Dismissed

Smt. Sujatha Krishna Kumar v. Special Court-I Under Ap Land Grabbing (Prohibition) Act

Telangana HC5 Mar 2014WP/1819/2014

Case brief

AI extract

What is this about?

This Division Bench dismissed a writ petition seeking a writ of certiorari to quash the order of a Special Court rejecting an amendment to the petitioners' counter in a land grabbing case. The court held there was no grave error of law apparent on the face of the record and no justification for permitting a belated amendment that would prejudice the respondents.

What did the court decide?

Writ petition dismissed; order of Special Court refusing amendment upheld. No costs.

Smt. Sujatha Krishna Kumar Vs Special… — Civil Procedure and Limitation | Telangana HC (2014)

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

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AND

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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WRIT PETITION No.1819 OF 2014

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Date: 05-03-2014

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Between: Smt. Sujatha Krishna Kumar and another. - - - Petitioners.

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And

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Special Court-I under A.P. Land Grabbing (Prohibition) Act, Represented by its Registrar, II Floor, B.R.K.R. Building, Tankbund Road, Hyderabad and three others. - - - Respondents.

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This Court made the following :

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA

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AND

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HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION No.1819 OF 2014

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ORDER: (Per Hon’ble Sri Justice M. Satyanarayana Murthy)

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Respondents in Land Grabbing Case No.37 of 2009, petitioners in I.A. No.357 of 2013 in L.G.C. No.37 of 2009, on the file of Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, filed this petition under Article 226 of the Constitution of India, seeking a direction in the nature of writ of Certiorari and set-aside the order dated 27.11.2013, passed in I.A. No.357 of 2013 in L.G.C. No.37 of 2009, as it is illegal, arbitrary and against the law and thereby permit the petitioners to amend the counter filed in L.G.C. No.37 of 2009.

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2. The petitioners herein were the petitioners and the respondents 2 to 4 were the respondents 1 to 3 in I.A. No.357 of 2013 in L.G.C. No.37 of 2009 before the Special Court. For the sake of convenience, the parties hereinafter will be referred to as arrayed before the Special Court.

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3. The petitioners herein filed a petition in I.A. No.357 of 2013 in L.G.C. No.37 of 2009 under Order 6 Rule 17 read with Section 151 of C.P.C. seeking to amend the counter raising several contentions regarding identity of the property and perfection of their title to the property by adverse possession. The proposed amendment consisting of Para 8 (i) to (v) runs into 4 pages raising several pleas in the counter alleging that they purchased the structures with a compound wall bearing H. No.30-94/12/13 of plot No.13, in Survey Nos.393 and 394 of Khanojiguda village, Alwal Municipality, Malkajgiri Mandal, from its

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lawful owner Golla Pochaiah under registered sale deed bearing document No.726/1997, dated 19.03.1997, and as such they are in possession and enjoyment of the property. The petitioners failed to take a specific plea of adverse possession in the counter filed by them in L.G.C. and contended that they are in peaceful possession and enjoyment of the property from the date of their purchase. In the absence of any specific plea of adverse possession, it is impermissible for the petitioners to adduce any evidence with regard to adverse possession, therefore, a necessary amendment is required to be made in the counter; the delay is only on account of ignorance, finally prayed to permit the petitioners to raise the specific plea of adverse possession amending their counter.

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4. The respondents 2 and 3 herein filed counter in I.A. No.357 of 2013 in L.G.C. No.37 of 2009 denying material allegations of the affidavit annexed to the petition and specifically contended that the proposed amendment shall not be allowed after commencement of trial, in view of the amended provisions of C.P.C. which came into force with effect from 01.07.2002 and the belated amendments cannot be allowed and that there are no compelling circumstances. It is further contended that the petitioners herein filed their counter on 01.06.2010 in the main L.G.C. raising several pleas and after completion of evidence, when the matter was posted for respondents evidence, the petitioners herein did not adduce any evidence and thereby their evidence was closed, but filed an Interlocutory Application seeking to reopen their evidence and the same was allowed. Therefore, the present attempt is to drag the matter for some more time, not otherwise, and the amendment cannot be allowed.

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5. After hearing argument of both the counsel, perusing the material available on record, the Special Court dismissed the petition declining to grant permission to amend the counter assigning its own reasons.

