Civil Revision against dismissal of plea to amend plaint. Court held amendment introducing new case/changing cause of action not permitable.
Civil Revision Petition dismissed with no order as to costs; stay vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER CIVIL REVISION PETITION No.4917 of 2017
ORDER:
This Civil Revision Petition is filed by the petitioner/plaintiff under Article 227 of the Constitution of India against the orders passed by learned VII Additional Senior Civil Judge, Vijayawada, in I.A.No.199 of 2016 in O.S.No.923 of 2007, dated 07.09.2017 wherein and whereby learned trial Judge dismissed the petition filed by the petitioner/plaintiff under Order VI Rule 17 CPC seeking amendment of plaint on the ground that amendment of plaint introduces a new case should not be allowed.
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A.Abraham, who purchased the plot shown as plot No.1 in the rough plan from one C.Kesava Rao under registered sale deed dated 22.04.1981. It is also the contention of the petitioner/plaintiff that plot purchased by R.1/D.1 is in a width of 90 feet on eastern side and road situated in the eastern side of the plot is in a width of 40 feet, which also mentioned in the sale deeds of the plot owners and on the southern side of the plot purchased by R.1 southern boundaries was described as a road and width of the road was not mentioned in the sale deed of R.1. He also stated that at the time of when the plots were divided by the original owners, the width of the road on the southern side was only 27 feet and land owners left land in a width of 3 feet on the southern side of the 1st defendant’s plot (R.1/D.1) plot to make the road as 30 feet and then the land owners took measurements from the line of the then existing road on the southern side and divided the plots. He further stated that R.2/D.2 purchased plot to an extent of 272 square yards marked as plot No.2 in the plaint plan with the specific boundaries and the third defendant purchased to an extent of 275 square yards under registered sale deed dated 29.02.1992, which is plot No.5. He pleaded that on 01.06.2007 when he visited the site, he noticed that R.1, R.2 colluded and illegally, and highhandedly encroached into his site in a width of 14.5” on the southern side and constructed a boundary wall at the points “EF” and R.1/D.1 removed the boundary beam originally existing between his site and the site of R.2 and shifted to further north to cover up his deficit, which was lost during the road formation as per approved lay out. He alleged that R.1, R.2 removed original existing concrete foundation and pillars
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and encroached into his site in his absence and encroached portion is marked as “ADEF” in the rough sketch in an extent of 88.61 square yards and alleged that R.1, R.2 trespassed into his site and occupied forcibly and highhandedly and R.4, R.5 are also necessary parties to the suit since they purchased the plots in the same block from common owners. The main contention of the petitioner is that the trial Court appointed an Advocate/Commissioner to note down physical features of property and measured all the plots belongs to himself and the defendants with the assistance of surveyor of Vijayawada Municipal Corporation, who visited the disputed site and filed report, which clearly shows that his plot was encroached by the respondents. He also alleged that as per Advocate/Commissioner report, R.3, R.4, who are his adjourning northern owners of the suit schedule property are having excess land in their possession more than they are entitled to as per their title deeds and thereby, they encroached part of his house site and made constructions. He also stated that R.3, R.4 encroaching the site, which came to know after filing of Advocate/Commissioner report and also after completion of his cross examination, which necessitated for him to seek amendment of plaint to seek relief of recovery of possession from R.3, R.4/D.3, D.4. The proposed amendment is mentioned in the petition, which reads as under:-
“Details of Amendment sought for:
i).To add para.3A after para.3 of the plaint as follows:-
3A.In case it is held that the plaint schedule property site of 88 square yards of site i.e.,14.60 X 54.66 which is part and parcel of the property covered under the plaintiff sale deed document No.2031/2006 is found to be occupied by defendants 3 and 4 the recovery of the same may be
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ordered which is necessitated from the reports of Advocate/Commissioner, Mandal Surveyor and cross examination of PW.1.
ii).To substitute para.7B as follows:-
To grant decree for recovery of possession of plaint “A” schedule property from defendants after removing super structures there form, in case it is held that the defendants encroached on the southern side of the plaintiff’s property i.e, plot No.3, alternatively in case it is held that as per the enjoyment, the plaint schedule property is occupied by defendants 3 and 4 on the northern side, grant a decree for recovery of possession of plaint “B “ schedule from defendants 3 and 4, as shown in the sketch.
iii).To renumber the plaint schedule as plaint “A” schedule.
iv).To add plaint “B” schedule after plaint “A” schedule.
