THE HONOURABLE SRI JUSTICE C.V. NAGARJUNA REDDY
Civil Revision Petition No.3673 of 2017
03-11-2017
Bhamidimarri Vijaya Lakshmi Petitioner
M.Uma Lakshmi Respondent
Counsel for the petitioner: Mr. Muddu Vijai
Counsel for the Respondent : -
<GIST:
>HEAD NOTE :
? CITATION :1. (2011) 8 SCC 249
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
CIVIL REVISION PETITION NO.3673 OF 2017
DATED:03-11-2017
THE COURT MADE THE FOLLOWING:
JUDGMENT:
This civil revision petition arises out of order
dt.21.06.2017 in I.A. No.10 of 2017 in O.S. No.1772 of 2011 on
the file of the I Additional Senior Civil Judge, Visakhapatnam.
2. The petitioner filed the aforementioned suit for the
following reliefs:
Therefore, the plaintiff humbly prays that the Honourable Court may
be pleased to pass a decree and judgment in her favour and against the
defendant for;
a) To direct the defendant to vacate the schedule premises and deliver
vacant possession of the same to the plaintiff in good condition as
was given to the defendant;
b) To direct the defendant to pay Rs.54,000/- (Rupees fifty four
thousand only) towards damages for unauthorized use and
occupation from January 2011 to September together with
subsequent interest @ 24% p.a. from the date of suit till
realization.
c) To direct the defendant to pay future damages at the rate of
Rs.6,000/- per month from October 2011 till delivery of the
schedule property;
d) For costs of the suit and
e) Such other relief or reliefs as the Honourable court may deem fit and
proper under the circumstances of the case.
The petitioner has valued the suit for the purpose of court fee
and jurisdiction, as under:
CF
1) For eviction of the defendant, the suit is valued
on the basis of 1 year Rental value,
i.e., Rs.6,000/- x 12 : Rs.72,000-00
Court fee is paid under Sec. 40 of the A.P.C.F.
and S.V. Act
2) For damages at the rate of Rs.6,000/-
per month from January 2011 to
September 2011
Rs.6,000 x 9 months : Rs.54,000-00
Court fee is paid under section 20
Art 1 (b) & (c) of Sch.I of A.P.C.F. and S.V. Act.
3. After the case was reserved for judgment, and was
subsequently reopened suo motu on the second occasion, the
petitioner filed I.A. No.10 of 2017 under Order VI Rule 17 of
the Code of Civil Procedure, 1908 (CPC) for permission to
carry out amendments to paragraphs V and VI of the plaint, as
under:
Para No.V Amendemnts.
V. Value of the suit for the purpose of Court fee and jurisdiction is
Rs.10,60,500/- and a Court fee of Rs.14,992/- is paid thereon under Section
29 and 20 read with Article 1(b) and (c) of the A.P.C.F. & S.V. Act, 1956.
DETAILS OF VALUATION
Value Court Fee
(1) Value of the relief of Ejection
Market Value of the suit schedule
Property Flat No.1 in Ground Floor
D.No.4-47-2/1 with a plinth area of
930 Sft., Sft. Cost Rs.1500/- per Sft. 14,25,000
3/4th thereof 10,06,500 12,526-00
(2) Damages 54,000 2,466-00
---------------- ---------------
TOTAL 10,60,500 14,992-00
------------------ -------------------
Earlier the petitioner paid C.F. of Rs.5332/- the balance CF of Rs.9,660/-
will be paid after allowing of this Application.
Para No.VI Amendments
VI. The plaintiff therefore prays for a decree against the defendants for
a) Ejection of the Defendant and their men with all their bag and baggage
from the suit schedule Flat and deliver vacant possession of the same to
the Plaintiff.
b) Payment of Damages of Rs.54,000/-
c) Payment of Mesne profits by the Defendant from the date of their
highhanded and unauthorized occupation, either to be ascertained by this
Honourable Court in the suit or by appointment of an Advocate
Commissioner.
d) Cost of this suit; and
e) Such other and further relief or reliefs as your Honourable Court may
deem fit, proper and necessary in the circumstances of the case.
4. The respondent filed a counter affidavit wherein she has
denied the ownership of the petitioner by taking the plea that
the suit schedule property was purchased by her father-in-law,
who is the husband of the petitioner, and kept ostensibly in the
latters name. It was further averred that though the said stand
was clearly taken in the written statement, no steps were taken
for amendment of the plaint till the trial was completed and
that in the absence of any plea that in spite of due diligence the
amendment could not be sought prior to the commencement of
the trial, the application is liable to be dismissed as per the
proviso to Order VI Rule 17 of CPC. A further plea was taken
that the application for the amendment filed beyond three years
from the date of filing of the suit is barred by limitation and
that the proposed amendment changes the entire character of
the suit. By order dt.21.06.2017, the lower Court has dismissed
the I.A.