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6. The present Writ Petition is filed challenging the impugned order on various grounds, more particularly, on the ground that when the respondents herein, applicants before the Special Court filed L.G.C. No.37 of 2009, preliminary objection was raised by the petitioners herein under Section 8 (2A) of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (For short, ‘the Land Grabbing Act’), questioning the maintainability of L.G.C. No.37 of 2009 as the Special Court without deciding the I.A. No.595 of 2010 posted both the L.G.C. and Interlocutory Applications. In the meanwhile, respondents 2 and 3 herein commenced trial, got appointed a Commissioner to identify the schedule property in L.G.C., Commissioner submitted his report and the petitioners filed objections, but without deciding any objections the matter is being posted from time to time but the Special Court did not allow the petitioners to place true facts by amending their counter, without any lawful justification. Therefore, the impugned order under challenge is illegal and liable to be set-aside.

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7. Heard arguments of both the counsel at length. Learned counsel for the petitioners in support of his contentions placed reliance on a judgment of the Apex Court in Sushil Kumar Jain Vs. Manoj Kumar and anothe r^[1] contending that the principles for amending counter or written statement is totally different from the plaint or petition and when the petitioners intend to raise a new ground of defence or substituting or altering the defence, would not change the cause of action. Therefore, the Courts must be very liberal in amending the counter than the amendment of application and produce his additional ground of defence, finally prayed to allow the Writ Petition. The learned counsel further placed reliance on a judgment of the Apex

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Court in J. Samuel and others Vs. Gattu Mahesh and others^[2] .

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8. The learned counsel for the respondents contended that when

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the proposed amendment is belated one, it takes away the valuable right that accrued to the respondents, the proposed amendment can not be allowed and prayed for dismissal of the Writ Petition.

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9. This Court exercising jurisdiction under Article 226 cannot sit as a Court of appeal and the powers of this Court are limited in exercising jurisdiction under article 226 of the constitution of India. Normally, the Courts of judicial review would not interfere with the findings on fact, however grave they may be. It is only concerned with the grave error of law, which is apparent on the face of record and if the Special Court rejects the prayer without any basis or legal reasoning, this Court can interfere with such order passed by the Special Court. In catena of decisions, time and again, the Apex Court laid down the principles, more particularly, in Commissioner of Income Tax, Calcutta Vs. Karam Chand Thapar and brothers (Private) Limited^[3] and Surya Dev Rai Vs. Ram Chander Rai and others^[4] . A Division Bench of this Court in State of Andhra Pradesh Vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and others^[5] held as follows:

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“1) The High Court is not an appellate authority over the decision of the special tribunals. While exercising the power of judicial review, the High Court cannot be oblivious to the conceptual difference between appeal and review;

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2) The petition for a judicial review would lie only on grounds of grave errors of law apparent on the face of the record and not on the ground of error of fact, however grave it may appear to be;

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3) When the tribunal renders a decision after determining the facts, no application for judicial review could be maintainable only on the ground that it has committed an error of fact, however grave it may appear, unless it is shown that such a finding is based on no evidence and the error of fact itself can be regarded as error of law in the sense that admissible evidence was rejected and inadmissible evidence

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was relied on;

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4) The orders passed by the tribunal by exercising discretion cannot be interfered unless it is shown that exercise of discretion itself is perverse or illegal in the sense that the tribunal did not follow its earlier decision or binding authority to finding of facts and law as decided by the High Court or the Supreme Court, and

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5) When the tribunal disposes of an application by applying the binding precedents of the High Court as well as the Supreme Court, it cannot be said it has committed any error of law apparent on the face of the record; in such cases the limited review before the High Court would be whether the binding principle has been appropriately applied or not; or the tribunal's decision which is rendered in ignorance of the statutory law on which case it must be held to suffer an error apparent on the face of the record.”

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10. When the Special Court rendered a decision that jurisdiction of this Court under Article 226 is limited, this Court can interfere when there is a grave error of law in the order passed by the Special Court under A.P. Land Grabbing (Prohibition) Act.

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11. Petitioners herein except contending that the Special Court proceeded with the trial of the matter despite pendency of I.A. No.595 of 2010 under Section 8 (2A) of A.P. Land Grabbing (Prohibition) Act, questioned the very maintainability of L.G.C. No.37 of 2009 and appointing an Advocate Commissioner in L.G.C. for identification of the property etc., but the petitioners were not allowed to prove the real facts on record by amending counter filed by them. Therefore, no specific grave error of law or legal lacunae in the order passed by the Special Court was brought to the notice of this Court. If the principles laid down in the decisions cited supra, are applied to the present facts of the case, there is absolutely no ground to interfere with the impugned order of the Special Court, by exercising power of judicial review, under Article 226 of constitution of India.