East: 40 feet wide public Road; 14.60 South: Remaining property of plaintiff 54.66 West: Plot belongs to N.Venkata Ramana 14.60 North: Remaining property of 3rd defendant 54.66”
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cannot seek two prayers in one petition, which is not permissible under law and the petition filed by the petitioner after commencement of the trial and after his cross examination as PW.1 is not maintainable and present petition is filed to get over admissions made by the petitioner in his cross examination. He prays to dismiss the petition.
would submit that at the time of filing of the suit, the petitioner was under impression that R.1, R.2/D.1, D.2 have encroached his site, but after
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Advocate/Commissioner measured the sites with the help of mandal surveyor and filed report then the petitioner came to know that D.3, D.4, who are already parties to the suit encroached the portion of the site of the petitioner due to that the petitioner is seeking amendment of the plaint for recovery of possession in respect of the encroached portion as R.3, R.4 already shown as defendants in the suit. He would further submit that though amendment now the petitioner is seeking claiming relief against R.3, R.4 is not specifically stated in the plaint and to avoid multiplicity of litigation, the petitioner may be permitted to amend the plaint to avoid further litigation. He relied on following precedent law:-
1) Pattan Babu Khan … Petitioner Vs. Tummala Seshi Reddy …
Respondent 2015 (1) Andh LD 81 wherein it is held that when amendment sought is imperative for proper and effective adjudication of suit and granting of amendment would sub-serve ultimate cause of justice, avoid further litigation and any complications at time of execution of decree, in case of ultimate success of plaintiff in suit for eviction and the said amendment can be allowed.
2)A.Krishna Rao … Petitioner Vs. A.Narahari Rao and others …
Respondent 2014(6) Andh LD 258 wherein it is held that merely permitting an amendment of plaint, has the effect of raising a conflicting plea, that by itself would not constitute ground to reject the amendment as it is for the plaintiff to ultimately justify his pleadings and prove the same with reference to evidence.
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3)Chinnappareddy Subba Reddy … Petitioner Vs. Chinnappareddy
Srinu and others … Respondents 2013(4) ALT 319 wherein it is held that
in a suit for injunction, amendment is sought to add alternative relief of recovery of possession, such an amendment is not going to alter the basic structure or nature of the suit, which can be allowed as it would curtail multiplicity of proceedings.
4)Abdul Rehman and Anr… Appellants Vs. Mohd.Ruldu and Ors…
Respondents 2012(6) ALT 41 wherein it is held that the main purpose of allowing the amendment is to minimize the litigation and bar of plea sought in the relief bar of limitation be considered in the light of the facts and circumstances of each case and all amendments which are necessary for the purpose of determining the real questions in controversy should be allowed if it does not change the basic nature of the suit. It is also held that if amendment seeking declaration of title will not introduce a different relief and if granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed.
5)P.Durga Reddy and Another …Petitioners Vs. B.Yadi Reddy …
Respondent 2016 (2) ALT 63 wherein it is held that in a suit for specific performance on agreement of sale when application is filed seeking amendment in boundaries of the suit property , which can be allowed when the defendants not disputes the boundaries mentioned in the plaint when it will not cause prejudice to the defendants.
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He prays to allow the revision petition.
Article 227 of Constitution of India?"
“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:
Provided that no application for amendment shall be allowed after the trial 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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01.09.2022, the Hon’ble Supreme Court held at Para 70, which reads as under:
“70. Our final conclusions may be summed up thus:
(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.
(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.
(iii) The prayer for amendment is to be allowed.
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and
(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).
(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,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(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.
(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.
(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.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(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 for decision.
(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.
(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
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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)”
In Asian Hotels (NORTH) Ltd., Appellant(s) Vs. Alok Kumar
Lodha and others … Respondent(s) in Civil Appeal Nos.3703-3750 of 2022 of Hon’ble Supreme Court of India, dated 12.07.2022 wherein it is held that an amendment cannot be permitted, if which changes the nature of the suit and it is settled proposition of law, if, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in those circumstances, the Court would not be justified in allowing the amendment.
“On 01.06.2007 when the plaintiff visited his site, to his surprise the defendant Nos.1 and 2 colluded and illegally and high handedly encroached into his site in a width of 14.5 on the Southern side and the 1st defendant constructed boundary wall at the points “EF”. The 1st defendant removed the boundary beam originally existing between his site and the site of the 2nd defendant and shifted to further North to cover up his deficit which was lost during the road formation as per the approved lay out. The defendants 1 and 2 removed the originally existing concrete foundation and pillars and encroached site is marked as “ADEF” in the rough sketch in an extent of 88.61 square yards, which is more clearly described in the plaint schedule.
