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Saturday, July 23, 2016

Rule 55 of Civil Rules of Practice - No separate application is necessary for consequential amendment -in KAVALI NARAYANA AND ORS. V/s. KAVALI CHENNAMMA2, wherein another single Judge of this Court held that a petition to condone the delay in setting aside the exparte decree being interconnected with main relief, namely setting aside exparte decree squarely falls under category of "consequential reliefs", which are exempt from requirement of Rule 55 of Rules. Therefore, single petition can be maintained. 8. Rule 55 of the A.P.Civil Rules of Practice and Circular Orders, 1980 reads as follows : 55 (New) Separate Application for each distinct prayer : There shall be separate application in respect of each distinct relief prayed for. When several reliefs are combined in one application, the Court may direct the applicant to confine the application only to one of such reliefs unless the reliefs are "consequential" and to file a separate application in respect of each of the others. ; Impleading of third party and for consequential amendment of plaint = From the facts of the case which are referred hereinabove, it seems that in spite of due diligence by the respondent he could not file the petition seeking amendment as well as impleadment of subsequent purchaser as the second defendant, and therefore, it cannot be said that there are any latches on his part. Further the proposed amendment or addition of Md.Sarwar as second defendant in the suit does not alter the cause of action in the suit. The subsequent sale deed executed by the revision petitioner in favour of Md.Sarwar was not in the knowledge of the respondents at the time of filing of the suit. Therefore, prior to the commencement of the trial it seems the respondent could not be able to find out the particulars relating to the subsequent sale in favour of Md.Sarwar. It cannot be said that he is not entitled to seek amendment of plaint and impleadment of Md.Sarwar as second defendant. The learned trial Court is therefore rightly exercised its jurisdiction in allowing the prayer for amendment and impleadment of Md.Sarwar as second defendant. There is no error of jurisdiction committed by the learned trial Court. There is no irregularity or illegality committed by the learned trial Court in passing the impugned order and the order does not call for any interference in this revision.

THE HON'BLE SRI JUSTICE R . KANTHA RAO      

CIVIL REVISION PETITION No.84  of 2011  

30-08-2011

Smt. Massarath Yasmeen        

Mohammed Azeemuddin & Anr.    

Counsel for the Revision Petitioner: Sri M.Subba Reddy

Counsel For Respondents: Sri M. Rajamalla Reddy

ORDER:


             This Civil Revision Petition is directed against the order dated 08-
12-2010 passed by the Senior Civil Judge, Bodhan, Nizamabad district, in I.A.No.
360 of 2010 in OS.No.67 of 2008.
        2.  The defendant in the suit is the petitioner. The plaintiff-respondent
filed the suit against the Revision Petitioner-defendant for specific
performance of agreement of sale dated 15-1-2008 in respect of an open plot
measuring 240 sq.yards. Under the agreement of sale, the revision petitioner
agreed to purchase the property for an amount of Rs.3,20,000/- and paid an
amount of Rs.48,000/- as advance and agreed to pay the remaining amount within a
period of two months.  According to the revision petitioner, the respondent
subsequently addressed a letter expressing his inability to purchase the plaint
schedule plot and permitting him to sell away the open plot to third party and
pay the earnest money back to him. It is said that after receiving the letter,
the revision petitioner sold part of the suit plot bearing Nos. 43 and 44 of an
extent of 240 sq.yards to one Md. Sarwar resident of Nizamabad and executed a
registered sale deed in his favour. Subsequent to the said sale the plaintiff
filed the suit for specific performance of contract in terms of the agreement of
sale, dated 15-1-2008.
        3.  The version of the respondent is that only after filing of the written
statement on 22-1-2009 by the revision petitioner mentioning therein that he
sold the property to Md.Sarwar, he came to know about the said sale and
therefore he could not plead the same in the plaint. He further submits that
after filing the written statement he filed memo into the court to furnish the
details of the said sale so as to enable him to implead subsequent purchaser as
defendant in the suit. But the respondent says that no such particulars were
furnished by the revision petitioner and he came to know about the particulars
when the revision petitioner filed petition Under Order-21, Rule-47 of CPC
before the Additional District Judge (VII Fast Track Court) Bodhan in CMA.No. 26
of 2009 for receiving the document i.e., the xerox copy of the sale deed No.
4566/08, dated 23-6-2008 as additional evidence. After knowing the particulars
from the additional evidence petition filed by the revision petitioner, the
respondent-plaintiff filed IA.No.360 of 2010 seeking amendment of the plaint and
impleadment of Md.Sarwar, the subsequent purchaser as defendant in the said
suit, the said petition was allowed by the learned Senior Civil Judge, Bodhan.
Feeling aggrieved, the revision petitioner filed the present civil revision
petition.
        4. It is the contention of the revision petitioner that since the
respondent addressed a letter stating that he is not willing to purchase the
property and perform his part of contract under the agreement of sale, he sold
the property to Md.Sarwar and the respondent therefore cannot maintain a
petition either to amend the plaint or to implead Md.Sarwar, as the second
defendant. He would further submit that in the suit, the written statement was
filed, issues were settled and the trial was already commenced during the course
of which the respondent-plaintiff filed chief examination affidavit and at the
belated stage the amendment shall not be allowed as per law. His last contention
is that the impleadment of Md.Sarwar as second defendant amending the plaint and
adding the relief of cancellation of the registered sale deed are two distinct
reliefs and the said reliefs cannot be sought in one petition and the
respondents ought to have filed two separate petitions and therefore the
petition filed by the revision petitioner praying for two reliefs is not
maintainable.
        5.  Heard Sri M.Subba Reddy, the learned counsel for the revision
petitioner and Sri M. Rajamalla Reddy, the learned counsel for the respondents.
        6. In support of his contention, the learned counsel appearing for the
Revision Petitioner relied upon a decision in SUPRIYA COLD STORAGE, WARANGAL      
V/s. K. SAMBASIVA RAO AND ORS 1, wherein the learned single Judge of this Court  
held that in a single petition multiple prayers are not maintainable and there
should be separate application in respect of each distinct relief prayed for.
        7.  On the other hand, the learned counsel appearing for the respondents
relied upon a decision in KAVALI NARAYANA AND ORS. V/s. KAVALI CHENNAMMA2,           
wherein another single Judge of this Court held that a petition to condone the
delay in setting aside the exparte decree being interconnected with main relief,
namely setting aside exparte decree squarely falls under category of
"consequential reliefs", which are exempt from requirement of Rule 55 of Rules.
Therefore, single petition can be maintained.
8. Rule 55 of the A.P.Civil Rules of Practice and Circular Orders, 1980 reads as
follows :
        55 (New) Separate Application for each distinct prayer :  There shall be
separate application in respect of each distinct relief prayed for. When several
reliefs are combined in one application, the Court may direct the applicant to
confine the application only to one of such reliefs unless the reliefs are
"consequential" and to file a separate application in respect of each of the
others.
        

