Allowed

Chavakula Venkata Subba Raju v. Vanam Durgu Naidu

Andhra Pradesh HC16 Dec 2022CRP/1378/2019

Case brief

AI extract

What is this about?

In this civil revision, the High Court allowed an application to file an additional written statement. The court held that the trial court erred in refusing permission as the trial had not commenced, no prejudice was shown to the plaintiff, and the additional facts were necessary for a complete adjudication of the title dispute.

What did the court decide?

The impugned orders dismissing the application for additional written statement are set aside, and the application is allowed.

Chavakula Venkata Subba Raju Vs Vanam Durgu Naidu — Property and Title | Andhra Pradesh HC (2022)

¶1

THE HON’BLE Ms. JUSTICE B. S. BHANUMATHI

¶2

Civil Revision Petition No.1378 of 2019

¶3

ORDER:

¶4

This Civil Revision Petition is directed against the orders, dated 15.03.2019, dismissing I.A.No.895 of 2018 in O.S.No.626 of 2015 on the file of the Court of I Additional District Judge, Visakhapatnam, filed under Order VIII Rule 9 read with Section 151 CPC seeking leave of the Court to file additional written statement of the 1^st defendant.

¶5

2. Heard Sri Yellabandi Ramatirtha, learned counsel for the revision petitioner/1^st defendant and Sri C.V.R. Rudra Prasad , learned counsel for the 1^st respondent/plaintiff.

¶6

3. The 1^st respondent/plaintiff filed the suit for declaration that

¶7

the plaintiff is the absolute owner of the suit schedule property of 320 square yards out of 1000 square yards of site situated in Sy.No.56/2 shown as “E F G H” in the plaint schedule rough sketch and for delivery of vacant possession of the same to the plaintiff with metes and bounds by removing the wall constructed therein by the 1^st defendant at his own cost within a stipulated period failing which the plaintiff may be permitted to remove the same and recover the costs incurred thereto from the 1^st defendant; to grant permanent injunction against the 1^st defendant not to deal with the

¶8

¶9

BSB, J C.R.P.No.1378 of 2019

¶10

suit schedule property in any manner including development, making constructions, alienation or encumber or creating third party interest whatsoever the suit schedule property, i.e., ‘E F G H’ of the plaint schedule rough sketch, and to declare the approvals of the 2^nd and 3^rd defendants sanctioned to the 1^st defendant as null and void and for costs of the suit. The sketch is shown hereinbelow:

¶11

3.1 The main case of the plaintiff is that Gandham Rama Rao is originally the owner of 1000 square yards of site, and later, he sold middle part of 320 square yards to Smt. Boddu Kamala on 16.11.2000 under a registered possessory sale agreement-cumgeneral power of attorney and the said property is bounded on north and south sides by the remaining site of the vendor and that Smt. Boddu Kamala, in turn, sold the same property to the plaintiff, Vanam Durgu Naidu, under a registered sale deed dated 28.11.2002, and thereafter, the plaintiff was in physical possession and enjoyment of the suit schedule property of ‘EFGH’ with all absolute rights and possession as his vendor did. Later, the plaintiff

¶12

¶13

BSB, J C.R.P.No.1378 of 2019

¶14

sold away the said property to Pothina Siva Lingeswara Rao on 12.01.2017 under an agreement of sale by receiving the entire sale consideration of Rs.6,50,000/- except Rs.10,000/-. The transaction could not be registered as land in Sy.No.56/2 of Pothina Mallayya Palem village is shown in the list of properties prohibited from registration under Section 22-A of the Registration Act, 1908. As such, at the request of the vendee, Pothina Siva Lingeswara Rao, the plaintiff executed a special power of attorney in favour of the vendee on 24.08.2007. The special power of attorney happened to stay unpredictably in Visakhapatnam for quite long time to assist his uncle for cancer treatment and during May, 2015, he came to know and noticed that the 1^st defendant constructed a compound wall extending from south to north by including the suit schedule property as if his property is a contiguous bit as shown in plaint rough sketch as ‘A B I J ‘ by leaving a tiny bit of land towards its north shown as ‘I J C D’ in the rough sketch. Immediately, the special power of attorney holder approached the 1^st defendant and when questioned the same, the 1^st defendant stated that he had purchased 680 square yards of site from the same vendor, i.e., Gandham Rama Rao, under a registered sale deed, dated 07.02.2003. Then, the special power of attorney holder informed the 1^st defendant about purchase of property by him and his vendor and the predecessors-in-title and advised the 1^st defendant to get a

