OR. 6, RULE 17 EVEN AFTER COMMENCEMENT OF TRIAL, PLAINT AMENDMENT FOR CANCELLATION OF SALE DEED IN BARE INJUNCTION SUIT IS PERMISSIBLE =No doubt, in a suit for permanent injunction simplicitor, possession of the plaintiff is the primary concern, the second or secondary concern being as to whether the plaintiff has got better title to the property than that of the defendants. In the secondary aspect to be decided in the suit for permanent injunction, the plaintiff has to necessarily attack the sale deed dated 08.06.2011. Since the sale deed dated 08.06.2011 is in respect of the suit property only and in between the defendants 1 and 2 on the one hand and the 3rd defendant on the other hand, scope of the suit may not be totally changed. The proposed amendment if allowed will only enlarge the procedure of the suit by way of giving permission to defendants to file additional written statement and framing additional issues before proceeding with further trial. 5) In the circumstances, this Court is of the opinion that the lower Court did not exercise its discretion properly and it resulted in dismissal of the petition refusing to give permission for amendment of the plaint. 6) In the result, the revision petition is allowed setting aside impugned order passed by the lower Court and directing the lower Court to permit the plaintiff/petitioner to amend the plaint as prayed for in I.A. No.1166 of 2012 in the suit, subject to the plaintiff paying Rs.500/- to the District Legal Services Authority, Khammam within 4 weeks from today; and in default, this order shall stand set aside automatically. No further extension of time will be granted.

THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU              

CIVIL REVISION PETITION No.1409 of 2013  

24-04-2013

Vallala Yasodha

Vallala Naga Venkata Laxmi & 2 others

Counsel for the Petitioner : Sri N.V.Anantha Krishna
Counsel for the Respondents :  Sri M.Rajamalla Reddy

<Gist :

>Head Note:

?Cases referred:

ORDER:
        This revision petition is filed questioning order of the lower Court
refusing to permit amendment of the plaint.  Originally the suit is filed for
permanent injunction by the petitioner and it was being contested by the
respondents/defendants.  Trial of the suit has commenced and evidence of the
plaintiff as P.W-1 was over.  At that stage, the plaintiff filed the present
petition in the lower Court for amendment of the plaint in order to include the
relief of cancellation of the document No.4615/2011, dated 08.06.2011.  The said
sale deed dated 08.06.2011 was executed by the defendants 1 and 2 in favour of
the 3rd defendant in respect of the suit property.  The said document was prior
to filing of the suit in the lower Court.  The suit was filed in August, 2011.
The lower Court dismissed the petition on the ground that the plaintiff-
petitioner was knowing about the said sale deed at least since the time of
filing of the written statement and in spite of it the petitioner did not come
forward with the prayer for amendment of plaint till after trial of the suit is
commenced.
        2) It is contended by the petitioner's counsel that the petitioner is an
old lady of 87 years and she is not well versed in law and that therefore she
could not file the petition expeditiously.  On the other hand, the respondents'
counsel contended that the present petition for amendment is hit by proviso to
Order VI Rule 17 C.P.C.  The said provision reads as follows:
"17. Amendment of pleadings:- The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as may be necessary
for the purpose of determining the real questions in controversy between the
parties:
        Provided 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."
        3) The above proviso, on plain reading reveals that initial prohibition
for a party to approach the Court for amendment of pleading after commencement
of trial, is not a rigid prohibition.  The said initial rigidity was watered
down by the Parliament itself by the latter part of the proviso to the effect
that "unless the Court comes to the conclusion that in spite of due diligence,
the party could not have been raised the matter before the commencement of
trial".  In a matter of this nature relating to seeking an additional prayer in
the plaint, usually the party has no much role.  It is for the advocate of the
party to decide as to frame of the suit and as to the amendment to be sought by
way of inclusion of an additional prayer in the suit.  The party instructs the
advocate only on the factual aspects of the case and not on legal aspects which
are within exclusive domain of the legal counsel.  Perhaps, during the course of
P.W-1's evidence it was thought that the sale deed dated 08.06.2011 executed by
the defendants 1 and 2 in favour of the 3rd defendant has to be attacked
directly.  In the circumstances, I am of the opinion that the rigor of 1st part
of proviso to Order VI Rule 17 C.P.C can be reduced by way of imposing penalty
on the petitioner by way of costs.
        4) Secondly it is contended by the respondents' counsel that prayer for
cancellation of sale deed dated 08.06.2011 is outside the scope of the existing
suit for permanent injunction.
No doubt, in a suit for permanent injunction
simplicitor, possession of the plaintiff is the primary concern, 
the second or
secondary concern being as to whether the plaintiff has got better title to the
property than that of the defendants.  
In the secondary aspect to be decided in
the suit for permanent injunction, the plaintiff has to necessarily attack the sale deed dated 08.06.2011. 
 Since the sale deed dated 08.06.2011 is in respect
of the suit property only and in between the defendants 1 and 2 on the one hand
and the 3rd defendant on the other hand, scope of the suit may not be totally
changed.  
The proposed amendment if allowed will only enlarge the procedure of
the suit by way of giving permission to defendants to file additional written
statement and framing additional issues before proceeding with further trial.
        5) In the circumstances, this Court is of the opinion that the lower Court
did not exercise its discretion properly and it resulted in dismissal of the
petition refusing to give permission for amendment of the plaint.
        6) In the result, the revision petition is allowed setting aside impugned
order passed by the lower Court and directing the lower Court to permit the
plaintiff/petitioner to amend the plaint as prayed for in I.A. No.1166 of 2012
in the suit, subject to the plaintiff paying Rs.500/- to the District Legal
Services Authority, Khammam within 4 weeks from today; and in default, this
order shall stand set aside automatically.  No further extension of time will be
granted.
____________________________  
SAMUDRALA GOVINDARAJULU,J      
Dt.18th April, 2013

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.