Allowed

R.Mythraiye v. Mssv Satyanarayana

Andhra Pradesh HC15 Sept 2023CRP/406/2022

Case brief

AI extract

What is this about?

The High Court allowed a Civil Revision Petition under Article 226 against a trial court's order dismissing an application for amendment of pleadings in a property suit. The High Court held that necessary amendments regarding names and boundaries should be allowed to avoid prejudice and technical stumbling blocks, imposing costs on the petitioner.

What did the court decide?

The impugned order dismissing the amendment application is set aside; the I.A. No. 40 of 2021 is allowed subject to payment of Rs. 10,000 costs to the respondent.

R.Mythraiye Vs Mssv Satyanarayana — Property and Title | Andhra Pradesh HC (2023)

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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

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FRIDAY ,THE FIFTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE MS JUSTICE B S BHANUMATI# 7

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CIVIL REVISION PETITION NO: 406 QF 2022

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“'“a Conslitofion of India is filed seeking to 279/2003 nn^ty '^®fT/®Aaa 40/2021in O.S No. 279/2003 on the file of IV Additional Senior Civil Judge, Vijayawada Krishna District and to allow the said LA. as prayed for.

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Between:

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R.Mythraiye, D/o R.Ram Prasad, Hindu, aged about 30 years, R/o Sarala Nagar, near JMJ College, Tenali, Guntur District.

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...Petitioner/Petitioner/Plaintiff AND

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1. MSSV Satyanarayana, S/o MBRVK Rao, aged 62 years, R/o Punadipadu,

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Kankipadu Mandal, Krishna District.

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2. Ch. Sai Lakshmi, W/o Ch. Anil Babu,; aged 45 years, R/o Near Siva Ganga

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Temple, Kalekhanpet, Machilipatnam.

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3. M.Jaya Lakshmi, (Died).

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...Respondents/Respondents/Defendants

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lA NO: 1 OF 2022

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stated circumstances 2022 "pa“ Co^/oHhe^dJcreeta^ orde7dat™''5'^ Sio^rsVni;; i,Ci,^;udrX'ra^a,^^- - -- -

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Counsel for the Petitioner: Sri. VENKATESWARLU KOLLA

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Counsel for the Respondent No.1 : Sri. T RAGHU PRASAD

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Counsel for the Respondent No.2 : None Appeared

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The Court made the following:

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

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CIVIL REVISION PETITION No.406 OF 2022

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ORDER:

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This revision petition is filed under Article 227 of the Constitution of India against the order dated 05.01.2022 dismissing the petition in LA. No.40 of 2021 in O.S. No.279 of 2003 on the file of the Court of IV Additional Senior Civil Judge, Vijayawada, filed by the plaintiff under Order VI, Rule 17 and Section 151 of the Code of Civil Procedure, 1908 (‘CPC’) seeking

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the following amendments

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The name of the plaintiff was wrongly typed as ‘Maitreyi’ instead of ‘Mythraiye’. It is to be amended accordingly in the short and long cause titles.

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2. In the last line ofpara No.III, it was typed as “only son defendant herein” instead of “father of defendant herein”. It is to be amended accordingly.

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“2st 3. In the line of para No.IV, it was mentioned as defendant”. It is to be amended as “father of the 1^^ defendant”.

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Amended to the boundaries mentioned in ‘A’properties:

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In Item No. 1 in the western boundary, in place of “An extent of Ac. 1.32 cents out of Ac.3.75 cents allotted to D2 in R.S.No.63”, it is to be amended as “Land of Anamolu Lakshmi Vanajakshi” recital regarding boundary on the west substitute the following “Land ofAnamolu Lakshmi Vanajakshi”. (Reference in Doc. No.2)

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In Item No.2 in Eastern boundary, in place of ‘M.S.Krishna Rao’ it is to be amended as “M.B.R. V.Krishna Rao”. In Southern side in

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place of “Do” it is to be amended as “M.B.R.V.Krishna Rao & Mythraiye, in the western boundary plaintiff Mythraiye is to be amended in place of Do’ (reference Doc Nos.3 & 4)

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In Item No.3 in Southern boundary is to be amended as “M.B.R. V.Krishna Rao” in the

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place of “An extent of 0.07 cents allotted to D4

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in RS No.57/2’’ (Doc.No.2)

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In Item No.4 in Southern boundary it is to be amended as “Land of Madhusudan Rao” in the place of “Maddall Babu Raja Venkata Krishna Rao’s land”. In the northern boundary it is to be amended as “Land of M.B.R.V.Krishnarao” in the place of “An extent of Ac.0.13 cents allotted to D4 in Rs.No.57/1”. (Docs 1 & 2)