¶15

¶16

BSB, J C.R.P.No.1378 of 2019

¶17

correction deed obtained. However, the 1^st defendant did not heed the advice of the special power of attorney holder and foisted a false report against the special power of attorney holder upon which the police of P.M.Palem police station registered a false case in FIR No.448/2015 under Sections 447, 427 IPC read with Sections 3 & 4 of A.P Land Grabbing Act without making proper investigation. The

¶18

same is being contested by the special power of attorney holder. During all these events, the fact of approving building plan, vide Rc.BA 13359/2013/ACP1, dated 26.10.2013, sanctioned by the 2^nd defendant to the 1^st defendant for construction of an apartment in the disputed site shown as ‘A B I J’ came to their notice. The 3^rd defendant also accorded LRS vide Rc.No.3239/10/L5 to the building plan approved by the 2^nd defendant. Perhaps, the defendants 2 & 3 might have sanctioned approvals basing on the document submitted by the 1^st defendant which is non est in the eye of law as it is defective. Since there is a small error in the sale deed, dated 28.11.2002, regarding registration number of the document of the predecessors-in-title, a registered rectification deed, dated 22.06.2015, was executed by Smt. Boddu Kamala as the document number is mentioned as 2221/2000 instead of 2201/2000 in the registered sale deed, dated 28.11.2002. The special power of attorney holder got issued registered legal notice, dated 21.08.2015, to both defendants 2 & 3 through his counsel with all

¶19

¶20

BSB, J C.R.P.No.1378 of 2019

¶21

the relevant documents with a request to cause enquiry. Notices were received by them. The 1^st defendant, instead of rectifying defective document, arrogantly started making constructions in the site shown as ‘A B I J’. Hence, the suit is filed.

¶22

3.2 Initially, the 1^st defendant filed written statement admitting the fact that Gandham Rama Rao purchased 1000 square yards and was in possession and enjoyment of the same. But it is further stated that Gandham Rama Rao is ceased of possession and enjoyment after execution of the sale deeds in favour of the 1^st defendant and Smt. Boddu Kamala. It is further denied that Gandham Rama Rao sold 320 square yards of middle part of site out of 1000 square yards and contended that no prudent man would sell so. It is further stated that the boundaries in the document of Boddu Kamala are not tallying with the document of Gandham Rama Rao and moreover there are over writings and striking off in the eastern boundary in the document of Smt. B. Kamala and there is variation in the details of the schedule property in the document in favour of V. Durgu Naidu. This defendant contended that the sale deed in his favour clearly shows that 680 square yards of site sold to him is bounded by 30 feet wide road of west side and north side and is located within the boundaries mentioned in the document. The plaint drawn rough sketch is made applicable to the case of the plaintiff and is imaginary and that the special power of attorney is a

¶23

¶24

BSB, J C.R.P.No.1378 of 2019

¶25

cooked up document for the purpose of filing of the suit. The allegation that the property in Sy.No.56/2 is prohibited under Section 22A of the Registration Act is denied since encumbrance certificate issued by SRO, Madhurawada, dated 04.06.2015, shows certain documents were registered in respect of the land in the said survey number. The plaintiff not only attempted but demolished the boundary wall constructed by the 1^st defendant on his property in the year 2003. This defendant constructed row houses with due approval from the panchayat. For development of the property, this defendant removed row houses and retained boundary wall. This defendant intended to construct an apartment in this property of 680 square yards and obtained LRS plan from the 3^rd defendant who issued it after due verification of the physical measurements. The old row houses were assessed to property tax and electric power connection was also established. The approval of plan by GVMC supports the case of this defendant. The suit is bad for non-joinder of necessary parties since Gandham Rama Rao is the original owner of 1000 square yards of site.

