Dismissed

J Subba Reddy v. Y v Narasimham

Andhra Pradesh HC15 Jul 2022CRP/420/2021

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging the Trial Court’s rejection of an application to amend a plaint’s survey number after the trial had commenced. The Court held that the petitioner failed to prove due diligence as required by the proviso to Order VI, Rule 17 of the CPC.

What did the court decide?

The Civil Revision Petition is dismissed. No costs.

J Subba Reddy Vs Y v Narasimham — Property and Title | Andhra Pradesh HC (2022)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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THE HON’BLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.420 of 2021

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Between:-

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Jonnala Subba Reddy	And	….. Petitioner
1) Yerra Varaha Narasimham
2) Pachipulusu Satesh
3) Karri Varalakshmi		…. Respondents

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ORDER:

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The present Revision Petition has been filed against the Order dated 03.02.2020 in I.A.No.595 of 2019 in O.S.No.950 of 2015 on the file of the Court of the I Additional Senior Civil Judge, Visakhapatnam, Visakhapatnam District.

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Heard Mr.S.V.R.Subrahmanyam, learned counsel for the petitioner and Mr.M.R.S. Srinivas, learned counsel for the respondents.

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The petitioner herein is the plaintiff in the above referred suit filed against the respondents/defendants seeking permanent injunction in respect of the plaint schedule property. It is his case that he is the absolute owner of a vacant residential Plot bearing No.75 admeasuring 415 Sq. Yards covered by Sy.No.34 of Adivivaram Panchayat, purchased for a sale valid consideration through Registered Sale Deed dated 12.01.1995. When he intended to construct a compound wall in respect of his suit schedule property, he was obstructed by the respondents. Under those circumstances, he was constrained to file the above suit for permanent injunction. The respondents/defendants filed

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their written statement and contesting the same. In support of his case, the petitioner herein was examined as P.W.1 and his son as P.W.2. After completion of their cross examination and when the matter was posted for defendants‟ side evidence, the petitioner filed I.A.No.594 of 2019 seeking to reopen the matter along with I.A.No.595 of 2019 and I.A.No.596 of 2019 seeking permission to amend the plaint and to receive the documents respectively. The learned Trial Judge after considering the matter passed the impugned Order dismissing I.A.No.595 of 2019 filed under Order VI, Rule 17 of the Code of Civil Procedure (hereinafter referred to as „CPC‟). Hence, the Civil Revision Petition.

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The learned counsel for the petitioner inter alia submits that the Order of the learned Trial Court is not sustainable, in as much as, it failed to exercise the jurisdiction vested in it. He submits that the Court should be liberal in allowing the prayer for amendment of pleadings, more particularly, when no serious injustice or irreparable loss is caused to the other side. Stating that in the present case, the amendment sought is only in respect of the survey number i.e., to amend the „Sy.No.34‟ as „Sy.No.27‟ in the plaint schedule and by allowing the said amendment, no serious prejudice would be caused to the respondents/defendants. He submits that the counsel appearing for the petitioner/plaintiff had not followed the instructions properly and inadvertently committed a mistake in mentioning the survey number as „Sy.No.34‟ instead of „Sy.No.27‟. The learned counsel also submits that the extent is same and the boundaries will prevail over the survey

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number. He further submits that the petitioner is aged about 77 years and due to his old age, said mistake had been occurred. The survey report confirming that Plot No.75 is in Sy.No.27 was not filed and explaining the circumstances for filing of the application in question, the petitioner sought amendment, but the learned Trial Judge instead of examining the matter, in a proper perspective, went wrong in dismissing the petition on technicalities. Relying on the decision of the Hon‟ble Supreme Court in Rajesh Kumar Agarwal vs. K.K.Modi¹ and the decision of a learned Judge in Sodari Mallaiah vs. Jadi Mallaiah² , the learned counsel states that the Order under Revision is liable to be set aside.

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The learned counsel for the respondents on the other hand submits that the application in question was filed with a view to fill up the lacuna and to withdraw the admissions made by the witnesses examined by the petitioner/plaintiff. He submits that P.W.1 was examined on 28.08.2019 and cross examined on 04.09.2019, whereas P.W.2 was examined on 09.09.2019 and cross examined on 16.09.2019 and the survey referred to by the petitioner was conducted prior to that in the year 2018 and in such circumstances, the petitioner/plaintiff cannot be permitted to amend the plaint as proviso to Order VI, Rule 17 of CPC operates as a bar for post Trial amendments, unless the petitioner establishes that despite due diligence, he could not sought the amendment before commencement of the Trial. Referring to Section 91 of the Indian Evidence Act, he further submits that the

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1 2006 (4) SCC 385

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2 2021 (2) ALT 265 (S.B.)

