SEC.391 OF CR.P.C. - ADDITIONAL EVIDENCE AT CRIMINAL APPEAL STAGE - EXAMINATION OF EXPERT - IN SEC.420 , 406 IPC - when acquittal is not based on finding of non-examination of expert - an application in appeal for examination of expert is not maintainable as the purpose not solved - though the appellate Court has power to take additional evidence under Section 391 of Cr.P.C., the said provision has to be sparingly used.- Dismissed the criminal revision =
The learned IV Additional Sessions Judge, Kadapa in his
order dated 28-11-2013 specifically mentioned that the order of
acquittal passed by the learned Magistrate was not solely
basing on the non examination of the hand writing expert, but
taking the entire evidence into consideration. The learned IV
Additional Sessions Judge, Kadapa also observed that there is
no mention about the non examination of hand writing expert by
the prosecution either in the appeal grounds or in the written
arguments filed in the appellate Court by the revision petitioner.
 Further, though the appellate Court has power to take
additional evidence under Section 391 of Cr.P.C., the said
provision has to be sparingly used. In the instant case, the
learned IV Additional Sessions Judge recorded elaborate
reasons for dismissing the petition. Therefore, in my view, the
learned appellate Court rightly dismissed the petition filed by the
revision petitioner/de facto complainant. The said order doesnot call for any interference in the present Criminal Revision

CRLRC 211 / 2014

Click here to see the Order

CRLRC 211 / 2014

CASE IS:DISPOSED

PETITIONER RESPONDENT K.V.RATHNAM ACHARI   VS THE STATE OF A.P., AND 2 OTHERS PET.ADV. : RAVI SHANKER RESP.ADV. : PUBLIC PROSECUTOR SUBJECT: Other offences not covered above DISTRICT:  CUDDAPAH

 THE HON’BLE SRI JUSTICE R.KANTHA RAO



CRIMINAL REVISION CASE NO.211 OF 2014

Between:-

K.V.Ratnam Achari.
…Petitioner/Appellant/Complainant.
And

The State of Andhra Pradesh, Represented by Public
Prosecutor,
High Court Buildings, Hyderabad and others.

…Respondents.


 THE HON’BLE SRI JUSTICE R.KANTHA RAO

CRIMINAL REVISION CASE NO.211 OF 2014

ORDER:

 This Criminal Revision Case is filed aggrieved by the
order dated 28-11-2013 in Crl.M.P.No.543 of 2013 in
Crl.A.No.12 of 2011 on the file of the IV Additional Sessions
Judge, Kadapa.
 The respondents were tried for the offences punishable
under Sections 420 and 406 of I.P.C., on the allegation that
they refused to return the gold ornaments pledged by the
revision petitioner/de facto complainant/Pw.1 and thereby
cheated him. By the Judgment dated 20-12-2010 in
C.C.No.449 of 2009, the learned I-Additional Magistrate of First
Class, Kadapa acquitted the respondents 2 and 3 of the saidoffences.
Feeling aggrieved, the de facto complainant filed Criminal
Appeal No.12 of 2011 on the file of the IV Additional Sessions
Judge, Kadapa and he also filed a petition under Section 391 of
Cr.P.C., to permit him to examine the hand writing expert as a
witness. The learned IV Additional Sessions Judge, Kadapa
dismissed the said petition by order dated 28-11-2013.
Aggrieved by the said order, the present Criminal Revision
Case is filed seeking to set aside the said order and permit the
revision petitioner/de facto complainant to examine the hand
writing expert as a prosecution witness.
 The learned IV Additional Sessions Judge, Kadapa in his
order dated 28-11-2013 specifically mentioned that the order of
acquittal passed by the learned Magistrate was not solely
basing on the non examination of the hand writing expert, but
taking the entire evidence into consideration. The learned IV
Additional Sessions Judge, Kadapa also observed that there is
no mention about the non examination of hand writing expert by
the prosecution either in the appeal grounds or in the written
arguments filed in the appellate Court by the revision petitioner.
 Further, though the appellate Court has power to take
additional evidence under Section 391 of Cr.P.C., the said
provision has to be sparingly used. In the instant case, the
learned IV Additional Sessions Judge recorded elaborate
reasons for dismissing the petition. Therefore, in my view, the
learned appellate Court rightly dismissed the petition filed by the
revision petitioner/de facto complainant. The said order doesnot call for any interference in the present Criminal Revision
Case.
 Accordingly, the Criminal Revision Case is dismissed.
Consequently, the Miscellaneous Petitions pending if any shall
stand closed.

_________________
R.KANTHA RAO,J
Date: 10-02-2014

Shr.


