Allowed

Shaik Mohammad Sab v. Bysani Subrahmanhyam

Telangana HC20 Jun 2013CRP/5281/2011

Case brief

AI extract

What is this about?

CRR allowed challenging dismissal of IA to amend plaint for specific performance. High Court reversed trial court, holding amendment just and reasonable due to petitioner's illiteracy where pleadings were drafted by counsel. Costs awarded.

What did the court decide?

Application to amend plaint allowed upon payment of costs of Rs.2000 to petitioner to the trial court. Respondent permitted to file additional written statement.

Shaik Mohammad Sab Vs Bysani Subrahmanhyam — Property and Title | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR

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C.R.P. No. 5281 of 2011

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Order:

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This CRP is filed challenging the orders dated 23.08.2011 passed in I.A. No.209 of 2011 in OS No.10 of 2008 by the Junior Civil Judge, Koilkuntla, Kurnool District.

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The petitioner herein is the plaintiff in the suit. He filed the suit against the respondent herein for specific performance basing on an agreement of sale said to have been executed by the respondent on 26.01.2007. After commencement of trial, the petitioner herein filed IA No.209 of 2011 praying to permit him to amend the pleadings to the effect that the father of the respondent namely late Bysani Chinna Pullaiah executed an agreement of sale dated 28.12.2006 agreeing to sell Ac.0-10 cents of land in ‘Turuka Chenu’ for Rs.20,000/- and that the said land is measuring 35 yards length and 7 yards width and it is nearer to Electricity Department. His further case is that after the death of the father of the respondent when he approached the respondent, the respondent asked him to bring the original agreement of sale executed by his father and torn the same into pieces. When the petitioner resisted the respondent executed another agreement of sale dated 26.01.2007 agreeing to sell 0-08 cents of land in Turuka Chenu for Rs.48,000/- and took advance of Rs.42,000/-. Now the petitioner wants to amend the plaint with regard to the agreement of sale said to have been executed by the father of the respondent and the fact that the respondent had torn away the original agreement of sale.

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The respondents resisted the contention of the petitioner contending that the petitioner never whispered about the agreement of

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sale said to have been executed by his father.

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The trial Court dismissed the said application mainly on the ground that the petitioner herein has not whispered about the same in his chief affidavit and that he had not exercised due diligence.

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Learned counsel for the petitioner submits that the petitioner is an innocent and illiterate and that only after changing the advocate he could learnt that his original plea was not mentioned in his pleadings and in the above circumstances, he was forced to file this application.

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Sri B. Parameswara Rao, learned counsel for the respondent, submits that if at all the version of the petitioner is true he would have lodged a complaint and no police complaint is lodged and that for the first time the petitioner is coming with a new version.

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In reply, learned counsel for the revision petitioner submitted that since the respondent agreed to execute another agreement of sale the petitioner did not lodge a police complaint, but subsequently the petitioner came to know that now the site proposed to be sold by the respondent is far away from the original site agreed to be sold by the father of the respondent.

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The only point that arises for consideration is whether the petitioner could be permitted to amend the plaint?

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After commencement of trial, normally the party cannot be permitted to amend the pleadings. Of course, it is the discretion of the Court and the discretion has to be exercised judiciously. It appears that the respondent has not mentioned about the boundaries of the site of which he proposed to sell in the agreement of sale executed by him. Whereas the agreement of sale said to have been executed by the father of the respondent contains the boundaries. It appears that the petitioner is an illiterate. He has put only thumb impression on the vakalat. Though it appears that he was not diligent, but the fact

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remains that he is an illiterate. When illiterate clients approach the advocates they have to guide the parties properly. Having regard to the illiteracy of the petitioner it appears that it cannot be said that he was not diligent at the time of filing plaint or at the time of filing chief affidavit. Practically though the parties are responsible for the pleadings but in reality it is the advocates who draft the pleadings and even the affidavits. So the ground realities cannot be ignored.

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In the circumstances, since the trial has commenced, I consider it just and reasonable to allow the application on payment of costs of Rs.2000/- i.e., Rs.1000/- to other side and Rs.1,000/- to the Mandal Legal Services Authority, Koilkuntla, Kurnool District within two weeks from today. On payment of such costs, the CRP stands allowed. Consequently IA No.209 of 2011 filed by the petitioner stands allowed. However, it is left open to the respondent to file additional written statement and contest the matter. No costs.

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Consequently, the miscellaneous petitions, if any, pending in this CRP shall stand closed.

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______________________ B. CHANDRA KUMAR, J.

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Date: 18.10.2014 Nsr

Shaik Mohammad Sab v. Bysani Subrahmanhyam

Case brief

What is this about?

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Shaik Mohammad Sab v. Bysani Subrahmanhyam

Case brief

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