Allowed

Parsi Shashank v. T.Linga Reddy

Telangana HC10 Feb 2023CRP/2172/2022

Case brief

AI extract

What is this about?

The revision petitioner challenged a trial court order upholding an amendment to a plaint for specific performance. The High Court held that the plaintiff filed an earlier suit for recovery and thus cannot initiate a separate suit on the same cause of action. Consequently, the amendment was deemed mala fide as it violated Order 2 Rule 2 CPC.

What did the court decide?

The order allowing the amendment by the trial court in IA No. 1486 of 2021 in OS No. 111 of 2021 was set aside.

Parsi Shashank Vs T.Linga Reddy — Contract and Commercial Disputes | Telangana HC (2023)

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[³²⁰⁸ ]

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY,THE TENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE P.SREE SUDHA

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CIV!L REVISION PETITION NO:2172 OF 2022

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Petition under Article 221 of the Constitution of lndia, againsUaggrieved by the Order dated OS\O1t2O22, in 1A.No.1486/2021 in O.S. NO.111t2O21in the Court of the prt. Jr. Civil Judge at Nizamabad.

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Between:

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Parsi Shashank, S/o L,axman Rao, aged 42 years, Occ_ Business, Rl/o H.No. 5-6-114, Saraswai-hinagar,'Nizamabad at present at Ashi Reddy Apartment, Flat NoI101, 1st Floor, Beside Jeeva Danam Hospital, Nizamsagar Road, Kamareddy.

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...PETITION ER/RESPONDENT/DEFENDANT

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AND

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T.Ling.a B"d!y,S/o Matta Reddy, aged 57 years, OccPathologist Fl/o H. No. 5-7 -7 1, K-ha lelelwadi, N iza mabad.

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H.NRaju, S/o Babu Rao, aged 56 years. Occ- Business, R/o Flat No. 401, Parvathi Apartmdnt, Khaleelwadi, Nizamabad

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...RESPONDENTS/PETITIONERS/PLAINT!FFS

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lA NO: 1OF 2022

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all

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further proceedings in OS No. 11 1 oI 2021 on the file of Principal Junior Civil Judge, Nizamabad pending disposal of the above CRP

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Counsel for the Petitioner: SRl. V. ROHITH Counsel for the Respondents No.1: pAlDl KRISHNA REDDY Counsel for the Respondents No.2: None Appeared

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The Court made the following: ORDER

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TIIE IIONOURABLE SMT. JUSTICE P.SREE SUDHA

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CIVIL REVISION PETITI ON No. 2L72 of 2022

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ORDER:

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This Civil Revision Petition is hled against the Order of the trial Court in I.A.No.1486 of 2O2l in O.S.No. 11l of 2O2l dated 05.o1.2022.

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Plaintiffs in O.S.No.1 ll of 2O2l filed an application in I.A. No. 1 486 of 2O2l for amendment of the pleadings of the plaint. In fact, they hled suit for specihc performance of agreement of sale. One of the amendments is regarding the typographical error in the date. It was mentioned as 10.04_2007 instead of lO.O7.2OO7 and apart from that they also sought for another amendment in the relief portion and also in the cause ol action, but the trial Court observed that they tailed to mention cause of action due to oversight and allowed the amendment application. Aggrieved by the same, respondent in the said petition preferred the present Civil Revision Petition.

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The appellant mainly contended that initiatty a suit in O.S.No. 10 of 2OO9 rvas filed for recovery ot Rs.24,54,521 /- witLL costs and future interest@ 36yo basing on the agreement of sale

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)