THE HON’BLE SRI JUSTICE R.KANTHA RAO

CRIMINAL REVISION CASE NO.211 OF 2014


































Date: 10-02-2014
Shr

MINES & MINERALS = SIZER & CONFISCATION =In view of the amended Rule 9-Q (1) (i) and (ii), read with Rule 9-Q (6), the petitioners are permitted to submit applications to the officer, who seized the vehicles; the said officer shall, within three days from the date of receipt of the applications; examine whether the vehicles were used in committing the offence for the first and the second time; and, if so, consider directing release of the vehicles on payment of the prescribed penalty. If, on the other hand, the vehicles are found to have been used in the commission of the offence, for three or more times, the officer concerned shall consider directing release of the vehicles, in accordance with Rule 9-Q (6), on a bond being executed by the owners of the vehicles for their production as and when directed by the Court.=RAJESH. R, SPSR NELLORE DIST & 2 OTHERS VS PRL SECY TO PANCHAYAT RAJ DEPT, HYD & 3 OTHERS =http://csis.ap.nic.in/csis/MainInfo =WP&mno=2364&year=2014

MINES & MINERALS = SIZER & CONFISCATION =In view of the amended Rule 9-Q (1) (i) and (ii), read with Rule 9-Q (6), the petitioners are permitted to submit applications to the officer, who seized the vehicles; the said officer shall, within three days from the date of receipt of the applications; examine whether the vehicles were used in committing the offence for the first and the second time; and, if so, consider directing release of the vehicles on payment of the prescribed penalty. If, on the other hand, the vehicles are found to have been used in the commission of the offence, for three or more times, the officer concerned shall consider directing release of the vehicles, in accordance with Rule 9-Q (6), on a bond being executed by the owners of the vehicles for their production as and when directed by the Court.=

seizing the petitioners’ vehicles without following any
procedure, as illegal and arbitrary.=
The amended Rules, notified in G.O.Ms.No.186 dated 17.12.2013,
prescribe a penalty for the first and second offences and, thereafter, for the
confiscation of the vehicle after following the procedure stipulated therein. 
Even in cases where a vehicle is sought to be confiscated, the officer who
seizes the vehicle is empowered to direct its release under Rule 9-Q (6) on
execution of a bond by the owner thereof for production of the vehicle so
released as and when directed by the Competent Court. Proceedings for
confiscation can be instituted in cases where the offences which have been
committed are for the third or more times. 

 In view of the amended Rule 9-Q (1) (i) and (ii), read with Rule 9-Q (6),
the petitioners are permitted to submit applications to the officer, who seized
the vehicles; the said officer shall, within three days from the date of receipt of
the applications; examine whether the vehicles were used in committing the
offence for the first and the second time; and, if so, consider directing release
of the vehicles on payment of the prescribed penalty. If, on the other hand,
the vehicles are found to have been used in the commission of the offence,
for three or more times, the officer concerned shall consider directing release
of the vehicles, in accordance with Rule 9-Q (6), on a bond being executed
by the owners of the vehicles for their production as and when directed by the
Court.
http://csis.ap.nic.in/csis/MainInfo =WP&mno=2364&year=2014

WP 2364 / 2014

WP 2364 / 2014

CASE IS:DISPOSED

PETITIONER RESPONDENT RAJESH. R, SPSR NELLORE DIST & 2 OTHERS   VS PRL SECY TO PANCHAYAT RAJ DEPT, HYD & 3 OTHERS PET.ADV. : PENUMAKA VENKATA RAO RESP.ADV. : GP FOR PANCHAYAT RAJ & RURAL DEV SUBJECT: PANCHAYAT RAJ & RURAL DEVP., (MISC.MATTERS) DISTRICT:  NELLORE

THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN

WRIT PETITION No.2364 of 2014
ORDER:

 The relief sought for in this writ petition is to declare the action of the
respondents, in seizing the petitioners’ vehicles without following any
procedure, as illegal and arbitrary.

Learned Government Pleader for Mines & Industries would draw
attention of this Court to the new Rules which have been made and notified
in G.O.Ms.No.186 dated 17.12.2013 modifying the earlier Rules regulating
quarrying and transportation of sand.

