Allowed

Nalam Venkata Manikya Rao (died) v. Kadiyam Murali Krishna

Andhra Pradesh HC7 Dec 2022CRP/1274/2020

Case brief

AI extract

What is this about?

The High Court allowed a revision petition dismissing a trial court's order that rejected an amendment petition. The amendment sought to change the relief from cancellation of deeds to a declaration of null and void. The High Court held the trial court erred in focusing solely on delay without applying settled principles regarding animation of lis and due diligence.

What did the court decide?

The impugned order dated 10.02.2020 dismissing the amendment petition is set aside. The amendment petition in O.S. No. 238 of 2007 is allowed subject to payment of Rs. 5,000 as costs.

Nalam Venkata Manikya Rao (died) Vs Kadiyam Murali… — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE MS JUSTICE B.S.BHANUMATHI CIVIL REVISION PETITION No.1274 of 2020

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ORDER:

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This revision petition is filed under Article 227 of the Constitution of India against the order dated 10.02.2020 dismissing I.A.No.33 of 2020 in O.S.No.238 of 2007 on the file of the Court of Additional Senior Civil Judge, Tenali filed under Order VI, Rule 17 and Section 151 CPC to amend the plaint as follows:

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In 4^th page of the plaint, Para 10(a) delete the word “Cancellation of” and insert in its place “Declaration that”, in the same para 4^th line after the word Defendant and before the word “valued” and deleted the word “is” and insert in its place “are Null and Void and not binding on the plaintiffs, the plaintiffs”.

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In particulars of the claim in (a) relief, 6^th line after word “sec” delete the Number 37 and insert in its place “24(d)”.

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In the 5^th page of the plaint, 12^th para, in relief ‘a’ delete the word “cancellation of” and insert in its place “Declaration that” and add in the ‘a’ relief, last sentence after the word Tenali (main) “are Null and Void and not binding on the plaintiffs”.

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Heard Sri M.Chalapathi Rao, learned counsel for the

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petitioners and Sri Yallabandi Ramatirtha, learned counsel for the respondents.

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The facts leading to filing of the revision petition are

briefly as follows:

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The plaintiff by name Nalam Venkata Manikya Rao filed suit for cancellation of the registered gift deed dated 29.03.2007 executed in favour of Kadiyam Murali Krishna (1^st defendant) by his mother Kadiyam Appalamma and a registered sale deed dated 30.07.2007 executed by the 1^st defendant in favour of Eluri Seshagiri Rao (2^nd defendant) before the Sub-Registrar, Kothapet, Tenali Mandal (3^rd defendant); and for consequential mandatory injunction directing the 3^rd defendant to cancel the entries in the books maintained by the 3^rd defendant with regard to those transactions; and for permanent injunction against the 1^st and 2^nd defendants from interfering with the possession and enjoyment of the plaint schedule property by the plaintiff etc.,

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The case of the plaintiff is mainly that the suit schedule property of 106.7 ½ square yards house site (with ACC roofed toilets and bath rooms therein) originally belonged to Tattukolla Nagarathamma who executed a registered will dated 05.09.1970 giving life interest to Tattukolla Nagaiah and vested reminder interest to Kadiyam Appalamma, w/o Ramanjaneyalu and that Nagaiah and Appalamma sold the plaint schedule property to the plaintiff for consideration under a registered sale deed dated 08.08.1973 and since then he has been in peaceful possession and enjoyment of the same by constructing asbestos sheets roofed bath room and toilets along with a dwelling house

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adjacent to the plaint schedule property. It is the further case of the plaintiff that since the 2^nd defendant along with his henchmen came to the plaint schedule property on 18.08.2007 and tried to occupy the plaint schedule property, the plaintiff resisted the same and informed him about his purchase from Nagaiah and Appalamma under the registered sale deed dated 08.08.1973, but the 2^nd defendant claimed that he purchased the plaint schedule property from the 1^st defendant under a registered sale deed dated 30.07.2007 as the 1^st defendant made the 2^nd defendant to believe that the mother of the 1^st defendant Appalamma gifted him the same through a registered gift deed dated 29.03.2007. In view of this back ground, originally the suit was filed for the above stated reliefs.