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petitioner cannot go contrary to the recitals in the document. He submits that if the identification of the property is in dispute, boundaries will prevail, but the situation in the present case is altogether different, in view of the specific deposition of the witnesses in the cross examination. Placing reliance on the decisions of the Hon‟ble Supreme Court reported in M. Revanna vs. Anjanamma & Ors.,³ and Vijay Hathising Shah and another vs . Gitaben⁴ the learned counsel seeks dismissal of the Revision Petition.

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On a consideration of the rival submissions made by both the counsel and perusal of the material on record, the point that falls for consideration is “Whether the Order under Revision warrants interference, in the facts and circumstances?”

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At the outset, it may be noted that as submitted by the learned counsel for the petitioner, the Court should be liberal in allowing the prayer for amendment of pleadings, unless serious injustice or irreparable prejudice is caused to the other side. However, by virtue of proviso to Rule 17 of Order VI of CPC, no application seeking amendment shall be allowed after the Trial has commenced, unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the plea before commencement of Trial.

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The Hon‟ble Supreme Court in M.Revanna vs. Anjanamma (Dead) by L.Rs was dealing with a matter, wherein the Trial Court allowed an application filed by the plaintiff under Order VI, Rule 17 of

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3 (2019) 4 SCC 332

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4 (2019) 5 SCC 360

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CPC. On challenge, the High Court set aside the same and the matter was carried by way of further appeal to the Hon‟ble Supreme Court by the unsuccessful plaintiff. While confirming the Order of the High Court at Para 7 of the said Judgment the Hon‟ble Supreme Court held as

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follows:-

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“7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from 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 the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier.”

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Thus, the burden is on a party to plead and prove that despite due diligence, the amendment could not be sought for before commencement of the trial.

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In M.S. Gnanambika v. V.Subramanyam⁵ an Order of the Trial Judge dismissing the application under Order VI, Rule 17 of CPC seeking amendment of written statement was called in question. A learned Judge of this Court, in the Revision Petition, upheld the Order of the Trial Court inter alia holding that the petitioner therein failed to satisfy the Court with regard to exercise of due diligence, as contemplated under proviso to Order VI, Rule 17 of CPC. The relevant portion of the Judgment may be extracted hereunder:

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5 2019 (5) ALT 203

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“16. But, the principle laid down in Baldev Singh v. Manohar Singh (referred supra) was considered by the Full Bench of the Supreme Court in "Kailash v. Nankhu3", wherein, it was held that, when the issues were framed, the trial is deemed to have been commenced and the same principle is reiterated in Vidyabai & Ors v. Padmalatha & Anr, (2009) 2 SCC 409.

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In view of the law laid down by the Apex Court in the above judgments, when issues were framed and the suit is posted for trial, the trial is deemed to have been commenced. Therefore the principle laid down in Baldev Singh v. Manohar Singh (referred supra) is no more good law, in view of the judgment of the Apex Court in Kailash v. Nankhu (referred supra).

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In J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, the Supreme Court laid down certain tests as to what is 'due diligence' with reference to Order VI Rule 17 C.P.C and proviso thereto and held as follows:

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"13. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

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A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit"

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The word "due diligence" is not exactly defined by the Act, but in Bharat Petroleum Corporation Ltd. v. Precious Finance Investment Pvt. Ltd., 2006 (6) BomCR 510, the Apex Court held as follows:

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"The Dictionary meaning of the expression "due diligence" as given in the Blacks Law Dictionary, Sixth Edition, 1990 means "Such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case." Similarly the Law Lexicon by P. Ramanatha Aiyer, Second Edition (Reprint) 2001 explains "due diligence" to mean such watchful caution and foresight as the circumstances of the particular case demands. While examining the explanation offered or cause shown as to why in spite of due diligence a party could not have raised the matter before commencement of trial, the Court may have to see the circumstances in which the party is seeking

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amendment. In short the explanation as to "due diligence" depends upon the particular circumstances and the relative facts of each case to reach a conclusion one way or the other."

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In Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117, taking note of the object and purpose of Amendment Act 22 of 2002, the Supreme Court held that, 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 to ensure that one party has sufficient knowledge of the case of the other party.

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In view of the tests laid down by the Apex Court in the judgments referred supra as to what amounts to exercise of 'due diligence', the petitioner in the present case did not aver anything in the entire affidavit as to how she exercised due diligence and despite exercise of due diligence, she could not bring those facts on record before commencement of trial. When the petitioner did not raise such plea in the affidavit filed along with this petition, the question of substantiating the same does not arise and in fact, both the parties went into trial, despite denial of title of this petitioner by the respondents about 10 years ago. Suggestions were also put to the witnesses denying the title of the petitioner. But, they did not open their eyes and slept over for a considerable period of time and when defendants witnesses are to be cross- examined, the petitioner realized the mistake she committed in seeking relief and filed petition under Order VI Rule 17 C.P.C to raise a plea that the document sued upon is fabricated, though a specific plea is raised that the document is created one, without explaining as to how she exercised due diligence and failed to take such steps.