 Rule 9-Q (1) prescribes a penalty for the first and second offences.
Under rule 9-Q (1) (ii) if the vehicle is found to be involved in an offence more
than two times, it shall, along with sand, be liable for confiscation. Rule 9-Q
(2) provides for seizure of the vehicle. 9-Q (3) stipulates that the authorized
officer, who has seized the vehicle, shall order confiscation of the vehicle so
seized. Rule 9-Q (4) stipulates that no order of confiscation of any vehicle
shall be made, under sub-rule (3), unless the person from whom the vehicle
is seized is given: (i) a notice in writing informing him of the grounds on which
it is proposed to confiscate such property; (ii) an opportunity of making a
representation in writing within such time as may be specified in the notice
against the grounds for confiscation; and (iii) a reasonable opportunity of
being heard in the matter. Rule 9-Q (5) prohibits confiscation, under sub-rule
(3), being made of any vehicle if the owner of the vehicle proves, to the
satisfaction of the authorized officer, that it was used in carrying on
operations without his knowledge or connivance or the knowledge or
connivance of his agent, if any, or the person in charge of the vehicle in
committing the offence; and each of them had taken all reasonable and
necessary precautions against such use. Under the proviso to Rule 9-Q (5),
no order prejudicial to any person shall be passed without being afforded an
opportunity of being heard. Rule 9-Q (6) stipulates that any officer who has
seized any vehicle under Sub-rule (1)(ii), and where he makes a report of
such seizure to the Competent Court under sub-rule (2), may release thesame on the execution of a bond by the owner thereof for the production of
the vehicle so released as and when directed by the competent Court. Under
Rule 9-Q (8), upon receipt of any report under sub-rule (2), the Magistrate
shall take such measures as may be necessary for the trial of the accused
and the disposal of the vehicle according to law.

 The amended Rules, notified in G.O.Ms.No.186 dated 17.12.2013,
prescribe a penalty for the first and second offences and, thereafter, for the
confiscation of the vehicle after following the procedure stipulated therein. 
Even in cases where a vehicle is sought to be confiscated, the officer who
seizes the vehicle is empowered to direct its release under Rule 9-Q (6) on
execution of a bond by the owner thereof for production of the vehicle so
released as and when directed by the Competent Court. Proceedings for
confiscation can be instituted in cases where the offences which have been
committed are for the third or more times. 

 In view of the amended Rule 9-Q (1) (i) and (ii), read with Rule 9-Q (6),
the petitioners are permitted to submit applications to the officer, who seized
the vehicles; the said officer shall, within three days from the date of receipt of
the applications; examine whether the vehicles were used in committing the
offence for the first and the second time; and, if so, consider directing release
of the vehicles on payment of the prescribed penalty. If, on the other hand,
the vehicles are found to have been used in the commission of the offence,
for three or more times, the officer concerned shall consider directing release
of the vehicles, in accordance with Rule 9-Q (6), on a bond being executed
by the owners of the vehicles for their production as and when directed by the
Court.

The entire exercise, culminating in an order being passed, shall be
completed within three days from the date of submission of the
representations by the petitioners; and necessary action shall be taken for
release of the vehicles, in cases falling within the ambit of Rule 9-Q(1)(i), on
payment of the prescribed penalty; and, in other cases, on a bond being
executed in terms of Rule 9-Q (6) of the Rules.

The Writ Petition stands disposed of accordingly. The miscellaneouspetitions pending, if any, shall also stand disposed of. There shall be no
order as to costs.

_______________________________
 (RAMESH RANGANATHAN, J)
30.01.2014

Note: Issue C.C in two days.
B/o.
 vs

Whether the second appeal is maintainable with out filing appeal or cross objection ? - Held No.= SMT. JAYAM LEELAVATHAMMA VS NAMA JANARDHANA SETTY AND 8 OTHERS, =2014 A.P.- March .Part = http://csis.ap.nic.in/csis/MainInfo.SA&mno=67&year=2014

Whether the second appeal is maintainable with out filing appeal or cross objection ? - Held No.

The

appellant herein, who is defendant No.6 in the suit, has not challenged

that finding. Without filing an appeal against the judgment and decree

of the trial Court, the appellant cannot file Second Appeal.=

In view of the fact that the issue recorded by the trial Court

against the appellant/defendant No.6 has not been challenged by him

by filing an appeal or cross objections when the plaintiff filed the

appeal before the first appellate Court, she is debarred from filing the

Second Appeal, as she has not availed her right to file an appeal or

cross objections in the first instance. Therefore, the appeal is not

maintainable and hence, it is liable to be dismissed.

http://csis.ap.nic.in/csis/MainInfo.jsp?mtype=SA&mno=67&year=2014

SA 67 / 2014

SA 67 / 2014

CASE IS:DISPOSED

PETITIONER RESPONDENT SMT. JAYAM LEELAVATHAMMA   VS NAMA JANARDHANA SETTY AND 8 OTHERS, PET.ADV. : PRAMOD RESP.ADV. : VENKATESWARA RAO GUDAPATI SUBJECT: CONCURRENT DISTRICT:  CHITTOOR

http://164.100.12.10/hcorders/orders/2014/sa/sa_67_2014.pdf

THE HON’BLE SRI JUSTICE K.C.BHANU

SECOND APPEAL No.67 OF 2014


JUDGMENT:


This Second Appeal, under Section 100 of the Code of Civil
Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment
and decree, dated 4.2.2004, in A.S.No.25 of 2000 on the file of VII
Additional District Judge, Madanapalle, whereunder and whereby, the
judgment and decree, dated 21.3.2000, in O.S.No.102 of 1996 on the
file of the Senior Civil Judge, Piler were confirmed.
2. For better appreciation of facts, the parties hereinafter are
referred to as they are arrayed in the trial Court.

