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Friday, January 3, 2014

Or. VI, rule 17 C.P.C. - amendment petition asking to add some other items in plaint at the stage of arguments - suit for return of gold and silver ornaments and the amount given towards household articles etc., - No grounds to allow the amendment petition - she can get remedy by way of D.V.C. etc or under Or. 2 rule 2(3) by taking permission from the court to take separate claim later ., - High court dismissed the CRP = Veluri Raja Rajeswari ...Petitioner Veluri Santhansagar Reddy and another ...Respondents = published in judis.nic.in/judis_andhra/filename=10623

Or. VI, rule 17 C.P.C. - amendment petition asking to add some other items in plaint  at the stage of arguments - suit for return of gold and silver ornaments and the amount given towards household articles etc., - No grounds to allow the  amendment petition - she can get remedy by way of D.V.C. etc or under Or. 2 rule 2(3) by taking permission from the court to take separate claim later ., - High court dismissed the CRP =
When the case was posted for arguments, the 
petitioner herein filed IA No.815 of 2009 in FCOP No.340 of 2008 seeking to
amend the prayer column to claim a further sum of Rs.80,000/- towards silver
articles, Rs.5,00,000/- towards dowry amount and Rs.5,00,000/- towards
compensation and damages for the mental torture and emotional distress on
account of marital disturbance due to illegal acts of the respondents.  
The
lower Court dismissed the said petition holding that the claim is barred by
limitation under Article 113 of the Limitation Act.  Challenging the said order
this revision has been filed. = It is also her submission that since the
proceedings are pending in the Court Section 113 of the Limitation Act has no
application. =
As seen from the averments of the plaint, it is clear that the petitioner has
referred about the present claims in her plaint averments, however the fact
remains that she did not specifically claim those items in the prayer column.=
Sub-rule (3) of Rule 2 of Order II
makes it clear that with the leave of the Court the party may sue for the relief
omitted earlier.  
Having regard to the facts and circumstances of the case it
appears that the petitioner may avail whatever remedies available to her under
Order II Rule 2 sub-rule (3) of CPC or by initiating separate proceedings under
DVC, but as far as present suit is concerned, the trial is already over and the
suit is posted for arguments.  
Order VI Rule 17 CPC is 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."

Thus, the proviso to Rule 17 makes it clear 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.  
In this case by stretch of no
imagination it can be said that the petitioner in spite of due diligence could
not have raised the matter before the commencement of trial.  
The amendment now 
sought by the petitioner is within her knowledge.  
Even as seen from the
averments made in the plaint itself it appears that the petitioner has also
lodged a complaint under Section 498-A IPC.  
The petition filed by the petitioner cannot be
entertained at this stage.  If the petition filed by the petitioner is allowed
consequently retrial has to be conducted and all the witnesses have to be
recalled and they have to be further cross-examined.  That course is not open
unless the party proves that her claim comes within the proviso to Rule 17 of
Order VI CPC. 
Subject to the observations made supra, the CRP is dismissed.  

THE HONOURABLE SRI JUSTICE B.CHANDRA KUMAR            

CRP No.4934 of 2010

12-11-2013

Veluri Raja Rajeswari ...Petitioner

Veluri Santhansagar Reddy and another ...Respondents

Counsel for the Petitioner: Smt. M. Vidyavathi

Counsel for the Respondents:Sri M. Venkata Narayana

<Gist:

>Head Note:

?Cases Referred:

THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR        

C.R.P. No. 4934 of 2010

Order:

This CRP is directed against the order dated 09.02.2010 passed in IA No.815 of
2009 in FCOP No.340 of 2008 by the Judge, Family Court, Nellore, SPSS Nellore
District.
The brief facts of the case are as follows.  The petitioner herein is the wife
of the first respondent herein.  The second respondent is the mother of the
first respondent.  The petitioner initially filed a suit for return of gold and
silver ornaments and the amount given towards household articles etc., amounting
to Rs.8,02,500/-.  Subsequently, the said suit was converted as FCOP No.340 of
2008.  It appears that after the respondents filed counter, issues were framed
and both sides evidence was closed.  
When the case was posted for arguments, the 
petitioner herein filed IA No.815 of 2009 in FCOP No.340 of 2008 seeking to
amend the prayer column to claim a further sum of Rs.80,000/- towards silver
articles, Rs.5,00,000/- towards dowry amount and Rs.5,00,000/- towards
compensation and damages for the mental torture and emotional distress on
account of marital disturbance due to illegal acts of the respondents.  
The
lower Court dismissed the said petition holding that the claim is barred by
limitation under Article 113 of the Limitation Act.  Challenging the said order
this revision has been filed.
Smt M. Vidyavathi, learned counsel for the petitioner, submits that the
petitioner has referred all her claims in her plaint averments and the amendment
now sought is not a new case.  It is also her submission that since the
proceedings are pending in the Court Section 113 of the Limitation Act has no
application.
On the other hand, Sri M. Venkata Narayana, learned counsel for the respondents
submitted that no amendment can be allowed after the trial has commenced and in
this case trial has not only commenced but the trial is over and the case was
posted for arguments.  It is also his submission that there is nothing on record
to say that the petitioner in spite of due diligence could not have raised the
matter before the commencement of trial.
As seen from the averments of the plaint, it is clear that the petitioner has
referred about the present claims in her plaint averments, however the fact
remains that she did not specifically claim those items in the prayer column.
Order VI Rule 17 CPC is 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."

Thus, the proviso to Rule 17 makes it clear 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.
In this case by stretch of no
imagination it can be said that the petitioner in spite of due diligence could
not have raised the matter before the commencement of trial.  
The amendment now 
sought by the petitioner is within her knowledge.  
Even as seen from the
averments made in the plaint itself it appears that the petitioner has also
lodged a complaint under Section 498-A IPC.  
Sub-rule (3) of Rule 2 of Order II
makes it clear that with the leave of the Court the party may sue for the relief
omitted earlier.
Having regard to the facts and circumstances of the case it
appears that the petitioner may avail whatever remedies available to her under
Order II Rule 2 sub-rule (3) of CPC or by initiating separate proceedings under
DVC, but as far as present suit is concerned, the trial is already over and the
suit is posted for arguments.
The petition filed by the petitioner cannot be
entertained at this stage.  If the petition filed by the petitioner is allowed
consequently retrial has to be conducted and all the witnesses have to be
recalled and they have to be further cross-examined.  That course is not open
unless the party proves that her claim comes within the proviso to Rule 17 of
Order VI CPC. 
Subject to the observations made supra, the CRP is dismissed.  No costs.
As a sequel, the miscellaneous petitions, if any, pending in this CRP shall
stand closed.

______________________  
B. CHANDRA KUMAR, J.    
Date: 12.11.2013

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