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ciateci 04.0 i..2OO7 executeci by him irr iavt,Lir of petitionr:rs/ p aintiffs for purchasing the p^-ope:ty in Sy. No.3222 /i .,\ measuring an cxtent of Acs.2 - 05 6:ts^r;ituated at Nizamaba( ernd also filed i.A.i'io.2176 o[ 2t)O9 lt,r' ad<iing the rclief to canc, :l lhe sale agreement and the same wirs all,rwed by the trial Cou r- Tl-re said sui[ u,as filed against three persons on the grouncl^I [-Lat they oflercd to sell Ac.O 35^{g t} s of land @ 20,5 i,000/ l:,er^{acrc inS-v.No.3222/AA basir.S onthc} agrecmcnt o :;ale datcd 04.O7 .2OO7 arld the JtLrl 3mr:nt and l-^---,,.-,..,-rA.l ^r^{(\l(\A ')tt14} ,'6b'" Aocrrierred ' l-r' fhe same defendant in the suit filed A.S.No.449 of 2014, in rrhich interim s[ay [,as grar rrrrd on 14.lO.2Ol4 with a condition tr>^,:lep:sit half of the decree -ir[ a.mount^{withrn a period of sixwee iir;. V/hen he} ^^,,lA,-.-+ ^^, ,,,:!'-, the ..rid Or-dlr- nlaintiffs ha,re file t. tr P,No..38 of 2Ol4 for e x€cr-rtion of the decree dated O4.04.2I i4, as such he raiscd fur r1s and complied the decree by clepositirrg^1.he total decreetal an ounL on O4.ll.2O2O, and thus the r,rppeal was dismissed as r,r'ithdrar.t'n by Ordcr dated 26.03.2021 .

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A cla rn petition r'r,as liled in tr.A.No.S ol i',O1,7 rn E.P.No.ll8 o 2Ltl4 and also filed tr.A.No.52 cl 2t) 19 for cornmission l,o demarcatc thc land/propcrtv, t,ut it was disnLissed . r t9.06.20 19. Against u,hich th:1' prefcrrcd

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C.R.P.No- 1266 & 1267 of 2021 before this Court and the same were also dismissed for non-prosecution by Order dated 23.04.2021. Plaintiffs falsely claim that possession was handed over to him basing on the agreement of sale, but they never pleaded the said fact in the earlier proceedings. Instead of withdrawing the amount, they hled another suit for specific performance ol t.he agreement of sale dated 04.OZ.2OO7 and in the said suit they filed I.A for amendment of the pleadings and the same was allowed by the trial Court without considering his contentions. Thcy filed O.S.No. 1O of 2OO9 selectively for the purpose o[ cancellation of agreement of sale and for recovery of amount in pursuance of the agreement of sale d,ated 04.OZ.2OOT without taking a plea of specific performance of contract. Therefore, the observation of the trial Court that there is no prejudice would be caused to the defendant is not proper and the present suit itself is hit by Order 2 rule 2 of C.P.C.

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The main pleadings in the earlier suit and the present suit are totally inconsistent. They never pleaded in O.S.No. 1O of 2OO9 that they are in possession of the suit schedule property, but now they are trying to introduce new theory of possession by way of proposed amendment and the said handing over the possession was not reflected in the said agreement of sale. They

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have not st r,t:ci regarcitng posscssion cirht r irr^{il,.S.i'ir.r.} i0 oi 2OO9 or rn t-rc amendment plaint or in E.P.No.38 r:f 2C14 and filed the pre ;ent suit for specific pe rformance u'i -i a malafide intentior-r. T r,: trial Court withr>ut zrpprecirttitrg rt I the facts a[]ou,ed the z;rnendment application and it is liatrie t,t be set aside.

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Plainti 's stated thaL orr I I.O3.2008 dcfend rr:t^interfcrcd u,ith therr ;xrssession, as sur:h the!' arc ir cotrtinuous

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Heard arguments o[ botl-r sides and^peruse r: tLLe^entire record

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The re rision petitior-rer rcltcd upott Lhe citatirlrL^{rcported in} 2014(1) AL | (SC) 25 and :rrgr:cd lhztt initially^{;laint.iffsfiled} suit onll' fo rccovery of amount and lor cancelir,.tior of^the agreement o sale by giving up rcliel of spccific^{perfirrrrance,} as such tlre su it- hled by them at later^point o[ tinLr: for spccific perfornrance rrl agi:ccmcnt of salc is hit b5'Ctrdcr 2 rul,: 2 CPC. As per the C:'<ler' 2 rule 2 CPC. ur-tity of all <'Laims L;ased on the senle cause 1.f action shottld. b<: takert ur otte sutt arul it does not corten4tlate^,rrtitil of distirtct attd scparcItc cctuse o.f rtctitrt. If the