¶26

3.3 Later, I.A.No.553 of 2015 filed by the plaintiff seeking interim injunction was allowed. The matter has been carried forward in appeal in C.M.A.No.217 of 2016 before the High Court, but the same was dismissed.

¶27

¶28

BSB, J C.R.P.No.1378 of 2019

¶29

3.4 Thereafter, the 1^st defendant filed petition to receive additional written statement stating that he was advised by the counsel that his written statement needs some more elaboration of facts. Therefore, he sought permission to receive the additional written statement. The petition was opposed by filing counter of the plaintiff that such permission cannot be granted since the 1^st defendant contended from the beginning with different pleas and having lost his legal battle made this attempt to further protract the matter.

¶30

4 . Having heard both parties, the trial Court dismissed the petition observing that the pleadings taken in the additional written statement are found to be only an elaboration of what is already pleaded in the original written statement and that is sufficient to make a concise statement of material facts and the rest of them can be placed as evidence. The trial Court further observed that it is not a case of the petitioner that these facts were omitted while drafting the original written statement though he instructed his advocate.

¶31

5 . Having been aggrieved by the dismissal of the petition, the revision petition is filed.

¶32

6 . Learned counsel for the revision petitioner submitted that since the petitioner has filed the additional written statement before

¶33

¶34

BSB, J C.R.P.No.1378 of 2019

¶35

conclusion of the trial, liberal approach must be adopted by the trial Court to receive the additional written statement, more particularly when there is no withdrawal of the admission made for or against any party and no prejudice is likely to be caused to the respondent/plaintiff. He further submitted that enough opportunity must be given to any party to place all the material facts on record for just, proper and complete adjudication of the dispute. He placed reliance on the following decisions:-

¶36

(i) Vyricharla Educational Society v. B. Krishna Mohan¹

¶37

(ii) S.Venkata Ramanaiah and another v. S. Venkateswarlu Gupta and others²

¶38

(iii) Olymptic Industries v. Mulla Hussainy Bhai Mulla Akberapally and others³

¶39

7 . On the other hand, learned counsel for the respondent submitted that the conduct of the revision petitioner is blame worthy and the attempt to file additional written statement is only to fill up the lacunae in his case since he lost his battle in the interlocutory proceedings till High Court and just to cover up the laches this petition is filed.

¶40

8 . Though Order VIII Rule 9 CPC unlike Order VI Rule 17 CPC does not specify any parameters, both can be decided in the same manner as their effect indeed would be the same.

¶41

1 2019 (5) ALT 209 (AP)

¶42

2 2009 (5) ALD 211

¶43

3 (2009) 15 Supreme Court Cases 528

¶44

¶45

BSB, J

¶46

C.R.P.No.1378 of 2019

¶47

9 . In the present case, the 1^st defendant in the additional written statement submitted that Gandham Rama Rao and the 1^st defendant were friends and that the 1^st defendant reposed confidence in Gandham Rama Rao, but breaching the trust, Gandham Rama Rao purchased the property in his name with the money of the 1^st defendant as the 1^st defendant was staying in Doha in Qatar from the year 1982 onwards and that the defendant never thought that that Gandham Rama Rao would backstab him and later came to know that Gandham Rama Rao intentionally executed document of agreement of sale in the name of his nominee, Boddu Kamala, for creating mischievous litigation and that the 1^st defendant filed civil suits and criminal case against Gandham Rama Rao. The 1^st defendant further narrated the boundaries with their details in the documents in favour of Boddu Kamala and the plaintiff and explained how there is variation in the boundaries. He further explained how boundaries in his documents tally on ground and vary with the documents of plaintiff’s predecessor–in-title. It is further explained that the documents of plaintiff clearly show that the land sold to the plaintiff is situated in one side of 1000 square yards of site, but not in its middle. He elaborated the facts previously stated about construction of fencing around the land purchased by him and obtaining approvals from the Panchayat and enjoying the property since 2003, removal of six row houses in this

¶48

¶49

BSB, J C.R.P.No.1378 of 2019

¶50

site and their demolition for the purpose of raising a multi-storied complex and till that time the properties being enjoyed by his employees and relatives to the knowledge of one and all till the year 2015. It is also pleaded that till the year 2015, the plaintiff or anybody has raised voice against title or possession of the 1^st defendant and thus, the 1^st defendant perfected title by adverse possession. It is further pleaded that the conduct of the plaintiff is to encroach the northern boundary of the defendant and that the plaint is a result of collusion with Gandham Rama Rao since his conduct was exposed by the defendant in the previous litigation. Again, this defendant pleaded that the suit is bad for mis-joinder and non-joinider of necessary parties. Thus, in essence, the 1^st defendant, while reiterating the earlier case, elaborated his case with more details and also additional pleadings against the conduct of Gandham Rama Rao and the previous disputes with him and alleged that he is the man behind filing of the suit.