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If, the tests laid down in the two judgments referred supra, are applied to the present facts of the case, this petitioner as an ordinary prudent woman failed to take necessary steps before commencement of trial. Failure to take steps at an earlier stage without exercise of due diligence, disentitled her to claim such relief. Therefore, on this ground alone, this petition is liable to be dismissed.

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Unless the petitioner satisfied the Court that, despite exercise of due diligence, she could not have brought the facts on record before commencement of trial. The amendment cannot be allowed as a matter of routine.

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Further, in "Mohinder Kumar Mehra v. Roop Rani Mehra & Ors8", it was held that, the proviso to Order VI, Rule 17 prohibits the entertainment of an amendment application after the commencement of the trial with the sole object that once the parties proceed with the leading of evidence then ordinarily no new pleading should be permitted to be introduced.”

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10. In Bhamidimarri Vijaya Lakshmi vs. M.Uma Lakshmi⁶ , the

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Order of the Trial Court dismissing the application seeking amendment of plaint under Order VI, Rule 17 of CPC was under challenge. The learned Judge of the erstwhile Common High Court for the State of Telangana and Stage of Andhra Pradesh at Hyderabad confirmed the Order of the dismissal, however on independent reasons assigned by him. The learned Judge while dismissing the Revision Petition has also taken note that the affidavit did not explain the necessity of seeking amendment of the prayer and even the conduct of the petitioner does not show that he has exercised due diligence in filing the application for amendment. At Para 8 of the Judgment, the learned Judge held as

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follows:-

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“8. Be that as it may, the point that needs to be considered is whether the petitioner is entitled for amendment of the plaint. Under Order VI Rule 17 CPC, 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. The proviso to the said Rule, however, bars such amendment 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 the trial. Under this provision, a party seeking amendment has to necessarily satisfy two requirements, namely, (i) that the proposed amendment is necessary for the purpose of determining the real question in controversy between the parties and, (ii) if the trial has been commenced the party must satisfy the Court that in spite of his exercising due diligence he could not file an application for amendment before the commencement of the trial. The affidavit filed in support of I.A. No.10 of 2017 is silent on both the aforementioned aspects. It is not explained therein as to how the proposed amendment is necessary for determining the real questions in controversy.”

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6 2018 (1) ALT 323

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11. Ankam Govindamma vs. Syed Shafeullah⁷ , wherein another

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learned Judge of erstwhile Common High Court for the State of Telangana and State of Andhra Pradesh at Hyderabad upheld the Order of the learned Trial Judge dismissing the application filed by the petitioner/defendant under Order VI, Rule 17 CPC seeking amendment of written statement. In the said case, the application seeking amendment of written statement was filed 6 years after filing of the written statement. The learned Judge after referring to the Judgment of the Hon‟ble Supreme Court in Salem Advocates Bar Association,

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Tamil Nadu vs. Union of India⁸ was not inclined to interfere with the Order of the Trial Judge. The relevant portion of the decision reads as

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follows:-

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"Para 26: Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 AIR 2005 SC 3353 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."

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So with the amendment of Order VI Rule 17 CPC and introduction of proviso, the petitioner seeking amendment after commencement of trial shall, convince the Court that inspite of due diligence, he could not have raised the matter before commencement of trial. So in my considered opinion, the yardstick for considering the amendment petition filed after commencement of trial is not only

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7 2018 (4) ALT 421

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8 AIR 2005 SC 3353

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whether a separate suit on same facts and for same relief is not time barred as laid down in Sampath Kumar2, but also whether the petitioner could show plausible cause that inspite of due diligence, he could not raise the matter before commencement of the trial. So to sum up, the amendment petition filed after commencement of trial no doubt can be considered, provided, the petitioner could establish that inspite of exercising due diligence he could not file the petition before commencement of the trial and a separate suit on same cause of action for the same relief could be maintainable. In the instant case, as already observed, the petitioner could not show any plausible cause for the inordinate delay. Hence the petition merits no consideration.”

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A conspectus of the above referred case Law would go to show that exercise of due diligence is a „ Sine qua non’ for considering the application for the amendment of pleadings after commencement of Trial and the Court has to come to a conclusion that even after exercise of said due diligence, the party could not have raised the matter before commencement of trial.