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In item No.5 of A’ schedule property is a house site which is an extent of 1318.716 square yards and court fee also paid for that extent by the time of filing of the suit as shown in the plaint. The same extent was typed in the A’ schedule item No. 5 as “1318.716 square yards. But I could not observe why, when and how that 1318.716 was struck off and written as “551/716” with black ink pen. The same was carry forward in the amended plaint also

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by the time of typing it in a mechanical manner. So, in ‘A’ schedule item No.5 in lane 3, it is to be amended as “1318.716 sq yards’" in place of “551/ 716 sq yards”.

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Heard Sri K.Venkateswarlu, learned counsel for the petitioner and Sri T.Raghu Prasadh learned counsel for the respondent.

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The revision petitioner/plaintiff filed the suit in O.S. No.279 of 2003 seeking declaration that the plaintiff has title to the landed property shown in items 1 to 5 i in Schedule-A and the property shown in schedule-B and for consequential recovery of possession of those properties after partition by metes and bounds and also for mesne profits of Rs.45,000/- and suit costs. 04. The contention of the plaintiff is, briefly, as follows:

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(a) Late Maddali Babu Raja Venkata Krishna Rao @ Babu Rao is her maternal grand-father. Smt. Raparia Ramadevi is her mother. Maddali Sri Sai Venkata Satyanarayan Rao / D.l is her maternal uncle i.e. brother of her mother. Ms.Chadalavada Sai

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Lakshmi/ D.2 is another maternal grand daughter of Babu Rao through his eldest daughter Chadalavada Kamalarani. Smt. Maddali Jaya Lakshmi/D.3 is the wife of late Babu Rao and maternal grand-mother of the plaintiff and D.2. Late Maddali Jagannadham and Maddali Annapurnamma are the parents of Babu Rao. They have four more daughters by name Katragadda Sri Krishnamma, Anumolu Lakshmi Vanajakshi, Gogineni Vasumati Devi and Maddali Suvarna Kumari. They have only son who is the 1®^ defendant herein. Late Maddali Jagannadham and Babu Rao partitioned their joint properties under a registered deed dt. 12.01.1965. In the said partition, A-schedule properties fell to the share of Jagannadham and B-schedule properties fell to the share of Babu Rao. After the death of Jagannadham, one of his daughters Katragadda Srikrishnamma (sister of Babu Rao) filed O.S. No. 173 of 1992 on the file of the Court of Senior Civil Judge, Vijayawada, which is later transferred to the Court of IV Additional District Judge, Vijayawada and renumbered as O.S. No.63 of 1998 against her mother, three sisters and the first defendant herein for partition of the properties fell to the share of Jagannadham. The suit

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ended in compromise decree dt,09.09.1999. In the compromise, item No.4 properties fell to the share of Babu Rao and 4th defendant therein. Those properties are shown as ‘A’ schedule in the present suit. In the partition between Jagannadham and Babu Rao, 766 square yards of house site with a terrace building therein in PunadipaduPunadinadu VillageVillage isis one of the items that fell to the share of Babu Rao apart from the landed properties. The 1st defendant herein field O.S. No.517 of 1997 on the file of the Court of I Additional Senior Civil Judge, Vijayawada, against his father-Babu Rao and also against the plaintiff and the defendant herein for partition of the properties that fell to the share of Babu Rao in the partition between Jagannadham and Babu Rao. The plaintiff and the 2"^ defendant herein were added in that suit because Babu Rao conveyed some of his landed properties to the plaintiff and the 2^'1 defendant under different documents. The pt defendant i is a habitual litigant and tries to grab as much property as possible. Babu Rao and his wife were living separately in the erstwhile joint family building. Babu Rao was very affectionate to his grand daughters, the plaintiff and the 2'^^ defendant herein. So, Babu Rao executed a

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registered Will dt. 12.04.1999 bequeathing all his properties with equal rights to the plaintiff and the 2nd defendant.

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(b) The original of the Will was kept in his residential house. D.l is also residing in another portion of the same building. Babu Rao died on 20.09.1999. The original Will is in the custody of the mother of the 1st defendant. Due to subsequent differences cropped up between parents of the plaintiff, defendants 1 and 3, obviously with an intention to deprive the properties conveyed under the Will by Babu Rao, the defendants 1 and 3 joined hands. The 1st defendant saw the original Will and has knowledge of the contents of the Will. The 1st defendant has no manner of right to continue in possession of the suit schedule properties. Hence, the suit was filed.