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12. No doubt, L.G.C. was filed in the year 2009 and a special

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procedure is provided under the A.P. Land Grabbing (Prohibition) Act, even before registering the L.G.C. i.e., calling for report under Rule 6 (2) of the Rules framed under the A.P. Land Grabbing (Prohibition) Act i.e., known as verification report by the Revenue Authorities. When the Special Court satisfied that there is a prima-facie case of land grabbing, then the Special Court can register the same having satisfied with such prima-facie case as L.G.C. Failure to dispose of I.A. filed under Section 8 (2A) or appointing an Advocate Commissioner to identify the land are not at all the grounds to permit the petitioners to amend their counter. Therefore, whatever grounds urged in the affidavit, filed along with the petition, are not sufficient to permit the petitioners, but those allegations are only questioning the manner in which the first respondent-Special Court proceeded with the matter. Those grounds would not form the basis for grant of permission to amend the counter.

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13. The learned counsel for the petitioners while contending that the principles for amendment of plaint cannot be applied to the amendment of written statements by placing reliance on the judgment of Apex Court in Suhil Kumar Jain (1^st supra), wherein the Apex Court in Paragraphs 9 to 12 held that the amendment of plaint and amendment of written statement is not necessarily governed by exactly the same principles. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding alternatively substituting a new cause of action. In case of amendment of written statement, the Courts would be more liberal in allowing than that of a plaint as the question of prejudice would be far less in former than in latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement can also be allowed.

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14. Taking advantage of the principles laid down by the Apex Court

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in Sushil Kumar Jain (1^st supra), it is contended that the petitioners herein, respondents in L.G.C., are entitled to take any plea including the inconsistent plea and even the admissions, if any, made can be explained by the petitioners by amending their counter.

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15. He also placed reliance in another judgment of the Apex Court in J. Samuel and others (2^nd supra) and held as follows:

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“12. The primary aim of the Court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the Court so that the Court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court’s discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states that: no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

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16. If the principle laid down in the decision cited supra is applied to the present facts of the case, if the parties exercise due diligence in prosecuting the proceedings, the amendment can be allowed and this order of allowing or dismissing the petition is purely discretionary. To grant permission by exercising discretion to a party to amend the pleadings lies on two conditions, firstly, no injustice must be done to the other side and secondly the amendment must be necessary for the purpose of determining the real question in controversy between the parties.

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17. If the above principles are applied to the present facts of the case, the proposed plea of amendment which is running into 4 pages almost consisting of 1 paragraph with 5 sub-paragraphs is totally

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inconsistent with the pleas raised in the original counter it is almost substituting counter. Even otherwise, as per the principles laid down in Suhil Kumar Jain (1^st supra), inconsistent pleas can be allowed to be raised by amending the counter, if the Court satisfies that the petitioners prosecuted the proceedings with due diligence. I n J. Samuel and others (2^nd supra), in Paragraphs 12, the Hon’ble Apex Court clearly held that no application for amendment shall be allowed after trial has been commenced, unless the Courts came to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial.

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18. If the petitioners wants to take advantage of the principle, the petitioners have to establish that despite due diligence they could not raise such plea, but in the instant case on hand, there is absolutely no averment in the affidavit filed before the Special Court or even in the Writ Petition, except making a bald allegation. On the other hand, the conduct of the petitioners throughout, goes to show that they did not prosecute the proceedings diligently as the evidence of the applicants in L.G.C. was commenced long back, after filing counter by the petitioners herein, and their evidence was closed; apart from that, when the matter was posted for respondents evidence, the respondents did not adduce any evidence and allowed the Special Court to close their evidence, again filed an application for reopening, got their evidence reopened and then filed the present petition. Thus, it is clear from the facts, that the petitioners have not prosecuted proceedings diligently and protracted the proceedings on one ground or the other, without any reasonable cause.

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19. In normal course of events, for allowing amendment the Court has to take into consideration the following three points:

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1) Whether the proposed amendment would change the nature of proceedings;

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2) Whether the valuable right that accrued to the other side will be taken away on account of amendment;

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3) Whether the proposed amendment changes the original cause of action.

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20. In the instant case on hand, if the proposed amendment is allowed, at a belated stage, after commencement of the trial when the petitioners did not raise the plea earlier, certainly the proposed amendment would take away the valuable right that accrued to the respondents-applicants. Even otherwise, the proposed amendment is nothing but substituting the original counter as it is running into 4 pages in all.