3. The plaintiff filed the suit against defendant Nos.1 to 8 originally

seeking division of the plaint schedule properties into 24 equal shares

and allotment of 9 such shares in his favour by separate metes and

bounds and for the other usual reliefs. Defendant No.9 was

subsequently added as per the order, dated 20.1.1988, in I.A.No.682 of

1987. The brief facts in the plaint are as follows:

The suit schedule properties are the ancestral properties of the

plaintiff, defendant No.3 and their father Srinivasulu Setty, each of

them had 1/3rd share in the property. Srinivasulu Setty got five

daughters, who are defendant Nos.2 and 4 to 7. All the daughters of

Srinivasulu Setty were married. After the death of Srinivasulu Setty,

who died intestate, his 1/3rd share devolved upon his five daughters

and two sons and each of them became entitled to 1/24

th share. Defendant No.1 is the wife of Srinivasulu Setty. Plaintiff, who was

originally entitled to 1/3rd share in the suit property, on the death of his

father, became entitled to 1/24th share and thus, entitled to 9/24th

share in the suit property.

After the death of Srinivasulu Setty, defendant No.3 became

greedy and intended to take away the income from the share of the

plaintiff also for which he did not agree. The plaintiff got issued a

notice on 14.9.1986 calling upon defendant No.3 to divide the property

and to allot his share separately. Defendant No.3 got issued a reply

notice with incorrect facts and figures. Defendant No.3 is trying to sell

away the joint family property to defendant No.8 without any manner of

right in spite of the protest by the plaintiff. Defendant No.9 is the

brother of defendant No.8. Defendant Nos.8 and 9 had taken the sale

deed from defendant No.3 in respect of some portion of the plaint

schedule properties. Hence, the suit.

4. Defendant Nos.2, 4 and 5 remained ex parte.

5. Defendant No.6 filed a written statement, which was adopted by

defendant Nos.1, 5 and 7, contending that except the relationship

between the parties as mentioned in the plaint, the other averments

are not true and correct. He contended that plaint schedule properties

excluding few items are the self acquired and separate properties of

late Srinivasulu Setty. Srinivasulu Setty executed two registered wills,

dated 27.8.1987, in favour of defendant Nos.2 and 4 to 7 and another

registered will, dated 5.9.1982, in favour of defendant No.1 to the

knowledge of the plaintiff and all the defendants in a sound and

disposing state of mind. The wills came into effect after the death of

Srinivasulu Setty. Defendant No.6 contended that herself, defendant

Nos.1, 5 and 7 were not aware of exchange of notices between the

plaintiff and defendant No.3. He also contended that they also came to

know of the alienations made by defendant No.3 in respect of some of

the items of plaint schedule properties detrimental to their interest and

contended that the alienations are illegal and not valid and binding on

them. Srinivasulu Setty had a little ancestral property, which he got in

a partition with his brothers, which took place around 1940. However,

the registered partition deed was executed among the brothers of Srinivasulu Setty only in the year 1972. There was practically noincome from the said property, as it was not cultivable due to drought

conditions. In the partition, Srinivasulu Setty was allotted several

debts to his share. He had a large family to maintain and so, in such

strained economic circumstances, he discharged his liabilities,

educated his children and performed their marriages with his hard

earnings and also acquired properties. Defendant No.1’s parents’

native place is Medikurthi. She got some property. It was also utilised

for the acquisitions made by Sreenivasulu Setty. The family suffered a

great deal due to the fraud committed by the first wife of defendant

No.3.The ancestral property owned by Srinivasulu Setty was covered

by item Nos.1 to 3 of the plaint schedule. Item Nos.1 and 2 of the plaint

schedule are in fact dry lands and the extents mentioned are incorrect. 

Item Nos.4 to 19 are all self acquired and separate properties of

Srinivasulu Setty wherein neither the plaintiff nor defendant Nos.1 to 7

have any right in view of the Wills executed by Srinivasulu Setty. 