9.  In fact, there is no conflict between the two judgments rendered in the
above-mentioned cases. If the relief is separate and distinct as per Rule 55 of
Civil Rules of Practice two separate applications have to be filed. When one
relief is ancillary to the main relief or inter-connected to the main relief two
prayers can be asked for in one petition and those prayers can be granted. Even
other wise as per Rule 55 of the Civil Rules of Practice if these two separate
applications are necessary the Court may direct the party making the application
to file two separate applications. But when once the party is entitled to the
relief, the Court is not supposed to dismiss the petition on the technical
ground.
        10.  Order-VI, Rule-17 of CPC which deals with the amendment of pleadings,
reads as follows :
        Order-VI, Rule-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.

                                                               
            11.  From the provision, it is, therefore, obvious that when once
the trial is commenced the party seeking amendment has to satisfy the Court that
inspite of due diligence, he could not make the amendment application before the
commencement of the trial.
            12.  In the instant case, on the date of filing of the suit the
respondent is not aware of the sale of 240 sq.yards of plot covered by the
agreement of sale in favour of Md.Sarwar under the registered sale deed dated
15-1-2008. He could only know the said fact after filing of the written
statement by the revision petitioner-defendant on 22-1-2009. Soon after knowing
the said fact, the respondent filed a memo into the court asking the revision
petitioner to furnish the particulars of the sale in favour of Md.Sarwar so as
to enable him to file petition for impleadment and amendment but no particulars
were evidently furnished by the respondent. Subsequently only when the revision
petitioner filed additional evidence petition in CMA.No.26 of 2009 with a prayer
to receive the sale deed executed in favour of Md.Sarwar as additional evidence,
the respondent could know about the particulars of the sale deed executed by the
revision petitioner in favour of Md.Sarwar. Subsequently he applied for
certified copies of the sale deed sought to be received in CMA.No. 26 of 2009 on
the file of VII Additional District Judge (Fast Track Court) Bodhan and soon
after that he filed IA.No. 360 of 2010 in OS.No. 67 of 2008 in respect of which
the order impugned in the revision was passed by the learned trial Court.
          13.  From the facts of the case which are referred hereinabove, it
seems that in spite of due diligence by the respondent he could not file the
petition seeking amendment as well as impleadment of subsequent purchaser as the  
second defendant, and therefore, it cannot be said that there are any latches on
his part. Further the proposed amendment or addition of Md.Sarwar as second
defendant in the suit does not alter the cause of action in the suit. The
subsequent sale deed executed by the revision petitioner in favour of Md.Sarwar
was not in the knowledge of the respondents at the time of filing of the suit.
Therefore, prior to the commencement of the trial it seems the respondent could
not be able to find out the particulars relating to the subsequent sale in
favour of Md.Sarwar. It cannot be said that he is not entitled to seek amendment
of plaint and impleadment of Md.Sarwar as second defendant. The learned trial
Court is therefore rightly exercised its jurisdiction in allowing the prayer for
amendment and impleadment of Md.Sarwar as second defendant. There is no error of  
jurisdiction committed by the learned trial Court. There is no irregularity or
illegality committed by the learned trial Court in passing the impugned order
and the order does not call for any interference in this revision.
          14.  In the result, the Civil Revision Petition is dismissed at the
stage of admission. There shall be no order as to costs.


_________________________  
JUSTICE R. KANTHA RAO.    

30-08-2011

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