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The contention of the petitioner is that the proposed amendments are necessitated (i) in respect of proposed amendments No.l, 2, 3 in view of typographical errors and (ii) in respect of the boundaries shown in the plaint schedule property. because of the confusion created in view of improperly adopting the same kind narration of boundaries of the same properties in

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the earlier suit in O.S.No.63 of 1998 and that those mistakes are unmindfully done and not observed till date of filing of the petition and that if the same mistakes are continued, it creates problem at the time of execution of the decree, in case if the suit is decreed. It is also stated that no prejudice would be caused to the defendants nor would it cause advantage to the petitioner and that the nature of the suit also would not change.

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The petition was opposed by filing the counter of R.l/Dl stating that it is only to drag on the proceedings continuously for 18 years on one or the other ground and to harass R. 1. It is further contended that the petitioner did not make out any sufficient reason in support of the relief claimed.

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After hearing both parties, the trial Court dismissed the petition mainly on the grounds that the proposed amendments could cause prejudice to the other side as already the suit came to the fag-end since all the witnesses who were examined in the suit are to be recalled and the respondents have to file additional written statement, if the amendments are allowed. P.W.l filed affidavit in chief examination on 12.04.2007

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and cross-examination was completed on 13.07.2009. As such. since long time elapsed, the trial Court felt that it would cause prejudice to the other side in the event of allowing the amendments.

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Having been aggrieved by the order, the revision petition was filed. The learned counsel for the petitioner submitted that not only the proposed amendments 1 to 3, but the amendments sought in respect of the corrections to the boundary description of the plaint schedule items are also due to unintended errors. In this regard, he has compared the suit schedule boundaries with the boundaries in the schedule in O.S.No.63 of 1998. For example, the western boundary of item No.l, instead of taking steps ‘the land of Anamolu Lakshmi Vanajakshi’, it was recorded as ‘an extent of ac.1.32 cents out of Ac.3.75 cents allotted to D2 in R.S.No.63’. Similarly in respect of item No.2 with regard to the eastern boundary, instead of indicating as ‘M.B.R.V.Krishna Rao’, it is mentioned as ‘M.S.Krishna Rao’ and with regard to the Southern boundary. instead of indicating as ‘M.B.R.V.Krishna Rao and Mythraiye’, it was noted as ‘Do’ and further with regard to the western

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boundary also the name ‘Mythariye’ is to be incorporated instead of ‘Do’.

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With regard to both these items No.l and 2, he has referred the documents 2 to 4.

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Nextly, in respect of items No.3 and 4 similar corrections, as indicated in the proposed amendments, are explained with reference to the documents No.l and 2. 11. With regard to the proposed amendment with regard to the extent of site in schedule A property item No.5, it is contended that inadvertently the figure ‘1318.716’ was struck of and written as ‘551/716’ with black ink pen such inadvertent mistake is evident from the other part of the plaint which shows payment of court fee by indicating the extent of the property as ‘1318716’ square yards and therefore, the proposed amendment is not a development, but is only a correction. Therefore, he vehemently contended that all the proposed amendments are necessary and it is only by bald denial in the written statement, a plea was taken that the description of the boundaries of the properties is incorrect, but in fact the pt defendant knows the

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identity of the properties and the trial also went on having full knowledge of the properties in dispute. Therefore, he vehemently contended that the proposed amendments would not cause prejudice, nor would change the cause of action or the case.

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On the other hand, the learned counsel for the pt respondent vehemently opposed the petition submitting that the typographical errors in the name could have been sought before commencement of the trial and they are objected. Further he vehemently contended that changing all the boundaries of all the items of properties in A schedule would materially cause prejudice to the case of pt defendant and that the petitioner came at a belated stage after about 18 years of filing of the suit and therefore, without showing sufficient cause for not taking these pleas at the earliest time, she is precluded now for taking the pleas by proviso to Order VI, Rule 17 CPC.

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The learned counsel placed reliance on the decision of the Supreme Court in Life Insurance Corporation of India v.

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Sanjeev Builders Private Limited and anotheri wherein at

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1 AIR 2022 sc 4256

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para 70 has summarized all the principles generally applicable to

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the petitions under Order VI Rule 17 CPC as follows;

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"70. Our final conclusions may be summed up thus:

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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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(Hi) 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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(11) 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 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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(Hi) the prayer for amendment is maiafide, or

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(iv) by the amendment, the other side ioses 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 pinpointedly 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 for decision.