Neither the plaintiff nor defendant No.3 has any right in the suit

property. On the death of Srinivasulu Setty, the plaintiff and defendant

Nos.2 to 7 became entitled to 1/8th share each in item Nos.4, 5 and 14

to 19, which were the separate and self acquired properties of

Srinivasulu Setty. In item Nos.1 to 3, which are ancestral properties,

Sreenivasulu Setty, plaintiff and defendant No.3 became entitled to

1/3rd share each and after the death of Srinivasulu Setty, plaintiff and

defendant No.3 became entitled to 9/24th share while defendant

Nos.1, 2 and 4 to 7 are entitled to 9/24th share. The defendant

appears to have executed a sale deed in respect of item No.4 in favour

of defendant Nos.8 and 9 and item Nos.14 and 16, which are not

binding on her and others. The plaintiff brought on record the persons,

who purchased the property from defendant No.3, being aware of the

same. He suspects collusion between the plaintiff and defendant No.3

and hence, prayed to dismiss the suit.

6. Defendant No.8 filed a written statement contending that

defendant No.3 purchased some properties covered by survey number

250 with his self earnings on 6.2.1965 for Rs.1500/- under a registered

sale deed, which is item No.4 of the plaint schedule property. He has

been in possession and enjoyment of the same. The Revenue

authorities have also issued the passbook in the name of defendant

No.3. He purchased item No.4 of the suit property from defendant

No.3 under a registered sale deed, dated 29.12.1986 for a

consideration of Rs.12,000/- and came into possession of the same. 

Item No.4 of the plaint schedule property never belonged to the joint

family of the plaintiff and hence, prayed to dismiss the suit.

7. Defendant No.3 did not choose to file a written statement. 

8. Basing on the above pleadings, the following issues were

framed for trial:

“1. Whether the plaint schedule properties

are the ancestral properties of the plaintiff

and defendants?

2. Whether the plaintiff is entitled for an

share if so, to what share?

 3. Whether the plaintiff is entitled for

 partition and separate possession?

 

 4. To what relief?”

 

9. Later, the following additional issues were framed:

 1.Whether item No.4 of the plaint

schedule 

 is the absolute property of D-8 and D-9

 and whether they are in absolute

 possession of the said item of property?

 

 2. Whether in the plaint schedule, item 

 No.4 was the separate and self

 acquired property of third defendant?”

10. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-3 were

got marked on behalf of the plaintiff. On behalf of the defendants,

D.Ws.1 to 10 were examined and Exs.B-1 to B-12 were got marked.

On behalf of defendant Nos.8 and 9, defendant No.3 was examined as

C.W.1 and Exs.C-1 and C-2 were got marked.

11. The trial Court, after considering the evidence on record, passed

a preliminary decree holding as under:-

“1) Plaintiff and the 3rd defendant are entitled to 9/24th

share each and defendants 1, 2 and 4 to 7 are each

entitled to 1/24th share in the plaint schedule items 1 to 3,

15 and 20 which are held to be the ancestral and the

joint family properties of the plaintiff and defendants 1 to7.

2) Defendants 1, 2 and 4 to 7 are exclusively entitled to

the plaint schedule items 6 to 13 by virtue of the

registered wills Exs.B3 and B4 executed by Nama

Sreenivasulu Setty which are held to be his self acquired

properties according to their respective allotments under

the said two Wills.

3) The plaintiff and defendants 1 to 7 are equally entitled

to 1/8th share each in the plaint schedule items 5, 14, 16

to 19, 21 and 22 as they are held to be the self acquired

properties of Nama Sreenivasulu Setty.

4) D8 and D9 are declared to be the absolute owners of

the plaint schedule item No.4 by virtue of Ex.B-8 sale

deed.” 

 

12. Against the said judgment and decree, the unsuccessful plaintiff

filed the appeal insofar as declaration that defendant Nos.8 and 9 are

the absolute owners of item No.4 by virtue of Ex.B-8 sale deed. The

appellant herein, who is defendant No.6 in the suit, has not challenged

that finding. Without filing an appeal against the judgment and decree

of the trial Court, the appellant cannot file Second Appeal.

13. Learned counsel for appellant placed reliance on a decision

reported in Hardevinder Singh v. Paramjit Singh and others

[1]wherein it is held at para No.21 as under:

“After the 1976 Amendment of Order 41 Rule 22, the insertion

made in sub-rule (1) makes it permissible to file a cross objection

against a finding.The difference is basically that a

respondent may defend himself without taking recourse to file a

cross-objection to the extent the decree stands in his favour, but if he

intends to assail any part of the decree, it is obligatory on his part to

file the cross-objection. In Banarsi v. Ram Phal [(2003)9 SCC 606],

it has been observed that the amendment inserted in 1976 is

clarificatory and three situations have been adverted to therein. 

