Allowed

Majeti Badari Narayana Prasad, Guntur Dist v. Sinde Krishnamma, Guntur Dist and Two Others

Andhra Pradesh HC9 Nov 2022CRP/1411/2017

Case brief

AI extract

What is this about?

This revision allowed a petition against a trial court's dismissal of an application to amend a plaint to seek recovery of possession. The revision bench held that since the trial had not commenced and the amendment was necessary for adjudication, the trial court erred in dismissing the prayer without considering essential arguments.

What did the court decide?

Civil Revision Petition allowed; Impugned order set aside; Interim stay vacated.

Majeti Badari Narayana Prasad, Guntur Dist Vs… — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE BANDARU SYAMSUNDER

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CIVIL REVISION PETITION No.1411 OF 2017

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ORDER:

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This Civil Revision petition is filed by the Petitioner/Plaintiff under Article 227 of the Constitution of India against the orders passed by the learned Principal Junior Civil Judge, Mangalagiri in I.A.No.1556 of 2015 in O.S.No.19 of 2015 dated 30-01-2017 where in whereby the learned Trial Judge dismissed the petition filed by petitioner/plaintiff under Order 6 Rule 17 C.P.C seeking amendment of prayer portion of plaint for relief of recovery of possession of the site encroached by respondents/defendants pending the lis.

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The case of the petitioner/plaintiff before trial court in brief is that he filed suit for declaration and for permanent injunction against the respondents in respect of plaint schedule property which is shown in the plaint plan. He alleged that respondents have illegally and high handedly removed the structures on the Southern side of the compound wall which belongs to petitioner/plaintiff and subsequently they encroached the portion which was illegally demolished by them and constructed elevations and arranged doorways on the Northern side of their building with the influence of police and political leaders

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and encroached the portion in the plaint ‘A’ schedule to an extent of 16 yards for which he is seeking recovery of possession by demolishing illegal structure ie., elevations and doorways constructed by the respondents without obtaining municipal approved plan. It is also the contention of petitioner that previously respondents have filed suit wherein Advocate commissioner has been appointed, who filed report in the said suit which fact has to be mentioned in the plaint. Therefore the petitioner filed petition seeking for amendment of the plaint. The respondents have filed counter before the Trial court denying the averments in the affidavit of the petitioner. It is the contention of the respondents that amendment which is sought by the petitioner is barred by limitation and petitioner herein filed similar petition previously and the same was not pressed and he also filed O.S.113/2011 for the same relief which was dismissed on merits and filed present petition with a malafide intention. They prayed to dismiss the petition.

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After hearing both sides, learned Trial Judge dismissed the petition filed by the petitioner on the ground that there are no changes in the physical features of suit schedule after filing of the suit and petitioner not filed any oral or documentary evidence to show the

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changed circumstances if any and if the amendment is allowed prejudice will be caused to the respondents/defendants.

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I have heard learned counsel for Revision petitioner.

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The learned counsel for Revision petitioner would submit that orders passed by learned Trial Judge are not sustainable which resulted in miscarriage of justice to the petitioner. He submits that the Trial Court failed to give reasons for dismissing the petition filed for amendment and amendment sought by the petitioner is required for proper adjudication of the lis. He would further submit that trial of the suit is not yet commenced and question of limitation is mixed question of law and fact which cannot be decided in the petition filed seeking amendment of the plaint, he prays to allow the petition.

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06.. Now the issue that emerges for consideration by this court is :-

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Whether the order under challenge is sustainable or tenable and the same warrants any interference of this court under Order 227 of Constitution of India ?

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Point: -. Before going to the merits of the case it would be beneficial to

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quote Order 6 Rule 17 of CPC which reads as under:-

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“17. AMENDMENT OF PLEADINGS.

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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

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for the purpose of determining the real questions in controversy between the parties.

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Provided that no application for amendment shall be allowed after the trial

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has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. ”

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In Life Insurance Corporation of India/Appellant Vs.Sanjeev

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Builders Private Limited and Another Judgment in Civil Appeal No.5909

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of 2022 of Honourable Supreme Court of India, Paragraph 70 reads as under:

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(i) Order II Rule 2 CPC 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 CPC is, thus, misconceived and hence negatived.

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(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 CPC.

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(iii) The prayer for amendment is to be allowed

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(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

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(ii) to avoid multiplicity of proceedings, provided

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(a) the amendment does not result in injustice to the other side,

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(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear

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admission made by the party which confers a right on the other side and

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(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).

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(iv) A prayer for amendment is generally required to be allowed unless

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(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,

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(ii) the amendment changes the nature of the suit,

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(iii) the prayer for amendment is malafide, or

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(iv) by the amendment, the other side loses a valid defence.

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(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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(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.

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(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.

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(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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(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 fordecision.

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(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.

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(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 & Ors., 2022 SCC OnLine Del 1897)

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In the present case, the petitioner filed suit against respondents for declaration and injunction in respect of plaint schedule property. It is alleged that during the pendency of the suit respondents have demolished portion of plaint schedule property and made some constructions illegally without permission of Municipal authorities due to that he intended to amend the plaint seeking recovery of the possession. The petitioner is also contending that the fact of previous litigation between the parties in the same court has to be brought to the notice of the Court by way of additional pleadings. It is not in

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dispute that trial of the suit is not yet commenced, and question of limitation is the mixed question of law and fact which cannot be decided in the present petition seeking for amendment of the plaint. It is also pertinent to note that respondents/defendants who filed counter have not denied existence of constructions in the disputed property which they are claiming to be their property and the said question can be decided at the time of final disposal of the case. The present amendment sought by the petitioner/plaintiff seeking relief of recovery possession when he already sought relief of declaration of his title it is necessary for proper adjudication of the lis. The learned Trial judge without considering contention of the petitioner and when respondents have also not denied existence of constructions in the disputed property, erroneously dismissed the petition filed by petitioner seeking for amendment which also filed prior to commencement of the trial. Therefore orders passed by the learned Trial Judge are not sustainable either in law or on facts are liable to be set aside which warrants interference of this court under Order 227 of Constitution of India.

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In the result, the Civil Revision Petition is allowed. The orders passed by learned Principal Junior Civil Judge, Mangalagiri, in I.A.No.1556 of 2015 in O.S.No.19 of 2015 is hereby set aside. No order as to costs.

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Consequently, miscellaneous petitions, if any, pending shall stand closed.

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The interim stay if any granted stands vacated.

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__________________________ JUSTICE BANDARU SYAMSUNDER

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Date :09.11.2022

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GRL.

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