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The 1^st defendant filed written statement resisting the suit. The 2^nd and 3^rd defendants remained ex parte .

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When the evidence was completed on 19.10.2010 and the suit was coming for arguments, the plaintiff filed petitions to reopen the suit along with other petitions. The petitions were dismissed by the trial Court. Thereafter, the plaintiff approached the High Court of Andhra Pradesh in CRP No.4143 of 2011 and obtained orders of stay vide CMP.MP.No.6888 of 2011. Since then, the order of stay was in force. That apart, other CRPs No.1165, 1857 and 4152 of 2011 were also filed before the High Court. All the four revision petitions were

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disposed by common order dated 17.07.2019 observing that the date of death of Sri Kattapalla Nagaiah in both suits in O.S.No.236 and 238 of 2007 has bearing and therefore both parties must be given an opportunity to get additional issues framed and for that purpose filed appropriate petitions. Pending the suit, the plaintiff died in the year 2012 and his legal representatives who are the plaintiffs 2 and 3 have been brought on record.

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When the suit was proceeding in the light of directions of the High Court in the common order, the plaintiffs 2 and 3 filed I.A.No.33 of 2020 seeking amendments noted above on the ground that while their advocate was preparing for the evidence, the counsel found that the relief in the plaint was wrongly asked for ‘cancellation’ instead of ‘declaration’ and advised to file this petition. It is further contended by the petitioners that the proposed amendments would not change the nature of the suit nor is it necessary introduce any new facts, but the amendments are just and necessary to decide the issues involved in the suit and avoid multiplicity of litigation and that unless the amendments are permitted, the petitioners would be put to irreparable loss and hardship.

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The first respondent/first defendant filed counter opposing the petition mainly on the grounds that the petitioners, being the legal representatives of the deceased sole

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plaintiff, have no right to get the suit amended as per their whims and fancies as their father has let in evidence basing on the averments in the plaint and that the proposed amendments would cause prejudice to the 1^st defendant and also change the nature of the suit. It is also stated that the petition is filed only to drag on the suit which was instituted in the year 2007 and there are no bona fides in filing the petition and that the petitioners are filing petition after petition on some or the other pretext. The 1^st respondent prayed to dismiss the petition.

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On contest, the trial Court dismissed the petition observing that the matter was coming up for arguments since 2010 and even after disposal of the revision petitions by the High Court, the petitioners were not getting relief for framing additional issues and that when the matter is posted for filing of petition for additional issues but not for altering the nature of the reliefs sought by the parties. It is also observed that for permitting amendment of the pleadings after the commencement of the trial, as per proviso to Order VI, Rule 17 CPC, a Court has to conclude that inspite of due diligence the party could not have raised the matter before the commencement of the trial, but in the present case, the petitioners failed to prove such due diligence. The trial Court observed that there are no bona fides on the part of the petitioners in seeking the relief, inspite of the submissions of

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the petitioners that an amendment can be allowed at any stage of the proceedings for the purpose of determining the real questions in controversy between them and the courts have to liberally accept amendment for that purpose and also that the change in the nature of relief does not change the nature of the suit and the said amendment would really subserve the ultimate cause of justice.

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Having aggrieved by the order, this revision petition is filed on the grounds that the amendment would not change the nature of the suit or introduce new facts or new cause of action, but is only intended to convert the relief of cancellation of the documents into one of declaration that they are null and void; that the factual matrix required for the relief proposed is already set out; that it would not require further evidence; that there is neither indolence nor wanton negligence of the petitioner in filing the application for amendment; that no prejudice would be caused nor stated to have been cased to the respondents if amendment is allowed; that it avoids multiplicity of proceedings; that normally amendment of pleadings are allowed and the trial Court ought to have exercised its discretion to allow the petition to do justice to the parties rather than dismissing it on hyper technicalities.