Category 1 deals with the impugned decree which is partly in favour

of the appellant and partly in favour of the respondent. Dealing with

such a situation, the Bench observed that in such a case, it is

necessary for the respondent to file an appeal or take cross-objection

against that part of the decree which is against him if he seeks to get

rid of the same though he is entitled to support that part of the decree

which is in his favour without taking any cross-objection. In respect

of two other categories which deal with a decree entirely in favour of

the respondent though an issue had been decided against him or a

decree entirely in favour of the respondent where all the issues had

been answered in his favour but there is a finding in the judgment

which goes against him, in the pre-amendment stage, he could not

take any cross-objection as he was not a person aggrieved by the

decree. But post-amendment, read in the light of the Explanation to

sub-rule (1), though it is still not necessary for the respondent to take

any cross-objection laying challenge to any finding adverse to him as

the decree is entirely in his favour, yet he may support the decree

without cross-objection.It gives him the right to take cross

objection to a finding recorded against him either while answering an

issue or while dealing with an issue. It is apt to note that after the

amendment in the Code, if the appeal stands withdrawn or dismissed

for default, the cross-objection taken to a finding by the respondent

would still be adjudicated upon on merits which remedy was not

available to the respondent under the unamended Code.”

Even as per the ratio laid down in the above decision, the appellant

herein has to file an appeal or cross objections against the part of

decree, which is against him, before the first appellate Court. But he

did not do so.

14. In view of the fact that the issue recorded by the trial Court

against the appellant/defendant No.6 has not been challenged by him

by filing an appeal or cross objections when the plaintiff filed the

appeal before the first appellate Court, she is debarred from filing the

Second Appeal, as she has not availed her right to file an appeal or

cross objections in the first instance. Therefore, the appeal is not

maintainable and hence, it is liable to be dismissed.

 

15. Accordingly, the Second Appeal is dismissed at the stage of

admission. There shall be no order as to costs. Miscellaneous

petitions, if any, pending in this Second Appeal shall stand closed.

 

______________________

JUSTICE K.C.BHANU

Date: 21.3.2014

AMD

 THE HON’BLE SRI JUSTICE K.C.BHANU

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

SECOND APPEAL No.67 OF 2014

 

 

 

 

DATE : 21.3.2014

 

 

 

 

AMD

[1]

 (2013) 9 Supreme Court Cases 261

Amendment of pleadings = If mis-description of the property arises out of a genuine or bona fide mistake, it can be corrected even after passing of the decree also. If it is the case of the respondents/defendants that the petitioners/plaintiffs wantonly sought an amendment of northern and southern boundaries with the object of knocking away of their property, they can file additional written statement and contest the suit exposing the intention of the plaintiffs in obtaining amendment of the schedule. But at the stage of dealing with the applications seeking amendment, the Court is not expected to deeply indulge in evaluating the respective cases of the parties and the Court is not supposed to reject the amendment application with a foregone conclusion as to the merits of the case. Such a course is not permissible within the framework of Or.6 Rule-17 CPC. 19. In the instant case, it cannot be said that if the amendment is allowed it would introduce a new case or it would cause prejudice to the respondents/defendants. Amending the boundaries cannot be said to be introducing a new case.= Allam Nagaraju and 3 others.Petitioners Katta Jagan Mohan Reddy and 2 others..Respondents = 2014(Apr.Part ) http://judis.nic.in/judis_andhra/filename=11348

2014(Apr.Part ) http://judis.nic.in/judis_andhra/filename=11348

THE HONBLE SRI JUSTICE R.KANTHA RAO        

CIVIL REVISION PETITION No.2508 of 2013  

10-04-2014

Allam Nagaraju and 3 others.Petitioners

Katta Jagan Mohan Reddy and 2 others..Respondents  

Counsel for the Petitioners: Sri P.S.P.SURESH KUMAR  

Counsel for the respondents: Sri CHALLA SRINIVAS REDDY    
                              Sri S.LAXMINARAYAN REDDY

<Gist  :

>Head Note:

? Cases Referred:
1.AIR 1977 SC 680(1)
2.(2006) 6 SCC 498
3.2006(6) ALD 29 (SC)
4.2008(2) ALT 21 (SC)


THE HONBLE SRI JUSTICE R.KANTHA RAO        

CIVIL REVISION PETITION No.2508 of 2013  

ORDER:

      This Civil Revision Petition is filed under Article 227 of the
Constitution of India against the common order dated 30.04.2013 passed
in I.A.Nos.660/2012 & 788/2012 in O.S.No.205/2011 on the file of the II
Additional Senior Civil Judge, Warangal.
      2.  I have heard Sri P.S.P.Sureshkumar, learned counsel appearing
for the petitioners and Sri Challa Srinivas Reddy & Sri S.Laxminarayan
Reddy, learned counsel appearing for the respondents.
      3.  The revision petitioners are the plaintiffs in the suit.  They filed
the suit for perpetual injunction in respect of a land admeasuring Ac.3.27
gts in Sy.No.374/A, situated in Kadipikonda village, Hanamkonda Mandal,
Warangal District.  They also filed an interlocutory application in
I.A.No.229/2011 seeking temporary injunction pending disposal of the
suit.  The learned trial Court on the said application directed the parties to
maintain status quo.  The plaintiffs fully described the property in the
schedule annexed to the plaint as well as to the petition specifying the
extent and boundaries.  The defendants filed written statement
contending inter alia that the northern and southern boundaries
mentioned in the plaint schedule are incorrect and they gave the northern
and southern boundaries in the written statement which according to
them are correct.  Soon after filing of the written statement, the plaintiffs
did not seek any amendment of the boundaries but at a subsequent
stage, however, before the commencement of the trial filed
I.A.Nos.660/2012 & 788/2012 seeking amendment of the northern and
southern boundaries in the plaint as well as the petition schedules.  The
learned trial Court allowed the amendment.
      4.  Feeling aggrieved, the respondents filed CRP.No.4891/2012
before this Court.  Learned single Judge of this Court having felt that the
contentions of the parties were not properly considered while disposing of
the amendment petitions, remitted the matter to the trial Court with a
direction to consider the documents filed by both the parties in detail with
reference to their respective contentions and to find out whether the
amendment is necessary on account of mis-description of the northern
and southern boundaries in the schedule.
      5.  After remand, the learned trial Court passed the impugned
common order dated 30.04.2013 in I.A.Nos.660 & 788 of 2012 dismissing
the said petitions.  Against the said common order, the present revision
petition is filed by revision petitioners/plaintiffs.
      6.  In the impugned order, the learned trial Court expressed the
view that if the proposed amendment is allowed, it would introduce a new
cause of action and cause prejudice to the defendants not only in the
present suit but also in another suit filed by them in O.S.No.50/2011
(O.S.No.46/2012 new); further expressing the view that the plaintiffs did
not take steps seeking amendment immediately after noticing the
mistake, but took steps only after filing the written statement by the
defendants and also after obtaining the order of status quo in the
interlocutory application for injunction filed by them.
      7.  The learned counsel appearing for the petitioners would submit
that the trial Court by taking a totally erroneous view which is contrary to
the settled legal principles governing the amendments contemplated
under Or.6 Rule-17 CPC, dismissed the amendment petitions and the
impugned common order being illegal is liable to be set aside in the
present civil revision petition.
      8. On the other hand, the learned counsel appearing for the
respondents would submit that the learned trial Court rightly held that the
proposed amendment would introduce new cause of action and cause  
prejudice to the defendants and therefore the impugned order needs no
interference in this civil revision petition.
      9.  Admittedly, in this case, the plaintiffs gave the boundaries which
are mentioned in the sale deed under which they became entitled to the
suit property.  It is also a fact that in the agreement which was executed
prior to the sale deed, the very same boundaries were mentioned.
According to the respondents, in the link documents also the very same
boundaries were mentioned.  The version of the petitioners is that the
northern and southern boundaries mentioned in the sale deed itself are
incorrect, noticing the said fact, they obtained a registered rectification
deed from their vendors getting the northern and southern boundaries
corrected and thereafter filed the applications seeking amendment of the
boundaries in the plaint schedule as well as in the petition schedule.
      10. It is submitted by the learned counsel appearing for the
respondents that the defendants can take inconsistent pleas in the written
statement, but the plaintiffs normally are not supposed to take
inconsistent pleas; by seeking amendment of the northern and southern
boundaries to the schedule, the plaintiffs are introducing a new cause of
action and such a course is not permissible in law.  In support of his
contentions, the learned counsel for the respondents relied on a decision
in M/s.Modi Spinning and Weaving Mills Co.Ltd. and another v.
M/s.Ladha Ram and Co.  wherein the Supreme Court held that
amendment introducing entirely different new case and seeking to
displace the plaintiff completely from admissions made by defendants in
written statement shall be liable to be rejected.
      11.  The learned counsel appearing for the respondents also relied
on a decision in Baldev Singh v. Manohar Singh  wherein the Supreme
Court expressed the view that adding a new ground of defence or
substituting or altering a defence does not raise the same problem as
adding, altering or substituting a new cause of action, therefore
inconsistent defences can be raised in the written statement although the
same may not be permissible in case of the plaint.
      12.  Order 6 Rule 17 of the Code of Civil Procedure provides that
the Court may at any stage of the proceedings allow either party to alter
or amend 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.  Thus, wide power and unfettered discretion has been conferred
on the Court to allow the amendment of the pleadings by either of the
parties. But if the amendment is sought for after commencement of the
trial, the Court may allow amendment only if it is satisfied that in spite of
due diligence the party could not have raised the matter before the
commencement of trial.
      13. In the instant case, the amendment is sought for by the
petitioners/plaintiffs before the commencement of the trial.  Further, after
noticing the mis-description of northern and southern boundaries, the
petitioners/plaintiffs got a registered rectification deed executed through
their vendors and then made applications seeking amendment of the
boundaries.  As otherwise, it would not be possible for them to seek
amendment contrary to the boundaries mentioned in the sale deed.
Therefore, some delay has been occurred in making amendment  
applications which is not of much consequence in the instant case.
      14.  As to the observations made by the learned trial Court that the
amendment would introduce a new cause of action and would cause  
prejudice to the case of the defendants, I would like to state that mere
changing the boundary mentioned in the plaint schedule by itself does not
introduce any new cause of action and it cannot be said to be a new plea
taken by the petitioners/plaintiffs.
      15. In this context, it would be necessary to refer to the judgments
of the Apex Court relied on by the learned counsel for the
petitioners/plaintiffs in Baldev Singh and others etc. v. Manohar
Singh and another etc.  and Usha Devi v. Rijwan Ahamd .
       16.  In Baldev Singh and others etc. v. Manohar Singh and
another etc. (3 supra) the Supreme Court took the view that the Courts
should be extremely liberal in granting prayer for amendment unless
serious injustice or irreparable loss is caused to other side.
      17.  The facts of the case in Usha Devi v. Rijwan Ahamd (4
supra) are identical to the facts of the present case.  In the said case
before the Supreme Court, the plaintiff stating that due to inadvertence,
suit land was wrongly described in the schedule to the plaint and the
mistake required to be corrected, made an application for amendment of
the plaint.  The defendant opposed the amendment on the ground that
amendment sought for will render the suit non-maintainable as it would
not only materially change the suit property but also change cause of
action.  In the circumstances, the Supreme Court held as follows:
       In order to allow prayer for amendment, merit of amendment is
hardly a relevant consideration, it will be open to defendants to raise their
objection in regard to the amended plaint by making any corresponding
amendments in their written statement.

