The High Court dismissed a civil revision petition challenging the rejection of an application to amend a written statement to introduce an oral gift plea, holding the amendment would change the suit's nature without justification.
Civil Revision Petition dismissed; no order as to costs; miscellaneous petitions dismissed.
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HONOURABLE SRI JUSTICE CHALLA KODANDA RAM
CIVIL REVISION PETITION No.4081 OF 2014
O R D E R:
This Civil Revision Petition is filed against the order dated 25.08.2014 in I.A.No.849 of 2013 in O.S.No.374 of 2008, wherein and whereby the learned Principal Junior Civil Judge, Nizamabad, dismissed the application filed under Order VI Rule 17 of Code of Civil Procedure (in short “CPC”), seeking amendment of the Written Statement by inserting the following para as para No.14 of the Written Statement:
“That the husband of the defendant Syed Wasif had been suffering Ashtma and other health problems and he has not good terms with the plaintiffs and he is affectionate towards his wife due to his ill-health he worried about the defendant and her future after his death hence he decided to give suit schedule property to the defendant, hence he called his friend and his brother-in-law byname Mohd.Khaleel and Mohd. Aleemuddin R/o Bodhan Dist. Nizamabad and expressed his willingness to give the suit schedule property in favour of the defendant. On 16.08.2007 he orally gifted the suit schedule lands in Sy.No.171/A extent of 20.5 gts., Sy.No.172/a extent of 11.5 gts., sy.No.172/A extent of 9.0 gts., Sy.No.170 extent of 0.34 gts., Sy.No.167/AAP1 extent of 0.30 gts total extent of 105 gts at Binola Village Navipeth Mandal Dist. Nizamabad to the defendant and the defendant accepted the oral gift and the husband of the defendant handed over the original title deeds i.e., pattadar pass book and title pass book to the defendant in the presence of above witnesses. Thus the defendant became absolute owner of the property. The husband of the defendant gave several
properties to the plaintiff No.3 and 4 inspite of it they harassed the husband of the defendant, the suit schedule property is orally gifted to this defendant hence the suit filed by the plaintiffs is not maintainable and it is liable for dismissal.”
2. I.A. No.849 of 2013 was resisted by the respondents and if the amendment is permitted the very nature of the defense taken earlier would change, which ultimately would also change the very complexion of the suit. Further, the amendment was also opposed on the ground that the trial has already commenced and chief affidavit of P.W.1 has already been filed, the same is coming up for cross-examination of P.W.1. Learned Judge having taken into consideration of these facts dismissed the application on the ground that the Court is unable to accept the contention that the plea as now sought to be raised could not have been raised earlier and there were no bonafidies in not raising the matter before commencement of the trial. Learned counsel Sri T. Sujan Kumar Reddy, passionately pleads for giving an opportunity to amend the Written Statement as the entire defense of the defendants depends on the said pleadings.
3. The Court below had taken a note of the provision under Order VI Rule 17 of CPC, in particular proviso to the provision under Order XVI Rule 17 of CPC. In the original Written Statement the plea of the defendant is that the suit property had devolved on her, whereas in the present amendment the plea is to the effect that the property has been gifted to her, thereby the property had become her exclusive property. If at this stage this amendment is allowed, the very nature of the suit would change and will make it necessary for the entire of the pleadings to be altered. In the
affidavit there was no reason stated why the plea as sought to be raised now could not have been raised earlier. It is not the case of the revision petitioner that the plea now that is being raised and sought to be raised through amendment was on discovery of any new material or fact which was not available to the revision petitioner at the time of filing of the original Written Statement. For whatever reason a plea has been taken in the original Written Statement, which was in the year 2009, and at this point of time there being no compelling reasons which were brought on record for allowing the petition. In this context the Judgment of the Supreme Court in J. Samuel and others Vs. Gattu Mahesh and other s[1] may be noticed, wherein their Lordships have held that the amendment should be allowed after commencement of the trial only if the court comes to a conclusion that in spite of due diligence exercised by the parties the proper pleading could not be made. In the facts of this case, there is no such pleading and there is no material to support which would enable this Court to allow the amendment. The order of the Court below does not suffer from any error.
----------------------------------CHALLA KODANDA RAM, J
Dated:21.11.2014. Ssv
[1] (2012) 2 SCC 300
2 issues framed by the court
Whether to allow amendment of written statement altering the nature of defense after commencement of trial.
Whether the lack of discovery of new facts justifies late amendment under Order VI Rule 17 CPC.
Colour shows how this judgement treated each authority
J. Samuel and others Vs. Gattu Mahesh and otherReferred¶9
(2012) 2 SCC 300 · Who else cites this
2 provisions across 1 enactments
Challa Kodanda Ram
Sri T. Sujan Kumar Reddy
Challa Kodanda Ram
As recorded by the court registry
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