¶51

10 (i) In Vyricharla Educational Society (1 supra), it was held paras 35, 36 & 37 as follows:

¶52

“35. In terms of Order VIII Rule 9 C.P.C., additional pleadings can be raised by a party to the suit, be it the plaintiff or the defendant. In order to support his defence, when the plaintiff has chosen to file an additional written statement in OS No. 31 of 2013, objections raised on behalf of the defendants to receive the same, cannot stand. It cannot be stated that by the

¶53

¶54

BSB, J C.R.P.No.1378 of 2019

¶55

averments in the additional written statement, the plaintiff has made a departure from his defence in the suit. Even otherwise, considering the fact that OS No. 2 of 2016 and OS No. 31 of 2013 are being tried together, where the parties have to prove their respective cases, by adducing appropriate evidence, the proposed additional written statement cannot cause to any prejudice to the defendants. Added to it, the proposed amendment of the plaint in OS No. 2 of 2016 is to the very same effect as is pleaded in the additional written statement.

¶56

Even otherwise, in all the situations it is not as though the parties are precluded from filing subsequent pleadings either by means of rejoinder by the plaintiff in order to controvert the case of the defendants or in order to meet the case sought to be projected by the plaintiff by the proposed amendments, by filing additional written statement by the defendants. Therefore, even on this score it cannot be stated that the objections raised by the defendants for receiving additional written statement as per the orders in IA No. 91 of 2017 in OS No. 31 of 2013, are proper.

¶57

On behalf of the plaintiff a judgment of this Court in P. Hajiram Bi and others v. M. Ismail Khan and others , MANU/AP/0218/2012 : 2012 (3) ALD 669, is relied on. In this ruling in Para 9, it was observed:

¶58

"The discretion of the Court to allow subsequent pleadings under Rule 9 of Order VIII CPC, is wider than the discretion given to it by Rule 17 of Order VI CPC while in both the events, the parties have to necessarily show diligence, in cases, falling under Rule 9 of Order VIII C.P.C., the Court can show more latitude towards the party in allowing subsequent pleadings by the defendants."

¶59

When the learned Trial Judge, exercised discretion to receive additional written statement, it cannot be found fault with, in

¶60

¶61

BSB, J C.R.P.No.1378 of 2019

¶62

the backdrop of the circumstances of these cases. Therefore, this point is also answered against the defendants.”

¶63

(ii) In S. Venkata Ramanaiah and Ors . (2^nd supra), it was held

¶64

at para No.15 as follows:

¶65

“15. As already aforesaid, no doubt this application had been filed after a lapse of two years after filing the written statement. But, it is not in serious controversy that this is just a pre-trial amendment by virtue of an additional pleading. It is needless to say that such amendments relating to the pleadings may have to be liberally allowed? especially to avoid multiplicity of proceedings and hence the stand taken that this proposed additional pleading is thought of at a belated stage cannot be accepted. Apart from this aspect of the matter, certain submissions had been made that the pleas, which are being raised by way of rejoinder, are not only additional pleas but also are fresh and inconsistent pleas. As the plea of fraud in obtaining sale deed is concerned, though specifically an averment was made in the affidavit filed in support of the application, this Court is unable to find any such plea taken in the proposed rejoinder placed before this Court. It is no doubt true that in relation to the family arrangement the pleas now taken are that the said family arrangement is inadmissible and a further plea also had been taken that the same had not been acted upon. It is needless to say that the merits and demerits of a proposed amendment need not be put to test at this stage and these aspects may have to be decided at the appropriate stage in the light of the evidence which may be adduced by the parties. However, in the light of the elaborate rejoinder which had been permitted to be filed by the learned Principal Junior Civil Judge, Dhone, this Court is of the considered opinion that the petitioners and the other contesting defendants, if any, are

¶66

¶67

BSB, J C.R.P.No.1378 of 2019

¶68

to be permitted to put in the additional written statements in this regard, if they are so advised.”

