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
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
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