispute revolves around the boundaries of the property and the identity of the property and considering such facts and circumstances the trial Court rightly allowed the petition and without any merits this revision is preferred and therefore, this revision may be dismissed. 7. The point that falls for consideration is: “Whether the impugned order is erroneous on facts or law requiring interference?” POINT: 8. Order VI Rule 17 C.P.C. reads as below: “Order VI Rule 17 C.P.C. 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.” 9.
No period of limitation is prescribed either in the Code of Civil Procedure or in the Limitation Act, 1963 for making an application for amendment of the pleadings. In fact Order VI Rule 17 C.P.C. permits a party to alter or amend his pleadings at any stage of the proceedings. In such view of the matter, filing of a petition 3 years 7 months after filing of the written statement cannot be said to be a belated petition. Contentions raised contrary to it are thus negatived. 10. After framing of issues by the trial Court, examination-in- chief by way of affidavit of plaintiff was filed and thus, the trial commenced. To expedite the trial process, the proviso of Order VI Rule 17 C.P.C. directs the Courts that if the amendments were proposed subsequent to commencement of trials, the Court has to see whether despite due diligence the party could not have raised the matter before the commencement of trial or not. In the present case trial in the suit commenced. Therefore, the above mandate of the legislature must be complied with. It shall be recorded that the proviso itself makes it clear that there is no prohibition for praying for amendment of pleadings by any party and there is no prohibition for a trial Court in considering and allowing an application for amendment even after commencement of trial. The only aspect that shall be borne in mind by the trial Court is to see and apply the doctrine of “due diligence”. That aspect of the matter must be considered now. A copy of the plaint and a copy of the written statement are made part of the revision papers. Plaint and plaint schedule referred to plot No.50 with specific boundaries. Northern boundary is mentioned as 30 feet road. According to the plaint, the cause of concern for him was that the defendant in the suit was trying to remove that 30 feet road forcing the plaintiff to sue him for a permanent injunction. In the written statement the categorical contention of the defendant is that according to the documents the plaintiff was not a title holder of the suit schedule property, but he constructed a house in plot No.65 which belonged to this defendant. The plaint-referred plot No.50 is in a different layout.
In the written statement the categorical contention of the defendant is that according to the documents the plaintiff was not a title holder of the suit schedule property, but he constructed a house in plot No.65 which belonged to this defendant. The plaint-referred plot No.50 is in a different layout. Taking advantage of the fact that two layouts are adjacent to each other, the present false suit was filed. 11. Be it noted that in the pleadings on both sides there were references to master plans. 12. Thus, the real controversy was about the identity of the property which includes the road that is stated to be on northern side of the disputed property. Despite the grounds urged in the original written statement of the defendant raising questions about the identity of the property, his application for appointment of an advocate commissioner to localize the property was opposed by the plaintiff earlier. It is only after dismissal of such an application, the defendant had taken recourse for amendment of his written statement. In the amendment he proposed, the details of master plan and other aspects were adverted to making his stand clearer. The trial Court observed, what was originally pleaded in the written was merely attempted to be elaborated in the amendment. The above circumstances and facts make it crystal clear that the defendant who failed to have an advocate commissioner appointed to localize the property prayed for amendment in the written statement. In other words, his expectation that the appointment of an advocate commissioner would have minimized his pleadings. In such circumstances it cannot be said that he was not diligent enough in disclosing the requisite facts in his written statement. At any rate, looking at the substance of the litigation the core aspect at dispute, the proposed amendment in the written statement could not be said to have caused any prejudice to the plaintiff. The trial Court rightly appreciated all these aspects. 13. When the original written statement itself had disputed the title of the plaintiff over the plaint schedule property which the plaintiff had to meet at the trial, the more specific averment in the written statement that the plaintiff ought to have asked for a declaration cannot be said to be something that amounted to any new defence or debarring the plaintiff from the advantage of relying on any admissions in the written statement.
Therefore, there is no merit in the contention of the revision petitioner/plaintiff about that part of the proposed amendment. The trial Court rightly referred to the ruling of their Lordships of the Hon’ble Supreme Court of India in Baldev Singh v. Manohar Singh , (2006) 6 SCC 498 /2006 (5) ALT 52 wherein it was laid down that the trial Courts were endowed with large discretionary jurisdiction in considering amendment of pleadings in the written statement which would even permit adding a new ground of defence. 14. In the light of the above principles of law when this Court had assessed the material on record, it finds that the trial Court did not commit any error in exercising its discretion and it really exercised its discretion as required by the facts. There is no merit in this revision. The point is answered against the petitioner. 15. In the result, this Civil Revision Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.