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21. The respondents-applicants resisted the claim on the ground that there is abnormal delay in filing the petition before the Special Court for amendment of the pleadings and apart from that, when the trial is commenced, petitioners cannot be permitted to amend the counter by placing reliance on a judgment of the Apex Court in Mashyak Grihnirman Sahakari Sanstha Maryadit Vs. Usman Habib

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Dhuka and others^[6] , wherein it was held as follows at Para 8:

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“8. Indisputably, Respondent 1-plaintiff was the officebearer of the Society at the relevant time and by resolution taken by the Society the said plaintiff was authorized to complete the transaction. Hence, it is incorrect to allege that Respondent 1-plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the conveyance deed dated 08.02.1989, sometime in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14.10.2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order 6 Rule 17 CPC. There is no ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. The High Court committed serious error of law in setting aside the order passed by the trial Court whereby the amendment sought for

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was dismissed.”

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22. In the facts of the decision cited supra, the plaintiffs wanted to incorporate the term ‘to declare that the conveyance deed dated 08.02.1989 as illegal, mala-fide and bad in law’ and due to oversight and bona-fide mistake the relief could not be sought earlier and sought for permission to amend the plaint incorporating the above relief. The trial Court dismissed the petition on the ground that it is belated and that the petitioners were aware about execution of the documents earlier and allowed the developer to proceed with the construction but, at belated stage, filed the petition challenging the validity of the conveyance deed; against the said order, the matter was taken to High Court, High Court allowed the Revision setting aside the order of the trial Court, permitted the petitioner to amend the plaint. The order was challenged before the Apex Court, where the Apex Court, considering the material on record, held that delay is the ground to decline the relief and upheld the order of the trial Court while setting aside the impugned order passed by the High Court.

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23. In the instant case on hand, the petitioners claimed that they purchased the property from Golla Pochaiah under registered sale deed in the year 1997, whereas the L.G.C. was filed in 2009 by which time the 12 years period was not totally completed even to perfect their title by adverse possession, prima-facie. The dispute is with regard to identity of the property but that cannot be agitated in the petition filed under Order 6 Rule 17 of C.P.C. even otherwise, the proposed amendment is belated one for the reason that the petition is filed in the year 2013 after closure of the evidence of the petitioners herein, respondents before the L.G.C., once and after getting it reopened. The perfection of their right or title by adverse possession is within their knowledge by the date of filing counter before the Special Court in L.G.C. but no specific reason was assigned for their failure to raise such plea in the original counter. In the absence of any satisfactory

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and cogent reason for failure to raise such plea in the counter filed before the Special Court, it is difficult to allow the petitioners to amend the counter incorporating Para 8, Sub-paragraphs (i) to (iv).

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24. The similar question came up for consideration before a Division Bench of this Court in State of Andhra Pradesh (5^th supra), this Court discussed at length the powers available to this Court under Article 226 of the constitution of India and dismissed the writ petition holding that when no grave error apparent on the face of the record in the impugned order passed by the Special Court was found, there is no necessity to interfere with the well considered order. Here also the same principles can be applied to the present facts of the case. The Special Court passed a well reasoned order without giving any scope for finding any grave error apparent on the face of record. Even after going through the entire order under challenge, we find no grave error, apparent on the face of the record, calling for interference of this Court, exercising jurisdiction under Article 226 of the constitution of India. In such a case, we are afraid to exercise power under Article 226 to issue writ of certiorari setting-aside the impugned order and permit the petitioners, at belated stage, to amend the counter, which was filed before the Special Court, though they are aware of their right to perfection by adverse possession, by the date of filing their counter in the year 2010 in the main L.G.C. and the affidavit filed along with the petition is totally silent about the grave error committed by the Special Court, which is apparent on the face of the record. Hence, we find no grounds to interfere with the impugned order dated 27.11.2013, passed in I.A. No.357 of 2013 in L.G.C. No.37 of 2009 by the first respondent-Special Court-1, Hyderabad.

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In the result, the Writ Petition is dismissed, at the stage of admission. No order as to costs.

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In consequence, the Miscellaneous Petitions, if any, pending in

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this Writ Petition, shall stand dismissed.

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_____________________________ ASHUTOSH MOHUNTA, J

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_____________________________ M. SATYANARAYANA MURTHY, J Date: 05-03-2014. Dsh

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HON’BLE SRI JUSTICE ASHUTOSH MOHUNTA AND