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)

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platntiff is entitled to seek reliefs agatnst ttrc defendant in respect of the same cause of action, the^plaintiff cannot^{split up the claim} so as to omit one part to the claim ond sue for^{the other.If the} cause of action is same, the plaintiff has^{to placeall his claims} before the Court in one suit,^{as Order'2 rule 2 CPC is basedon} the cardinal pinciple that defendant should^{not be uexed tuice} for^{the samecause.}

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g. The learned Counsel for the revision^{petitioner also relied} upon the decision of the Hon'ble Supreme^{Court in the caseof} Reaajeetu Builders and^{DeuelopersVs. Naraganasuamg} and Sons and othersl, in which^{guidelineswhile dealing with} applications for amendmen[s^{weregiven as follows:}

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"i) Whether the amendment^{sought isimperatiue} for proper and effectiue odjudication of^{tLrc case.}

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ii) Whether the application for^{amendmentis bonaftde or} malafide.

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iii) The amendment should^{not cause such prejudiceto} tte other side uhich^{cannotbe compensated adequotelg} in terms of money.

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iu) Refusing amendment^utouldin fact^{leadto injustiuz or} lead to multiple litigation.

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u) Whether the proposed^{amendmentconstitutionallgor} fund-amentally^{changesthe nature and charocterof the} ca.se.

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ui) as a general n^{e, theCourt shoulddecline} amendments if^a fresh^{suit on the amended claimutould} be baned by limitation^{on the date of application."}

'^{(2oo9)ro scc84}

Now, i. is Ibr this Court to see that the appLc.r,tion for amendrnent s a bonahde or not.

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1 1 . h-r thir case the revision petitioner r.or.r ter r,l :d that initially suit rvas filed for recovery of amount i;nd the amount. was rtlso deposited, as such anothr:r strit iilerl by Lhem for spr r-:ific performance of agreement o[ sir.r is not maintainable .ancl is hit by Ordcr 2 rule 2 C. p.Ct, l:: t ir the ., ceirl crrit rha ) f:1.,1 r ^ ii^jL. .ii(..u i.ri ioi amcndnient and i ir. iin,,- idiiqiit sought by thr m at la[er point of time is not a botrafirl: and it cause s preju:lice to him and eflects his rights v.: ich are already accn r,r<1 to him. Therefore, this Court fincls, that the Or-der of fhe^.'rrl r/-nrrrt ic .-.-r :^ i:^r-r.Llrurru_/LiS .iiili iS riiiaiiit i(. Ut Set aside.

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In the i::sult, the Civil Revision petition is:rilc,u,e(l by setting aside t-he Order o[ the trial Court in l.A.No ]4g5 of 2027 in O.S.t ,: I 17 of 2O2t daLed. OS.OL.2022

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Miscellr neous petitions pending, if any, s ral stand

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closed.

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Sd,. G.SIREESHA ASS! STA].I'I' REG!STRAR

//TRUE COPY//

SECTIOI*l OFFICER

To,

The Prl. J'. Civil Judge at Nizamabad. 2. One CC t,r tV/s. V. ROHITH, Advocate [OPl.J()] 3. One CC t,; lV/s. PAIDI KRISHNA REDDY, A;,,'ocate loPUCl 4. Two CD cc,pies .\ \ /

HIGH COUTIT

DATED:10111212023

ORDER

CRP.No.21','2 of 2022

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ALLOWING THE CIVIL REVISION PETI-TION WITHOUT^(:OSTS

Parsi Shashank v. T.Linga Reddy

Case brief

What is this about?

What did the court decide?

Parsi Shashank v. T.Linga Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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