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13. In the present case, as mentioned above the Trial had already commenced, evidence of P.Ws 1 and 2 was completed and the matter was posted for defendants‟ side evidence. At that stage, the application under Order VI, Rule 17 of CPC was filed and in such circumstances proviso to Order VI, Rule 17 of CPC comes into play and unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before commencement of the Trial, the amendment sought for cannot be allowed. It may be recalled here that the Hon‟ble Supreme Court in M.Revanna ‟s case referred to supra held that the burden is on the person seeking amendment after commencement of Trial to show due diligence on his part as

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contemplated under proviso to Order VI, Rule 17 of CPC. Applying the above stated legal principles, it is to be tested as to whether the petitioner/plaintiff in the present case had satisfied the requirement of Law as laid in the proviso to Order VI, Rule 17 of CPC.

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“Or. 6 R. 17 : 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:

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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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14. Admittedly, the petitioner filed the suit in the year 2015 and after lapse of 4 years, the application under Order VI, Rule 17 of CPC was filed. The relevant portion of the affidavit filed in support of the I.A in question may be extracted herein for ready reference.

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“5. I respectfully submit that the 1^st defendant while purchasing the said plot No.73 changed the Northern Boundary as Plot No.74 whereas in the link documents of Plot No.73 clearly shows the Northern boundary as Plot No.75 i.e., the suit schedule property. I respectfully submit that the 1^st defendant also changed the survey No.34 to survey No.27 and I applied for survey the entire layout by applying to the Urban land survey department. Government of Andhra Pradesh through Mee Seva on 18.04.2017 along with copy of the title deed.

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6. I respectfully submit that the Government of Andhra Pradesh got it surveyed through Equalares Technologies Pvt. Ltd., Visakhapatnam, who did the survey through Google maps through satellite and confirmed that the extent of Plot Nos.75 is 415 Sq. yards and in Survey No.27 and confirmed the ground possession of the land together with boundaries on the field and the said report was supplied on 02.08.2018.

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9. I respectfully submit that the said survey report was misplaced at my residence and I could not trace the same and due to old age I forgot about the said survey and during my cross examination the defendant counsel questioned me and I realized about the survey got done by me.

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10. I respectfully submit that after my cross examination I searched in the house and found the satellite photograph along with field map and report submitted the Equalares Technologies Pvt. Ltd., Visakhapatnam and the final report issued by the Tahsildar, Visakhapatnam. I respectfully submit that unless the Honourable Court receive the said satellite photograph along with field map and report submitted the Equalares Technologies Pvt. Ltd., Visakhapatnam and the final report issued by the Tahsildar, Visakhapatnam and the said document is necessary to prove my case.”

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15. Thus, the plea regarding exercise of due diligence has not been taken. Under such circumstances, the discharge of burden on the part of the petitioner to the satisfaction or conclusion of the Court there to would not arise. The learned Trial Judge after considering the matter with reference to Order VI, Rule 17 of CPC as also the proviso was not inclined to allow the application in question, inter alia, observing as follows:-

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“The plaintiff as PW1 and his son as PW2 got sufficient knowledge about the survey which was conducted in the year 2018 on the application of plaintiff and the survey report which is with them as on the day the trial was commenced, never shown any evidence to aver the said particulars in their chief affidavits not even moved the present proposed prayer to show their bona fides to consider their contention. Since the trial was commenced and the material witnesses were examined on behalf of the plaintiffs wherein the defense conducted cross-examination at length particularly in respect of the disputed survey number basing on which issue No.1 was settled for trial. Absolutely there is no diligence on the part of the plaintiff to move the present application at a belated stage which would destruct the entire contention of the defendants if at all permitted. So, the application which is a belated one i.e., after commencement of trial and after completion of the evidence of material witnesses which is nothing but to cover up the latches in the cross-examination of PW1 and PW2 which is absolutely impermissible.”

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16. This Court see no reason to interfere with the view of the learned Trial Judge in the light of the legal and factual position referred to supra. Though the learned counsel had placed strong reliance on the decision in Sodari Mallaiah ‟s case referred to supra, the same is not applicable to the facts of the present case and unless a party seeking amendment discharges the burden of showing due diligence, the application for amendment cannot be allowed, as per proviso to Order VI, Rule 17 of CPC.

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17. In Rajesh Kumar Aggarwal ‟s case, the Hon‟ble Supreme Court held that it is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties. Even if it is felt that the amendment may be necessary for determining the real issue in controversy, as the petitioner has not shown due diligence and amendment would cause prejudice to the respondents/defendants, the same cannot be allowed.

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18. In the light of the above legal and factual position, this Court is of the opinion that the impugned Order does not warrant any interference, as the view taken by the learned Trial Judge is neither perverse nor suffer from any material irregularity.

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19. The Civil Revision Petition is accordingly, dismissed. No costs.

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As a sequel, miscellaneous applications, if any, pending shall stand closed.

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__________________ NINALA JAYASURYA, J

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Date:15.07.2022 IS

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