Dismissed

Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

Andhra Pradesh HC9 Dec 2022CRP/3700/2019

Case brief

AI extract

What is this about?

This High Court dismissed a revision petition challenging an order that rejected a prayer for amendment of the plaint by the defendant. The court held that Order VI Rule 17 CPC permits a party to amend their own pleadings, not those of the opposing party, and refused to create an exception for partition suits.

What did the court decide?

Civil Revision Petition No. 3700 of 2019 was dismissed with no order as to costs.

Nagoji Srinivasa Rao Vs Mokkapati Vijaya Lakshmi — Partition | Andhra Pradesh HC (2022)

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

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Civil Revision Petition No.3700 of 2019

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ORDER:

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An important question that fell for consideration in this revision is whether a party can seek amendment of the pleadings of another party.

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This revision petition, under Article 227 of Constitution of India, is filed challenging the order, dated 27.11.2019, dismissing I.A.No.539 of 2019 in O.S.No.235 of 2013 on the file of the Court of XIII Additional District Judge, Krishna District, at Vijayawada, filed by the 4^th defendant under Order VI Rule 17 & Section 151 CPC to amend the plaint by incorporating the proposed amendments.

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2. Heard Ms. K. Pallavi , learned counsel, representing Sri K. V. Bhanu Prasad, learned counsel for the revision petitioner/4^th defendant and Sri Marri Venkata Ramana , learned counsel for the 1^st respondent/plaintiff.

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3 . The case of the 4^th defendant in the affidavit filed in support of the petition seeking amendment, in brief, is as follows:

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(a) The plaintiff brought the suit against the defendants for partition of the plaint schedule properties and for other reliefs. The plaintiff failed to mention in the plaint schedule an extent of Ac.5.02 cents of land in R.S.No.78/3, Petrampadu village, Ganginenipalem

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Gram Panchayat. On enquiry, the 4^th defendant came to know that the land of Ac.5.02 cents is originally purchased by his paternal aunt, Buddi Rajeswaramma, in an auction in E.P.No.302 of 1977 in O.S.No.780 of 1974 on the file of the District Munsif, Vijayawada, as the father of the petitioner, Venkateswara Rao, got the property purchased through his sister, Rajeswaramma, and during his lifetime, he enjoyed the property and thereafter, the plaintiff in this suit obtained sale deed from the paternal aunt on 24.02.2005, knowing the fact that the property is joint family property purchased by late Venkateswara Rao. Hence, the property mentioned in the schedule is to be added as proposed item No.11 in the plaint schedule for proper adjudication of the suit.

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(b) The amendment sought in the memo filed on behalf of the 4^th defendant is shown hereunder:

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“Add item No.11 in the plaint schedule:

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“Item No.A

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Krishna District, Ibrahimpatnam Sub-Registry, Ganginenipalem Gram Panchayat area, Petrampadu village R.S.No.78/3A, an extent of Ac.2.07 cents of land is being bounded by:

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East : Property of Kovvuru Seetharamanjaneyulu South : N.S.P Canal West : Property of Vallapudi Venkata Ramireddy North : Property of Dupaguntla Rama Rao

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Item No.B

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Krishna District, Ibrahimpatnam Sub-Registry, Ganginenipalem Gram Panchayat area, Petrampadu village R.S.No.78/3C, an extent of Ac.2.95 cents of land is being bounded by

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East : Property of Kovuru Seetharamanjaneyulu South : Polimera Donka West : Property of Vallapudi Venkata Ramireddy etc. North : NSP canal

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Item No. A & B in total Ac.5.02 cents of land along with all easement rights.”