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After arguing on the same lines, the learned counsel for the petitioner placed reliance on the decision of the Supreme

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Court in Abdul Rehman and another Vs Ruldu and others¹ , wherein at para 10 held that where the entire factual matrix for the proposed amendment for the relief of cancellation of sale deeds has already been set out in the unamended plaint, the amendment does not change the nature of the suit and observed as follows:

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“10. Next, we have to see whether the proposed amendments would alter the claim/cause of action of the plaintiffs. In view of the same, we verified the averments in the un-amended plaint. As rightly pointed out by Ms. Manmeet Arora, learned counsel for the appellants that the entire factual matrix for the relief sought for under the proposed amendment had already been set out in the un-amended plaint. We are satisfied that the challenge to the voidness of those sale deeds was implicit in the factual matrix set out in the un-amended plaint and, therefore, the relief of cancellation of sale deeds as sought by amendment does not change the nature of the suit as alleged. It is settled law that if necessary factual basis for amendment is already contained in the plaint, the relief sought on the said basis would not change the nature of the suit. In view of the same, the contrary view expressed by the trial Court and High Court cannot be sustained. It is not in dispute that the relief sought by way of amendment by the appellants could also be claimed by them by way of a separate suit on the date of filing of the application. Considering the date of the sale deeds and the date on which the application was filed for amendment of the plaint, we are satisfied that the reliefs claimed are not barred in law and no prejudice should have been caused to respondent Nos.1-3 (defendant Nos. 1-3 therein) if the amendments were allowed and would in fact avoid multiplicity of litigation.”

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In the same decision, earlier decision of the Supreme

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Court in Pankaja and another Vs Yellapa and others² was

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referred at para 14 to the effect that if granting of amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed and also that an amendment seeking declaration of title shall not introduce a

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1 2012(6) ALT 41 SC

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2 AIR 2004 SC 4102

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different relief when the necessary factual basis had already been in the plaint in regard to the title. Para No.15 of the decision in the case of Abdul Rehman (supra) is very much

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relevant to the present case and it reads as follows:

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“15. We reiterate that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. A change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interests of doing full and complete justice between the parties.”

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He further relied on the decision of the Supreme

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Court in State of Madhya Pradesh Vs Union of India (UOI)

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and others³ at para 10(i), (ii), (iv), (v) which is as follows:

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“10. This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows:

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(i) Surender Kumar Sharma v. Makhan Singh MANU/SC/1674/2009 : (2009) 10 SCC 626, at para 5:

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As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.

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(ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (dead) by L.Rs. MANU/SC/7481/2008 : (2008) 8 SCC 511, at para16:

3 AIR 2012 SC 2518

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Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 Code of Civil Procedure (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil 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.

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(iv) Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors. MANU/SC/8043/2006 : (2006) 4 SCC 385, at paras 15 & 16:

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The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.

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Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. (v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Ors. MANU/SC/1724/2009 : (2009) 10 SCC 84, at para 63:

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On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

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(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

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(2) whether the application for amendment is bona fide or mala fide;

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(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

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(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

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(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

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(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”

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On the other hand, the learned counsel for the 1^st respondent submitted that the petitioners cannot meddle with the plaint as they are only legal representatives of the deceased plaintiff and cannot change the nature of the suit and the cause of action; and that too 13 years after filing of the suit at its fag end to further delay it; and that the relief is barred by limitation and therefore the right accrued to the first respondent cannot be defeated by allowing the proposed amendment. He placed reliance on decision of this High Court in T.Seshu and others V P.Bharathi Devi @ Andhra Bharathi⁴ at paras 3 and 4 which is as follows:

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“3. The petitioners filed the aforementioned suit for permanent injunction restraining the respondent from interfering with the suit schedule property. After the trial was completed and the suit was posted for arguments, the petitioners filed the aforementioned I.A. for amendment of the plaint in order to claim mandatory injunction for eviction of the respondent. At the hearing, learned counsel for the petitioners has submitted that though the respondent trespassed into a part of the suit schedule property in the year 2010, as proceedings arising out of appointment of advocate commissioner were pending before this Court and in view of stay of further proceedings in the suit, his clients could not file the application for amendment earlier.