      18.  In the instant case, the learned trial Court had gone into the
merits of the rival contentions of the parties.  It is nothing but pre-judging
the issue.  While dealing with the amendment applications, it is absolutely
not necessary and also impermissible to go into the merits of the
respective contentions.  The Court is only concerned as to whether an
amendment which is sought for by a party can be allowed within the
parameters of Or.6 Rule-17 CPC.  Under law, it is quite permissible for a
party to withdraw an admission which he previously made.  Further,
mentioning incorrect boundary cannot be treated as an admission of the
fact by the plaintiffs.  If mis-description of the property arises out of a
genuine or bona fide mistake, it can be corrected even after passing of
the decree also.  If it is the case of the respondents/defendants that the
petitioners/plaintiffs wantonly sought an amendment of northern and
southern boundaries with the object of knocking away of their property,
they can file additional written statement and contest the suit exposing
the intention of the plaintiffs in obtaining amendment of the schedule.
But at the stage of dealing with the applications seeking amendment, the
Court is not expected to deeply indulge in evaluating the respective cases
of the parties and the Court is not supposed to reject the amendment
application with a foregone conclusion as to the merits of the case.  Such
a course is not permissible within the framework of Or.6 Rule-17 CPC.
      19.  In the instant case, it cannot be said that if the amendment is
allowed it would introduce a new case or it would cause prejudice to the
respondents/defendants.  Amending the boundaries cannot be said to be 
introducing a new case.  The view taken by the learned trial Court that
the amendment would introduce a new case and it causes prejudice to the
defendants is erroneous.  The learned trial Court unnecessarily indulged in
evaluating the merits of the contentions of the parties in the main suit and
the order passed by the learned trial Court in rejecting the amendment
applications filed by the petitioners/plaintiffs being not in accordance with
law is liable to be set aside in this civil revision petition.
      20.  Consequently, the impugned order dated 30.04.2013 passed in
I.A.Nos.660/2012 & 788/2012 in O.S.No.205/2011 by the II Additional
Senior Civil Judge, Warangal is set aside and I.A.Nos.660 & 788 of 2012
are allowed.  The Civil Revision Petition therefore succeeds and the same
is allowed without any order as to costs.
      Pending miscellaneous applications, if any, shall stand closed in
consequence.
_____________________  
R.KANTHA RAO,J  
Date: 10.04.2014