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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 De! 1797)"

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The learned counsel for the petitioner placed reliance

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on the decision of Supreme Court in Sampath Kumar V. Ayyakannu and another^ wherein it was held at para 9 :

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"9. Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment." 15. As can be seen from the general principles annunciated by the Supreme noted above, there is no absolute

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2 AIR 2002 SC 3369

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bar of permitting amendment to the pleadings after commencement of the trial and generally all the amendments which are necessary for determination of the real question in controversy are to be allowed provided it does not cause injustice or prejudice to the other side and also to avoid multiplicity of proceedings, provided it does not result in injustice to the other side. Even in respect of time barred claims, it was held that the delay in applying alone is not a ground to disallow the prayer where the delay is arguable and issue of limitation could be framed separately for decision. Of course, an amendment if sought before commencement of trail, the Court is liberal in its approach. whereas if the amendment is sought after commencement of the trial, the proviso to Order VI, Rule 7 CPC requires the petitioners to establish that inspite of due diligence made, the amendment could not be sought. The above general principles annunciated by the Supreme Court would also indicate that to deal with the prayer for amendment of the pleadings, the Court should avoid hyper technical approach and ordinarily liberal, especially where the inconvenience can be compensated by costs.

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In the present case. the first few amendments

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regarding the name of the party and the description of the defendant, they are merely typographical and not deliberate nor would they change the case or cause prejudice to the defendants, particularly the pt defendant.

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Insofar the amendments sought in respect of the extent of the property in item No.5 of A schedule is concerned, it IS very much clear as explained, that the figure is originally incorporated in the plaint, but for reasons not known now, the same was found struck off and another figure was incorporated. The court fee was also shown as per the original figure mentioned in the plaint. As such, though the extent of the claim exceeds, it would not otherwise change the nature of the case nor the defence.

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Insofar as the amendments sought in respect of the boundaries of the properties are concerned. they are well explained in the affidavit itself demonstrating the differences how they are caused, and since the defendant has an opportunity of cross-examining the plaintiff on all these aspects, no prejudice

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would be caused. That apart, it is necessary for proper adjudication of the lis in this case. Or else, it would cause technical stumbling blocks in the future proceedings. Moreover, it is brought to the notice of this Court that after the petitioner/plaintiff attained majority, offered herself as witness and she is yet to be cross-examined. Therefore, even if the amendments are allowed, since DI or the other defendants would have an opportunity of answering the amendments, no **- ** additional burden. or prejudice would be caused. As such. keeping all the principles noted above stated by the Supreme Court and in view of the reasons noted above, this court is of the view that it is a case fit to allow the amendments irrespective of the length of delay, however, since it would cause inconvenience to the contesting defendant/Dl, it is appropriate to impose some terms as to costs on the petitioner. The trial Court without examining the necessity to permit the amendments and proceed in the light of the principles set out by the Supreme Court, merely on the reasons noted above, dismissed the petition. probably keeping in view the delay occurred in conducting the trial and long pendency of the suit. As such, since it failed to

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merely on the reasons noted above, dismissed the petition, probably keeping in view the delay occurred in conducting the trial and long pendency of the suit. As such, since it failed to exercise the jurisdiction properly to meet the ends of justice, the order impugned in the revision needs interference.

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In the suit, the Civil Revision Petition is allowed and the order dated 05.01.2022 in LA. No.40 of 2021 in O.S. No.279 of 2003 on the file of the Court of IV Additional Senior Civil Judge, Vijayawada, is set aside and I.A.No.40 of 2021 is allowed on the condition that the petitioner shall pay to the 1st respondent Rs. 10,000/- (Rupees ten thousand only) within 15 days from the date of receipt of copy of this order and file proof thereof before the trial Court, failing which the revision petition stands dismissed without any further order of this Court.

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Pending miscellaneous applications, if any, shall stand closed.

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SD/- B CHITTI JOSEPH ASSISTANT! REGISTRAR //TRUE COPY// SECTION OFFICER

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To, 1. The Court of IV Additional Senior Civil Judge, Vijayawada, Krishna District 2. One CC to Sri. Venkateswarlu Kolla, Advocate [OPUC] 3. One CC to Sri. T Raghu Prasad, Advocate [OPUC] 4. The Section Officer, V.R Section, High Court of Andhra Pradesh at Amaravati. 5. Three CD Copies SGR vna

HIGH COURT

DATED:15/09/2023

ORDER

CRP.No.406 of 2022

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5 2 3 NOV 2023
. Current Section .

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