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Admittedly, the civil revision petition filed against the order of appointing advocate commissioner was disposed of in the year 2012. For five years, the petitioners herein have not filed the application for amendment. This Court in G.S.Prakash V. Polasa Hanumanlu (1) 2015(2) ALT 594 = 2015(1) ALD 270 after exhaustive consideration of the case law inter alia held that in case of pending or post

4 2019(1) ALT 354

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trial amendments, the Court may allow the amendment if the applicant in addition to satisfying the condition that the nature and character of the suit is not altered also satisfies two other conditions, namely: i) that the amendment is necessary for determining the real questions in controversy and ii) that despite due diligence, the applicant could not move the application at an earlier stage. In the instant case, no explanation whatsoever was offered by the petitioners for not moving the application for amendment from the year 2012 when the civil revision petition was disposed of by this Court The petitioners, having kept quiet for five long years and allowed the trial to be completed, cannot be permitted to file the application at their leisure. Though the Court below did not deal with the case in the manner it ought to have, as I am not satisfied with the conduct of the petitioners in filing the belated application at the stage of arguments. I am not inclined to interfere with the order of the Court below.”

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The learned counsel for the 1^st respondent further submitted that though the principle of liberal approach guides exercise of discretion in allowing an amendment, care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under the guise of amendment and in this regard the learned counsel placed reliance on the decision of the Supreme Court in Chander Kanta Bansal Vs Rajinder Singh Anand⁵ , at para 9

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which is as follows:

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“ 9. With a view to shorten the litigation and speed up the trial of cases Rule 17 was omitted by amending Act 46 of 1999. This rue had been on the statute for ages and there was hardly a suit or proceeding where this provision had not been used. That was the reason it evoked much controversy leading to protest all over the country. Thereafter, the rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for

5 AIR 2008 SC 2234

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amendment shall be allowed after the commencement of trial, 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. But whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case. This would, to some extent, limit the scope of amendment to pleadings, but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise.”

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In view of the above cited decisions and the well settled legal propositions a mere change in the relief claimed by altering the relief for cancellation of sale deed and gift deed to declaration of them as null and void when the facts and evidence remain the same, would not lead to change in the nature of suit or cause of action, nor does it cause prejudice to the defendants as the factual matrix in the unamended plaint remains the same even after the amendment, just because the defendants claim that the proposed relief is barred by limitation. The present relief and the proposed relief are the same in their substance, but differ in form only. It may not require any further evidence since there is no change in the pleadings. At the most it may require filing of additional written statement after the amendment is carried out and an additional issue, if required basing on the additional written statement.

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In reply to the objection on the grounds of limitation, the learned counsel for the petitioners submitted that the question of limitation has not been raised in the counter or even in the course of arguments before the trial Court and therefore

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they cannot canvass the question of limitation before this Court in revision under Article 227 of the Constitution of India and reiterated the contentions of the petitioner about the due diligence and the necessity to permit the amendments. He further added that it is a mixed question of fact and law and can be decided in the trial. He referred to the decision of the

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Supreme Court in Mohinder Kumar Mehra Vs Roop Rani

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Mehra and others⁶ , at para 18 which is as follows:

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“18. In the facts of the present case, final determination as to whether the claim could be held to be barred by time could have been decided only after considering the evidence led by the parties. Whether plaintiff had any share in the property, which was sold in the year 2000 and what was the nature of his share and whether he can claim recovery of his share within twelve years were all the questions on which final adjudication could have been made after considering the evidence and at the stage of considering the amendment in the facts of the present case, it was too early to come to a conclusion that limitation was only three years and not twelve years as claimed by the plaintiff. The High Court on the one hand refrained from expressing any opinion and on the other hand has expressed his agreement with the view taken by the Additional District Judge rejecting the application as barred by time.”

