Dismissed

Vemula Parvathi, v. Kunkalaguntla Satyanarayana (Died)

Andhra Pradesh HC15 Jul 2022CRP/55/2021

Case brief

AI extract

What is this about?

This revision petition challenges the impugned appellate order dismissing an amendment application under Order VI Rule 17 CPC filed during an appeal. The High Court held that the amendment would defeat the trial court's judgment. The Court rejected the revision, citing Supreme Court authority on amendable pleadings and the requirement of due diligence.

What did the court decide?

The Civil Revision Petition was dismissed. Miscellaneous applications pending stood closed.

Vemula Parvathi, Vs Kunkalaguntla Satyanarayana… — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.55 of 2021

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ORDER:

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The present Revision Petition is filed aggrieved by an Order dated 21.05.2020 passed in I.A.No.405 of 2018 in A.S.No.87 of 2015 on the file of the Court of the III Additional District Judge, Guntur, Guntur District.

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Heard Mr.M.R.S. Srinivas, learned counsel for the petitioners. Despite service of personal notice as also notice through substituted service, none entered appearance on behalf of the respondents.

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The petitioners herein are the appellants in the above referred appeal. Originally, they filed O.S.No.440 of 2013 on the file of the Principal Junior Civil Judge, Guntur against one Kunkalaguntla Satyanarayana, seeking a decree for a) mandatory injunction directing him/defendant to remove the illegal construction upon the Western side in the Suit Schedule Property which is shown as EFGH in the plaint plan; b) permanent injunction restraining the Defendant and his henchmen, associates, confederates, agents and followers from in any way interfering with the Plaintiffs‟ peaceful possession and enjoyment of the Suit Schedule Property which is shown as ABCD in the plaint plan; c) costs of the suit; and d) such other reliefs as are just and necessary in the circumstances of the case.

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The said Satyanarayana/defendant contested the suit by filing written statement. The learned Trial Court by Judgment and Decree dated 03.02.2015 dismissed the suit, inter alia, observing that the plaint schedule property is in possession and enjoyment of the defendant and

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that he made constructions in it. Further that even though the plaintiffs/petitioners are having right and title over the plaint schedule property as per Ex.A.1, when the same is in the possession and enjoyment of the defendant, the plaintiffs/petitioners cannot seek mandatory injunction directing the defendant to remove the constructions without seeking possession of schedule property from the defendant and as such, the plaintiffs/petitioners are not entitled for mandatory injunction as prayed for.

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Aggrieved by the said Judgment and Decree, the plaintiffs carried the matter by way of an appeal i.e. A.S.No.87 of 2015. During the pendency of the appeal, the petitioners filed I.A.No.405 of 2018 under Order VI, Rule 17 of the Code of Civil Procedure (hereinafter referred to as „CPC‟) seeking permission to amend the plaint as follows:

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Amendments to be made in the plaint

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a) at Para 3 of the plaint at BRIEF FACTS OF THE CASE portion at page 4, sub-Para “h” to amend the plaint at line No.7 after the words “EFGH in the plaint plan” the words “and to deliver the plaint schedule property shown as ABCD in the plaint plan to the plaintiffs possession fro the defendant‟s possession by removing the constructions therein” to be inserted.

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b) at Para IV of the plaint at CAUSE OF ACTION paragraph at page No.6 at line No.9 after the work “seeking” the words “delivery of possession of the plaint schedule property from the defendant shown as ABCD in the plaint plan.” To be inserted before the word mandatory injunction.

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c) at Para V of the plaint at PARTICULARS OF VALUATION after sub-Para “ii” to amend the plaint with sub-Para “iii” as “This being a suit for to deliver the possession of the plaint schedule property from the defendant‟s possession to the plaintiffs‟ possession shown as ABCD in the plaint plan and the plaintiffs valued the relief at Rs.2,786/- on which a Court Fee of Rs.2,786/- is paid under Section 24(d) of APCF & S.V. Act, 1956 by depositing in Syndicate Bank, District Court Compound, Guntur”.

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d) at Para VI of the plaint at prayer portion after sub-Para “as” to amend the plaint with sub-Para “a1” as “to deliver the property lying in between the points ABCD as shown in the plaint plan to the possession of the plaintiffs from the defendant”.