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4. The 1^st respondent/plaintiff filed counter opposing the petition and stating that Smt. Buddi Rajewawaramma w/o Buddi Venkata Ram Chowdary purchased the property in a Court auction in E.P.No.302 of 1997 in O.S.No.780 of 1974 on the file of the Court of III Additional Junior Civil Judge, Vijayawada. A sale certificate was issued in her favour and she took possession of the property and since then, she was in possession and enjoyment of the property. Subsequently, the 1^st respondent/plaintiff purchased the said agricultural land in an extent of Ac.5.02 cents in R.S.No.78/3A and 78/3C from Buddi Rajeswaramma, for a consideration of Rs.2,46,000/- and obtained registered sale deed, dated 24.02.2005, and took possession of the property. Since then, this respondent has been in peaceful possession and enjoyment of the property as absolute owner thereof. Thus, it is clear that the said property is

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not joint property left by Nagoji Venkateswara Rao. The petitioner also did not include the said property in the plaint schedule property in O.S.No.21 of 2001 on the file of the Court of II Additional District Judge, Vijayawada, filed by the petitioner for partition of some of the joint family properties against the respondent herein, which omission itself shows that the claim of the petitioner is false. The petitioner filed the petition only with a view to harass the respondent and complicate the proceedings and delay the suit to make wrongful gain. There are no grounds to include the petition schedule property. The petition is not maintainable in law or on facts and is liable to be dismissed.

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5. The defendants Nos.1 to 3 adopted by the counter filed by the plaintiff.

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6. At the time of inquiry, exhibits R1 to R3 were marked on behalf of the 1^st respondent by consent.

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7. On contest, the trial Court dismissed the petition holding that exhibits R1 to R3, documents, are very clear that the property which is sought to be amended is a self acquired by property of the plaintiff, and hence, it cannot be included in the suit for partition.

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8 . Therefore, the aggrieved 4^th defendant is before this Court.

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9 . The revision petitioner/4^th defendant contended that the order impugned is contrary to law and the observation of the trial Court that no documentary evidence is produced to show that the property was purchased with joint family funds is erroneous. The trial Court ought to have seen that no prejudice would be caused by including the property in the schedule. Therefore, the order impugned is liable to be set aside.

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10. Now the points for determination are –

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Whether the 4^th defendant is entitled under facts and in law to seek the amendment of plaint as prayed for? And, if so, whether the impugned order is liable to be set aside?

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11 . The petition is mainly opposed by the learned counsel for the 1^st respondent/plaintiff that the revision petitioner/4^th defendant cannot seek amendment of plaint under Order VI Rule 17 CPC as the provision allows only a party who filed the pleading to amend it. Learned counsel further submitted that in the event of any necessity to amend the plaint in case of suit for partition, like in the present case, to introduce any additional party or property, the defendant can raise the point in the written statement and thereafter, the plaintiff has to take appropriate steps to get the plaint amended and if not, the suit has to be decided as it stands with the pleadings available on record, but the defendant cannot compel the plaintiff to amend the plaint nor can the Court permit to do so.

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12 . On the other hand, learned counsel for the revision petitioner submitted that Order VI Rule 17 CPC should be so read to permit the amendment of the plaint by the defendant also in cases of suit for partition only since the plaintiffs and defendants stand on the same footing and placed reliance on the decision in Azgar Barid (D) by Lrds. And others v. Mazambi @ Pyarembai and others¹ , wherein the decisions in Bhagwan Swaroop and others v. Mool Chand and others² and Dr. P. Nalla Thampy Thera v. B. L. Shanker and others³ are relied on to the effect that in a suit for partition, the position of plaintiff and the defendant can be interchangeable.

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13 . In reply , learned counsel for the 1^st respondent submitted that this decision has application only insofar as suit for partition to grant the relief to allot shares but not for the purpose of amending the pleadings as per the provisions of CPC.

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14 . For the purpose of better appreciation, the provision of Order VI Rule 17 CPC is excerpted herein below:

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“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

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1 Civil Appeal No.249 of 2010

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2 (1983) 2 SCC 132

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3 1984 (Supp) SCC 631

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may be necessary 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 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.”

