whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into suit for declaration of title and recovery of possession." In paragraph 7, the Supreme Court held as under: "In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings."


THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY            

CIVIL REVISION PETITION No.1773 of 2012  

01-11-2012

Chinnapareddy Subba Reddy  

Chinnapareddy Srinu and 2 others

Counsel for Petitioner:  Mrs. Nimmagadda Revathi for Mr. Nimmagadda
Satyanarayana.
Counsel for Respondents: Mrs. B.Prasanthi for Mr. Kotireddy Idamakanti.
                               
<GIST:

>HEAD NOTE:  

? CITATIONS:

AIR 2002 SC 3369

ORDER:

        This Civil Revision Petition is filed against order dated 05.03.2012 in
I.A.No.687 of 2011 in O.S.No.92 of 2009 on the file of the learned Senior Civil
Judge, Darsi.

        The petitioner filed the above-mentioned suit for permanent injunction
restraining the respondents from interfering with his possession of the suit
schedule property. He also filed I.A.No.419 of 2009 seeking temporary
injunction. After enquiry, the said I.A. was dismissed by the lower Court by
holding that the petitioner was not in possession and enjoyment of the suit
schedule property. Thereafter, the petitioner filed I.A.No.687 of 2011 under
Order VI Rule 17 of C.P.C., seeking amendment of the plaint by adding the
alternative relief of recovery of possession. This application was dismissed by
the lower Court, by its order dated 05.03.2012, on the ground that as the
petitioner has been all through pleading that he was in possession of the
property, the application for amendment, if allowed, will change the nature and
character of the suit. Feeling aggrieved by the said order, the plaintiff filed
this Revision Petition.

        At the hearing, Mrs. Nimmagadda Revathi, learned counsel for the
petitioner, submitted that the Court below has committed a serious
jurisdictional error in dismissing the petitioner's application on a totally
misconceived premise that the application for amendment in a suit for permanent
injunction claiming alternative relief of possession is not maintainable. In
support of her submission, she has placed reliance on the judgment of the
Supreme Court in Sampath Kumar v. Ayyakannu and another1.  

        Opposing the above submission, Mrs. B. Prasanthi, learned counsel
representing Mr. Idamakanti Kotireddy, learned counsel for the respondents,
submitted that the proposed amendment comes into conflict with the original
pleadings of the petitioner and, therefore, the lower Court has rightly rejected
the petitioner's application for amendment.

        I have carefully considered the respective submissions of the learned
counsel for the parties and perused the record.

        While dismissing the application for amendment, the Court below has
observed that the amendment sought by the petitioner is contrary to his
pleadings and, therefore, such amendment is not permissible in law. In Sampath
Kumar (supra), the plaintiff initially filed the suit for permanent injunction
claiming that he was in possession of the suit schedule property. In the written
statement, the defendant denied the plaintiff's plea of possession on the date
of institution of the suit and had set up possession in himself. Before the
commencement of the trial, the plaintiff moved an application under Order VI
Rule 17 CPC for amendment of the plaint, wherein he has pleaded that during the
pendency of the suit, the defendant has forcibly dispossessed him. He has,
therefore, sought for amendment of the relief of declaration of title and
consequential relief of delivery of possession. The trial Court rejected the
said application for amendment and its order was confirmed by the High Court in
Revision. While granting leave against the said orders, the Supreme Court has
framed the following question:
"The short question arising for decision is whether it is permissible to convert
through amendment a suit merely for permanent prohibitory injunction into suit
for declaration of title and recovery of possession."

        In paragraph 7, the Supreme Court held as under:

"In our opinion, the basic structure of the suit is not altered by the proposed
amendment.  What is sought to be changed is the nature of relief sought for by
the plaintiff.  In the opinion of the trial Court it was open to the plaintiff
to file a fresh suit and that is one of the reasons which has prevailed with the
trial Court and with the High Court in refusing the prayer for amendment and
also in dismissing the plaintiff's revision.  We fail to understand, if it is
permissible for the plaintiff to file an independent suit, why the same relief
which could be prayed for in a new suit cannot be permitted to be incorporated
in the pending suit.  In the facts and circumstances of the present case,
allowing the amendment would curtail multiplicity of legal proceedings."

        In my opinion, the above-referred judgment of the Supreme Court applies in
all fours to the present case. Even though the petitioner has asserted in his
plaint that he was in possession of the property, obviously on account of the
prima facie finding rendered by the lower Court in the application for
injunction, he has sought for an alternative relief of recovery of possession.
There is no embargo on the petitioner claiming such an alternative plea.
Eventually, it is for him to establish whether he was in possession of the
property, failing which he has to establish his right for recovery of
possession.  As held by the Supreme Court in the above-mentioned judgment, by
dismissing the applications for amendment of this nature, the parties will be
driven to file a separate suit for recovery of possession and that would only
lead to multiplicity of proceedings. Unless the prayer sought to be made by way
of amendment is barred by law, the Courts shall make a liberal approach in
allowing the applications for amendment in order to avoid multiplicity of
proceedings. It is not the pleaded case of the respondents that the amendment is
barred by any law, such as the law of Limitation, or that any right vested in
the respondents will be taken away by allowing such amendment.

For the above-mentioned reasons, I am of the opinion that the lower Court has
committed a serious jurisdictional error in rejecting the petitioner's
application for amendment. The order of the lower Court is, accordingly, set
aside and I.A.No.687 of 2011 is allowed.

The Civil Revision Petition is accordingly allowed.

As a sequel, CRPMP.No.2369 of 2012 of 2012 filed by the petitioner for interim
relief is disposed of as infructuous.

_______________________  
C.V.NAGARJUNA REDDY,J    
01.11.2012

Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in http://judis.nic.in/judis_andhra/qrydisp.aspx?filename=10515

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.