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The defendants 1 and 2 trespassed into the plaintiff’s site and occupied forcibly and high handedly in the absence of the plaintiff without any manner of right. Defendants 4 and 5 are also necessary parties to the suit sine they also purchased plots in the same block from common owner. Hence, the plaintiff files the suit for declaration that the plaintiff is shown as “ADEF” and for consequential possession of the schedule property from the defendants.”
under:-
“Cause of action arose on 12.06.2006 when the plaintiff purchased the site in an extent of 244.4 square yards under Registered Sale Deed dated 12.06.2006 bearing Doc.No.2031/2006 from Thotakura Mohan Chand; paid the entire sale consideration and took possession of the property which is shown as plot No.3 in the rough sketch and marked as “ABCD” and on 01.06.2007 when the plaintiff visited his site, to his surprise the defendant Nos.1 and 2 colluded and encroached into his site in a width of 14.5” and the 1st defendant constructed boundary wall at the points “EF” and the 1st defendant also removed the compound wall originally existing between his site and the site of the 2nd defendant and shifted to further North to cover up his deficit which was lost during the road formation as per the approved lay out; and subsequently at Vijayawada, Krishna District, where the plaintiffs and defendants resides and where the plaint schedule property situate within the jurisdiction of this Hon’ble Court”.
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from common owner. The cause of action for filing of the suit also shows that the petitioner pleaded that on 01.06.2007 when he visited the site, he came to know that R.1, R.2 colluded and made constructions in his site by encroaching his site. It is nowhere mentioned in the plaint that D.3, D.4 also encroached the site and cause of action for filing the suit is basing on alleged encroachment by R.1, R.2 and no allegation is made against R.3, R.4/D.3, D.4 (wrongly noted as D.4, D.5 as there are only the 4 defendants in the suit). The contents of the plaint are extracted in the affidavit of the petitioner filed before the trial Court in a petition filed under VI Rule 17 of C.P.C. The petitioner has shown specific schedule in the plaint with measurements. It is not in dispute that after appointment of Advocate/Commissioner, who visited the plaint schedule property measured the site and filed report and thereafter trial of the suit has been commenced and then PW.1 was examined, who also cross examined by counsel representing the respondent. Then the petitioner came up with a petition seeking for amendment of the plaint now saying that not R.1, R.2 encroached his site but R.3, R.4/D.3, D.4 have encroached and then he wanted to amend the plaint for relief of recovery of possession of plaint “A” schedule property from R.3, R.4/D.3,D.4 after removing super structures, which clearly shows that the present amendment will changes the nature of the suit and cause of action on which suit is originally filed also will change which cannot be permitted under law. The ration laid down in the decision relied on learned counsel for the petitioner rendered on different circumstances. The principles on which amendments can be allowed has clearly held by Hon’ble Apex Court in
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Life Insurance of India case referred supra. When amendment introduced a new case and changes the cause of action, which cannot be allowed. It is also held that proposed amendment seeks to withdraw any admission made in the evidence cannot be permitted.
Consequently, miscellaneous petitions, if any, pending shall stand closed.
The interim stay if any granted is stand vacated.
______________________ BANDARU SYAMSUNDER, J
Dt:11.11.2022. Chb
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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER
C.R.P.No. 4917 of 2017
Date:11.11.2022
Chb
3 issues framed by the court
Whether amendment of plaint introducing a new case by changing the cause of action is maintainable under Article 227.
Whether amendment of plaint to claim relief from nominal defendants after admitting facts implicating other defendants is permissible.
Whether learned trial Judge committed any error in law and fact in dismissing the petition for amendment of plaint.
Colour shows how this judgement treated each authority
Pattan Babu Khan Vs. Tummala Seshi ReddyReferred¶31
Pattan Babu Khan … Petitioner Vs. Tummala Seshi Reddy … Respondent 2015 (1) Andh LD 81
A.Krishna Rao Vs. A.Narahari Rao and othersReferred¶33
A.Krishna Rao … Petitioner Vs. A.Narahari Rao and others … Respondent 2014(6) Andh LD 258
Chinnappareddy Subba Reddy Vs. Chinnappareddy Srinu and othersReferred¶36
Chinnappareddy Subba Reddy … Petitioner Vs. Chinnappareddy Srinu and others … Respondents 2013(4) ALT 319
Abdul Rehman and Anr Vs. Mohd.Ruldu and OrsReferred¶39
Abdul Rehman and Anr… Appellants Vs. Mohd.Ruldu and Ors… Respondents 2012(6) ALT 41
P.Durga Reddy and Another Vs. B.Yadi ReddyReferred¶41
P.Durga Reddy and Another …Petitioners Vs. B.Yadi Reddy … Respondent 2016 (2) ALT 63
Life Insurance Corporation of India Vs. Sanjeev Builders Private LimitedDistinguished¶53
Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited & Another, in Civil Appeal No.5909 of 2022
Asian Hotels (NORTH) Ltd. Vs. Alok Kumar Lodha and othersDistinguished¶80
Asian Hotels (NORTH) Ltd., Appellant(s) Vs. Alok Kumar Lodha and others … Respondent(s) in Civil Appeal Nos.3703-3750 of 2022
2 provisions across 2 enactments
PETITIONER/PLAINTIFF
R.1 to R.4/D.1 to D.4
BANDARU SYAMSUNDER
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