¶69

(iii) In Olympic Industries (3^rd supra), it was held at paras 10,

¶70

14, 15 & 18 as follows:

¶71

“10. So far as this ground is concerned, we do not find that delay is a ground for which the additional counter statement could not be allowed, as it is well settled that mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional counter statement. At the same time, delay is no ground for dismissal of an application under Order 8 Rule 9 of the Code of Civil Procedure where no prejudice was caused to the party opposing such amendment or acceptance of additional counter statement which could easily be compensated by cost. That apart, the delay in filing the additional counter statement has been properly explained by the appellant.

¶72

In our view, this is also not a ground for which the High Court could interfere with the concurrent orders of the Rent Control Tribunal and reject the application for permission to file additional counter statement. In our view, even by filing an amendment or additional counter statement, it is open to the appellant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the counter statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. [See: Usha Balasaheb Swami and Ors. v. Kiran Appaso Swami and Ors . MANU/SC/7318/2007: AIR 2007 SC 1663. Therefore, we are unable to agree with the High Court on this ground as well.

¶73

It is also well settled that the courts should be more generous in allowing the amendment of the counter statement

¶74

¶75

BSB, J C.R.P.No.1378 of 2019

¶76

of the defendant then in the case of plaint. The High Court in its impugned order has also observed that in order to file an additional counter statement, it would be open to the defendant to take inconsistent plea. The prayer for acceptance of the additional counter statement was rejected by the High Court on the ground that while allowing such additional counter statement to be accepted, it has to be seen whether it was expedient with reference to the circumstances of the case to permit such a plea being put forward at that stage.

¶77

It is also well settled that while allowing additional counter statement or refusing to accept the same, the court should only see that if such additional counter statement is not accepted, the real controversy between the parties could not be decided….”

¶78

11 . A perusal of the above additional pleadings would indicate that they are also necessary facts to be stated by the 1^st defendant as a part of his defence so that the real dispute may be placed for effective, appropriate and complete adjudication. The veracity of these pleadings cannot be discussed at this stage. Since the trial has not yet commenced, a fair opportunity to the 1^st defendant to place all facts in his written statement ought to have been given. If at all there is any delay in his approach, the same can be compensated by imposing some terms on him, but he cannot be prevented from filing additional written statement.

¶79

12 . The fact that the trial has not commenced is admitted. When it is the opinion of the trial Court that the defendant has not

¶80

¶81

BSB, J C.R.P.No.1378 of 2019

¶82

brought forth any new or inconsistent case in the additional written statement, prejudicially to the case of the plaintiff, in the light of the pleadings already taken in the written statement, the trial Court ought to have provided permission to the petitioner to file additional written statement, but failed to exercise jurisdiction in a manner of settled law.

¶83

13 . In the result, the Civil Revision Petition is allowed setting aside the orders, dated 15.03.2019, passed by the learned I Additional District Judge, Visakhapatnam, passed in I.A.No.895 of 2018 in O.S.No.626 of 2015, and allowing the said application.

¶84

There shall be no order as to costs.

¶85

Miscellaneous petitions pending, if any, shall stand closed.

¶86

_________________ B. S. BHANUMATHI, J

¶87

RAR

Chavakula Venkata Subba Raju v. Vanam Durgu Naidu

Case brief

What is this about?

What did the court decide?

Chavakula Venkata Subba Raju v. Vanam Durgu Naidu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Guthulu Nirmala Devi Vs Pithani Lakshmi Devi

N. Meena Kumari Vs J. Anitha Kumari

N. Meena Kumari Vs J. Anitha Kumari

Uppala Sudhakar Rao Vs Anumalasetty Lakshmi Kumari

Uppala Sudhakar Rao Vs Vuppala Narasimha Rao

Uppala Sudhakar Rao (died) Vs v.v.S.Shantha Kumari