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The 1^st respondent/defendant filed his counter. However, no arguments were addressed though several opportunities were afforded. The learned appellate Court after considering the matter, by an Order dated 26.05.2020 dismissed the said application. Aggrieved by which, the present Revision Petition has been preferred.

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The learned counsel for the petitioner inter alia submits that the Order under Revision is not sustainable, as the Court below failed to exercise the jurisdiction vested in it in a proper perspective. He submits that the plaint can be amended even after passing a decree and power to allow amendment is wide and can be exercised at any stage of the proceedings, in the interest of justice. He further submits that in the present case, due to an inadvertent mistake in not seeking the relief of recovery of possession of „EFGH‟ in the prayer portion of the plaint, the necessity to file the application seeking amendment has arisen and by allowing the said amendment, no prejudice would be caused to the respondents nor would the same change the nature of the suit. He submits that the learned appellate Court instead of adopting a pragmatic and liberal approach, committed an error in taking a hyper technical and pedantic view, which is contrary to the settled principles. Making the said submissions, the learned counsel submits that the Order under Revision is liable to be set aside.

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This Court had considered the submissions made by the Learned Counsel and perused the material on record.

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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 plaint, unless serious injustice or irreparable prejudice is caused to the other side. It is also settled Law that an amendment can be allowed even at the appellate stage. However, as contemplated under Section 107(2) of CPC, the Appellate Court shall have the same powers and shall perform as nearly as may be, the same duties as are conferred and imposed by the CPC on Courts of original jurisdiction in respect of suits instituted therein. Therefore, even for allowing the application seeking amendment, at the appellate stage, the Court is required to bear in mind Order VI, Rule 17 of CPC and the proviso thereto, which permits amendment of pleadings, subject to the satisfaction of the Court that such amendment is necessary for the purpose of determining the real questions in controversy between the parties and opinion that in spite of due diligence, the party could not have raised the matter before the commencement of Trial.

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In the present case, even as per the petitioner‟s affidavit in support of the I.A in question, only in view of the observations made by the learned Trial Judge referred to supra at the time of dismissing the suit, the amendment was sought. Except stating that on making the amendment sought for either the pleadings of the plaintiff or the pleadings of the defendant will not be affected and that the nature of the suit will not changed, no plea has been taken that in spite of due diligence, the petitioners could not raise the matter before the Trial Court or before commencement of Trial.

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The Hon‟ble Supreme Court in M.Revanna vs. Anjanamma (Dead) by L.Rs¹ was dealing with a matter, wherein the Trial Court allowed an application filed by the plaintiff under Order VI, Rule 17 of CPC. On challenge, the High Court set aside the same and the matter was carried by way of 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 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 the 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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The above stated legal position, in the opinion of this Court is applicable even for allowing an application for amendment of pleadings at the stage of appeal. As mentioned supra, no plea was taken by the petitioners with regard to due diligence. In the absence of which, the question of exercising due diligence or discharge of burden by the petitioners to the satisfaction or conclusion of the Court in terms of proviso to Order VI, Rule 17 of CPC would not arise.

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1 Civil Appeal No.1669 of 2019

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In the present case, the learned appellate Court while rejecting the application in question inter alia opined that the proposed amendment seeks to set at naught the judgment of the learned Trial Court and amendments of such nature are impermissible as they defeat everything that was decided in favour of the respondents. The conclusions as arrived at by the appellate Court, more particularly in the light of its finding that the petitioners failed to show due diligence, in the opinion of this Court, does not suffer from any material irregularity or perversity. Therefore, this Court is not inclined to interfere with the Order under Revision.

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The Civil Revision Petition is accordingly, dismissed. No Order as to costs.

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

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__________________ NINALA JAYASURYA, J

Date: 15.07.2022

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THE HON’BLE SRI JUSTICE NINALA JAYASURYA

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Civil Revision Petition No.55 of 2021

Date: 15.07.2022

NJS, J crp_55_2021

I.A.No.2 of 2021

This is an application to bring proposed respondents as L.Rs of the deceased sole respondent and to implead them as respondents 2 to 4. Despite service of personal notice as also substituted service through paper publication, none entered appearance on behalf of the proposed respondents. Hence, allowed.

Vemula Parvathi, v. Kunkalaguntla Satyanarayana (Died)

Case brief

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Vemula Parvathi, v. Kunkalaguntla Satyanarayana (Died)

Case brief

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