Allowed

Gangumalla Shiva Reddy v. K.Durga Reddy [died]

Telangana HC5 Jul 2011CRP/6118/2010

Case brief

AI extract

What is this about?

This order allowed a civil revision petition seeking to set aside an appellate court order dismissing an application for amendment of pleadings. The court held that courts should be liberal in granting amendments to written statements under Order VI Rule 17 CPC unless serious injustice is caused, and the appellate court acted wrongly by deciding merits prematurely.

What did the court decide?

Petitioner permitted to amend written statement in O.S.No.32 of 2000 by incorporating paragraphs 15 to 18 upon payment of costs to the second respondent.

Gangumalla Shiva Reddy Vs K.Durga Reddy… — Civil Procedure and Limitation | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.6118 OF 2010

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DATED JULY, 2011

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BETWEEN

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Gangumalla Shiva Reddy …Petitioner And K.Durga Reddy and others. …Respondents

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THE HON’BLE SRI JUSTICE SANJAY KUMAR

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CIVIL REVISION PETITION NO.6118 OF 2010

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O R D E R

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O.S.No.32 of 2000, a suit for declaration of title, possession and permanent injunction along with cancellation of a registered sale deed and correction of revenue records was decreed by the learned Senior Civil Judge, Medak, by Judgment dated 11.07.2007. Aggrieved thereby, the second defendant in the suit filed A.S.No.27 of 2007 before the learned III Additional District and Sessions Judge (Fast Track Court) at Medak.

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He filed I.A.Nos.343 and 344 of 2009 therein seeking to raise additional grounds and adduce additional evidence in the appeal. The appellate Court posted I.A.No.344 of 2009, filed to receive additional documents, along with the main appeal and disposed of I.A.No.343 of 2009 leaving it open to the appellant to argue the additional grounds at the hearing of the main appeal along with I.A.No.344 of 2009.

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While so, the appellant filed I.A.No.56 of 2010 under Order VI Rule 17 read with Section 151 Code of Civil Procedure seeking to amend his written statement filed in the suit, O.S.No.32 of 2000, by incorporating paragraphs 15 to 18 therein. By order dated 22.12.2000, the appellate Court dismissed the said application. Hence, this Civil Revision Petition by the aggrieved appellant.

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Heard Sri J.Prabhakar, learned counsel for the petitioner, and Sri M.Bhushan Reddy, learned counsel for the second respondent/second plaintiff in the suit, on caveat.

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Pertinent to note, the paragraphs now sought to be introduced

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in the written statement by way of amendment are in keeping and in consonance with the additional grounds sought to be urged by the appellant on the basis of the additional documentary evidence that he seeks to introduce vide I.A.No.344 of 2009. As pointed out by the appellate Court itself in its order dated 13.03.2009 in I.A.No.343 of 2009 in A.S.No.27 of 2007, these aspects would have to be considered at the time of the hearing of the main appeal. However, if the additional grounds, based on the additional documentary evidence, sought to be urged by the appellant do not find reflection in his pleadings, it would be counter productive for him at that stage. His plea for amendment of his pleadings therefore warranted consideration.

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As pointed out by the Supreme Court in BALDEV SINGH V/s. MANOHAR SINGH^[1] , Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. Further, as pointed out by the Supreme Court in the aforestated decision, Courts are inclined to be more liberal in allowing amendment of the written statement than of the plaint and the question of prejudice is less likely to operate with the same rigour in the former than in the latter case. The Court further held that even inconsistent pleas can be raised by the defendants which have the effect of altering the defence.

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In the present case, the written statement filed by the appellant in the suit, O.S.No.32 of 2000, in fact reflects that he had taken the plea that he would take steps for cancellation of the Judgment and Decree in O.S.No.46 of 1998. The attempt on his part in amending the written statement is in furtherance of this intention. Reference in the paragraphs sought to be introduced is to the documents which are the subject matter of I.A.No.344 of 2009. Pleadings in respect of his challenge to the Judgment and Decree in O.S.No.46 of 1998 were also advanced. It is no doubt true that the appellant is claiming under the third respondent herein who was a party to O.S.No.46 of 1998.

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Therefore, the question as to whether he can maintain a challenge to the Judgment and Decree therein at this stage and if so, the merits of such challenge, would have to be gone into by the appellate Court at the appropriate time. However, shutting out the appellant at the preliminary stage having posted the connected I.A. along with the main appeal is not the proper course to be adopted by the appellate Court.

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Further, perusal of the order under challenge reflects that the appellate Court refused the amendment sought by going into the merits of such amendment. As pointed out by the Supreme Court in ANDHRA BANK V/s. ABN AMRO BANK N.V .^[2] , the Court while dealing with an application for amendment would not be entitled to go into the merits of such amendment. It can only consider whether such amendment would be necessary for decision of the real controversy between the parties concerned. It is to be noted that the appellant could have resorted to filing an independent suit for a declaration that the Judgment and Decree in O.S.No.46 of 1998 was obtained by means of fraud and was not binding on him. That being so, as the amendment sought merely facilitated the appellate Court to undertake an enquiry at the appropriate stage as to whether the additional grounds and the additional documents filed in support thereof warranted consideration and aided comprehensive adjudication of the lis, thereby cutting down on multiplicity of proceedings, the appellate Court ought not to have dismissed the application. The Court below had wide discretion to deal with the application in such manner and on such terms which appeared to it to be just and proper and could have compensated the opposite party by costs.

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The Civil Revision Petition is accordingly allowed setting aside the order dated 22.12.2010 passed by the learned III Additional District and Sessions Judge (Fast Track Court), Medak, in I.A.No.56 of 2010 in A.S.No.27 of 2007 and permitting the petitioner herein to amend the written statement filed by him in O.S.No.32 of 2000 by incorporating paragraphs 15 to 18 therein as reflected in the petition, upon payment

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of costs of Rs.2,000/- (Rupees two thousand) to the second respondent.

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SANJAY KUMAR, J.

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_________ JULY, 2011. PGS

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[1] (2006) 6 SCC 498

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[2] (2007) 6 SCC 167

Gangumalla Shiva Reddy v. K.Durga Reddy [died]

Case brief

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Gangumalla Shiva Reddy v. K.Durga Reddy [died]

Case brief

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