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He further referred to decision in Abdul Rehman

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(supra) at para 8 as follows:

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“8) The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent,

6 AIR 2017 SC 5822

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curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.”

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As already held and well settled law that when the question of limitation is mixed fact and law, it can be adjudged during the course of the trial. The defendants have an opportunity of raising such issue in their defence, and issue to that affect can be framed and decided in the trial. As such, on that ground, the relief otherwise permissible cannot be rejected, more particularly when the proposed amendment decides the lis between the parties completely and on merits.

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The learned counsel for the petitioners submitted that the petitioners are prevented by the orders of stay in the revision petitions between the period 2011 to 2019 and thereafter they were taking steps to get the additional issues framed and in the preparation of which the necessity to seek

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amendments was noticed by the counsel and therefore it cannot be said that the petitioners were not diligent in seeking amendments and that when there are no willful latches on the part of the petitioners and no mala fides are attributable or attributed to them, proper and necessary amendments are required to be allowed to subserve the cause of justice and for complete adjudication of the disputes in the interest of justice.

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The learned counsel for the 1^st respondent submitted that the petitioners failed to establish that inspite of exercise of due diligence, they could not have taken the amendment previously, since the suit has reached the stage of arguments way back in the year 2010 itself.

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The learned counsel further placed reliance on the decision in Chander Kanta Bansal (supra) in referring to the meaning of due diligence which is held to be such diligence as a prudent man would exercise in conduct of his own affairs. The learned counsel further added that factually there was no due diligence exercised for taking the amendment since filing of the written statement in which the maintainability of the suit was challenged, both in the original written statement and in the additional written statement filed after impleadment of the legal representatives of the deceased plaintiff. He further stated that even during the pendency of the revision proceedings between the years 2013 and 2019, no diligence has been exercised and

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the said period cannot be taken into consideration in favour of the petitioners.

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When an amendment to any pleading is sought, before the commencement of trial in a case, it would be liberally allowed, but it is sought after commencement of trial, the proviso limits the discretion of a court in allowing amendment, but does not take away the discretion. In this context, it is pertinent to refer the decision of the Supreme Court in Chander Kanta Bansal (supra) wherein it is held at para 10 as follows:

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“10. The entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the others case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. As stated earlier, the reason for adding proviso is to curtail delay and expedite hearing of cases.”

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In the light of the arguments of both counsels, apparently there are no latches or mala fides attributable to the petitioners. When the amendments are required in the present case for the purpose of complete adjudication of the lis, Court has always power to permit amendments as it does not cause substantially prejudice to the other side even if the proposed amendment is allowed. On the other hand, if amendment is not

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allowed, it would cause hardship to the petitioners as the lis cannot be decided on merits. Therefore, it is a fit case where amendment sought to be allowed.

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Since the petitioners stated that the need to seek amendment was realized when the suit was proceeding on the new issue regarding the date of the death of Nagariah, the learned counsel for the 1^st respondent argued that the proposed amendment in the relief to change ‘cancellation of documents as ‘declaration’ of documents as null and void is not relevant nor is it required. But it is to be noted that the said fact is referred as the context in which the advocate realized the need, but not as reason which necessitated the amendments.

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The trial Court has mainly considered the aspect of delay only and totally ignored the other principles well settled to be followed while dealing with petition for amendment. As such, it is required to be set aside and the petition can be allowed imposing terms as to costs on the petitioners.

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In the result, the revision petition is allowed setting aside the order dated 10.02.2020 in I.A.No.33 of 2020 in O.S.No.238 of 2007 on the file of the Court of Additional Senior Civil Judge, Tenali and the I.A.No.33 of 2020 is allowed however, subject to condition that the petitioners shall make payment of Rs.5,000/- (rupees five thousand only) to the

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contesting respondents/defendants on or before 30.12.2022, failing which the petition stands dismissed.

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Pending miscellaneous petitions, if any, shall stand closed.

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B.S.BHANUMATHI, J

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Dt. 07-12-2022 Note: CC by 15.12.2022 B/o PNV