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15 . A plain reading of the provision indicates that it is permissible for a party to amend ‘his’ own pleadings, but a Court cannot permit a party to amend pleadings of other party and no exception is carved out in that regard to any kind of suit. The argument of the learned counsel for the 1^st respondent about the option available to a defendant in such situation is sustainable. As rightly submitted, merely because the status of parties in a suit for partition is interchangeable insofar as the relief to be granted and to contest the suit; the same analogy cannot be drawn and applied to the matter of amending the pleadings. The view of this Court is fortified by the decision of the High Court of Judicature at Hyderabad, in Bollineni Srihari Rao v. Manukondu Ramadevi⁴ , wherein following the decisions in P. Mahalaskhmi and another v. Nagolu Ramanamma and others [2 004(2) L.S. 156] and Chilakani Venkata Rao v. Ch. Lakshman Rao and Ors [2006(3) ALD 614], it was held that in a suit for partition the defendant cannot seek

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4 MANU/HY/0320/2018

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amendment of the schedule of the plaint and that if the defendant so desires, it is for the defendant to amend his own pleadings.

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16 . In this regard, learned counsel for the revision petitioner further submitted that same plea has not been taken before the trial Court in the counter nor was it argued and answered, and therefore, the same cannot be raised before this Court for the first time.

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17 . In reply , learned counsel for the 1^st respondent submitted that a plea is taken in the counter that the petition is not maintainable under law and a legal plea can be taken at any stage, and therefore, it is not a bar to raise the same point before this Court when the law does not permit the relief sought by the petitioner.

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18 . It is also vehemently contended by the learned counsel for the revision petitioner that there is ample evidence to show that these properties are joint family properties, including the evidence of contrary stand taken by the plaintiff in a claim petition filed by her in E.P.No.302 of 1977 stating that they were given to her as pasupu-kunkuma and the same was rejected and an opportunity ought to have been given by the trial Court by allowing the amendment. There was an opportunity for the petitioner to take such pleas in his written statement, but not availed and made a vain attempt for amendment of the plaint.

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19 . As rightly argued, the plea that the petition is not maintainable in law was already taken in the counter though not expressly in this sense. Since law does not permit the relief claimed by the petitioner, it is not a bar to contend the same before this Court. The jurisdiction under Article 227 of the Constitution is exercised to interfere with improper exercise of jurisdiction by Courts subordinate to a High Court.

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20 . Learned counsel for the revision petitioner further submitted

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that in the petition under Order VI Rule 17 CPC, the trial Court has erroneously decided that the properties to be included are separate properties of the plaintiff and not ancestral. Of course, the trial Court ought to have restrained itself in deciding the nature of the property without there being any trial. Anyhow, since the result passed by the trial Court is in consonance with the law, the same requires no interference. Just because, the trial Court has made such observations, the order otherwise sustainable in arriving at the conclusion need not be set aside.

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21 . Apart from the legal bar to file the petition, even on merits, the petitioner does not deserve amendment to the plaint firstly; because it is not his contention that he came to know about this for the first time recently before filing the petition and in such a case, nothing prevented him to include this prayer when he filed another

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suit for partition, vide O.S.No.21 of 2001, as rightly contended by the plaintiff and rightly decided by the trial Court; s econdly, because the appeal against O.S.No.21 of 2001 which he filed is pending and has not taken such steps in his suit, if law so permits; and thirdly , the petitioner has come up with this petition in the year 2019 in a suit filed in the year 2013 and thus no bona fides appear from the conduct of the petitioner.

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22 . As such, for the foregoing reasons, this Court finds that there is no merit in the contentions of the revision petitioner on any of the grounds urged. As such, the revision petition is liable to be dismissed.

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23 . Accordingly, the Civil Revision Petition is dismissed.

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There shall be no order as to costs.

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Miscellaneous petitions pending, if any, shall stand closed.

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________________ B.S BHANUMATHI, J

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09-12-2022

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Note:- L.R copy to be marked (B/o) RAR

Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

Case brief

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Nagoji Srinivasa Rao v. Mokkapati Vijaya Lakshmi

Case brief

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