N Mallikarjuna Vs N Nagesh

This petition is filed under section 115 CPC against the order dated 14.10.2024 dismissing I.A.No.112 of 2024 in I.A.No.56 of 2023 in A.S.No.42 of 2007 on the file of the Court of II-Additional District Judge, Kurnool at Adoni.

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The facts pleaded in the petition in I.A.No.112 of 2024 are briefly as follows:

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(a) The petitioners filed appeal in A.S.No.42 of 2007 against judgment and decree in a suit for partition in O.S.No.36 of 1991 passed by the Court of Senior Civil Judge, Adoni. Pending the appeal, they filed I.A.Nos.485 of 2017 and 487 of 2017 to add tenants as respondents No.67 to 70 in the appeal and as defendants No.81 to 84 in the suit. Subsequently, as the 5^th respondent died on 09.03.2018, they filed I.A.s No.56 of 2023 and 57 of 2023 to add the legal representatives as respondents No.71 to 73 in the appeal and defendants No.85 to 87 in the suit. While so, one of the proposed respondents / defendants ie., the respondent No.6 died on 27.01.2023. Therefore, petitions in I.A.Nos.256 of 2023 and 257 of 2023 were filed by the appellants to add legal representatives of the said respondent as respondents No.74 to 77 in the appeal and as defendants No.88 to 91 in the suit.

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(b) Before numbering the applications to add the legal representatives, the petitions in I.As No.485 of 2017 and 487 of 2017 were not pressed by the petitioners. As such, the legal representatives of the respondent No.5 shall be described as the respondents No.67 to 69 in the appeal and as defendants No.81 to 83 in the suit and likewise, the legal representatives of the 6^th respondent shall be described as the respondents No.70 to 73 in the appeal and as defendants No.84 to 87 in the suit.

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(c) In view of the said discrepancy, the petitioners could not carry out the amendments in pursuance of the orders in I.As.No.56 of 2023, 57 of 2023, 256 of 2023 and 257 of 2023. But, there is no deliberate negligence. In view of the above circumstances, the petitioners filed I.A.No.112 of 2024 to amend the affidavit and

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petition in I.A.No.56 of 2023 to make the above necessary amendments.

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The 1^st respondent filed counter opposing the petition and the other respondents failed to file counter. In the counter, it is mainly averred that the petition is not maintainable in law or on facts and that the amendment of the petition does not arise after allowing the petition directing the petitioners to carry out the amendment which the petitioners failed even after extending the initial period of 14 days legally permissible to carry out the amendments. It is further mentioned that on 09.01.2024, since the amendments were not carried out and neat copy of the proceedings were not filed within time as per law, the matter was posted to call on 11.01.2024 to hear both parties to proceed further and therefore after lapse of nearly one year, the petition is devoid of merits.

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After hearing both the parties, the trial Court dismissed the petition holding that the amendment petition ought to have been filed during the pendency of I.A.No.56 of 2023 or otherwise the petitioners could have filed a separate petition setting forth the facts with a prayer seeking amendment to incorporate the correct serial numbers and such application ought to have been filed within 14 days from the date of allowing I.A.No.56 of 2023. It was further recorded that the petitioners did not file such petition within the above said time, and that there is no merit in the petition.

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Aggrieved by the order, this revision petition was filed.

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Heard the learned counsel for the petitioners.

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As can be seen from the sequence of events, it is clear that the appellate court ought to have stated the correct serial order of the respondents in its order in I.A.No. 56 of 2023 as by then, the petitions in I.As.No.485 of 2017 and 487 of 2017 were not pressed and the same is borne out on the record, irrespective of filing any separate application by the petitioners either to amend the affidavit and the petition or the order in I.A.No.56 of 2023, since the Court is empowered to direct the parties to make appropriate amendments necessary as on the date of passing of the order in I.A.No.56 of 2023 and the Court is not bound to follow the same serial order of the number mentioned in the petition due to change of circumstances. Even after passing the order in I.A.No.56 of 2023, when the Court came to know, even through this application, about the correct serial order to be mentioned, it could have suo moto amended the order suitably by exercising its inherent jurisdiction even by a separate order or in the same petition, instead of finding fault with the petitioners for not filing the petition earlier or by dismissing the petition, as the provision of law stated or the relief claimed does not confine the authority of Court in passing appropriate orders. It is a purely technical and procedural issue and does not in any way prejudice the interest of any other party.

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Accordingly, civil revision petition is allowed setting aside the order dated 14.10.2024 dismissing I.A.No.112 of 2024 in I.A.No.56 of 2023 in A.S.No.42 of 2007 on the file of the Court of II-Additional

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District Judge, Kurnool at Adoni and directing the appellate Court to permit the petitioners to carry out the amendments permitted to add the respondents in continuation of the serial order of the respondents now on record.

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There shall be no orders as to costs.

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As a sequel thereto, the miscellaneous petitions, if any, pending in this civil revision petition shall stand closed.

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_____________________ B.S.BHANUMATHI, J

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Date:06.05.2025 GRL

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