5. During the hearing of the revision petition, this Court
noticed the contents of paragraph -7 of the order under
revision wherein it is stated that after completion of trial, the
case was reserved for judgment on 26.09.2016, that later it was
adjourned from time to time and again reopened on number of
occasions and that thereafter the petitioner filed I.A. No.10 of
2017 on 23.12.2016. This Court therefore called for the docket
proceedings in order to know the reasons for reopening of the
suit. The docket proceedings have been accordingly sent. As
this Court was unable to decipher the extremely unclear docket
entries made in manuscript, the lower Court was directed to get
the same typed. Accordingly, typed docket proceedings have
been forwarded by the lower Court. Before dealing with this
aspect, I would like to first consider the revision on merits.
6. A perusal of the order of the lower Court would reveal
that it has dismissed the I.A. on three grounds, namely, 1) that
the proposed amendment changes the character of the suit,
2) that the application for amendment having been filed six
years after filing of the suit and after completion of the trial, the
petitioner is not entitled to seek amendment having regard to
the provisions of Order VI Rule 17 of CPC, and 3) that the
petitioner has not assigned any reason in support of the
application for amendment.
7. On a comparison of the original prayer and the proposed
prayer, I do not find any substantial difference as regards the
main prayer, namely, recovery of possession, in their content,
though there is a slight variation in form. Under paragraph VI
(a) of the original prayer, the petitioner sought for a direction to
the respondent to vacate the schedule premises and deliver
vacant possession to her in good condition, while the proposed
prayer under paragraph VI(a) is for ejection of the respondent
and their men with all their bag and baggage from the suit
schedule flat and deliver vacant possession of the same. Prayer
(b) remained the same. Under prayer (c), the petitioner
originally sought a direction to the defendant to pay future
damages at the rate of Rs.6,000/- per month from October
2011 till delivery of the schedule property, whereas under the
proposed amendment, prayer mesne profits for unauthorized
occupation is sought. Unfortunately, the lower Court has
straight away accepted the ipse dixit of the respondent and
jumped to the conclusion that the proposed amendment
changes the whole character of the suit. The lower Court has
not discussed as to how the character of the suit will change if
the proposed amendment is accepted.
8. Be that as it may, the point that needs to be considered is
whether the petitioner is entitled for amendment of the plaint.
Under Order VI Rule 17 CPC, 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. The proviso to the said Rule, however, bars such
amendment 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
the trial. Under this provision, a party seeking amendment has
to necessarily satisfy two requirements, namely, (i) that the
proposed amendment is necessary for the purpose of
determining the real question in controversy between the
parties and, (ii) if the trial has been commenced the party must
satisfy the Court that in spite of his exercising due diligence he
could not file an application for amendment before the
commencement of the trial. The affidavit filed in support of
I.A. No.10 of 2017 is silent on both the aforementioned
aspects. It is not explained therein as to how the proposed
amendment is necessary for determining the real questions in
controversy.
9. As regards the exercise of due diligence, all that the
petitioner has stated in her affidavit is that originally, the suit
was entrusted to a Senior Counsel and thereafter to one Mr. P.
Ravi Kiran, that her counsel was elevated to a Judicial Post and
that therefore she has entrusted the case to the present counsel.
That at the time of institution of the suit, her counsel calculated
the court fee under Section 40 of the A.P. Court Fees and Suits
Valuation Act, 1956, instead of calculating the same under
Section 29 and 20 of the said Act and that she was unaware of
the legal proceedings and not conversant with the said Act and
therefore she could not pay the court fee as per the Act in force
in the State of Andhra Pradesh. She has further stated that at
the time of presenting the written arguments his counsel
observed the said mistake and filed the application. The
affidavit did not explain the necessity of seeking amendment of
the prayer in paragraph VI. As observed hereinbefore, except
the form, the substance of paragraph VI of the proposed
amendment is identical to that of the original prayer.
Therefore, I do not find any need whatsoever for the proposed
amendment.
10. As for the valuation shown under paragraph V, the relief
of eviction was valued on the basis of rental value for one year,
while under the proposed amendment it was valued based on
the market value. For seeking the amendment of relief of court
fee, there is no whisper that despite exercise of due diligence
the purported mistake was not detected. On the contrary, the
docket proceedings show that on 4.8.2016 written arguments
were filed on behalf of the petitioner and on 9.8.2016 written
arguments were filed on behalf of the respondent. Reply
arguments were filed on 6.9.2016, hearing was completed on
that day and the suit was posted for judgment on 26.09.2016.
Later, the case was adjourned to 30.09.2016, 14.10.2016,
28.10.2016, 28.10.2016 and 4.11.2016, on which date it was suo
motu reopened and adjourned to 17.11.2016 for judgment.
Again on 17.11.2016 the case was suo motu reopened for hearing
and adjourned to 24.11.2016 for hearing. On 24.11.2016 and
on 1.12.2016 the case was adjourned at request and on
14.12.2016 it was adjourned at the request of the counsel for
the petitioner. It is only on 23.12.2016 that the petitioner has
filed the aforementioned I.A. These facts would show that but
for the reopening of the suit for the second time, the petitioner
would not have had an opportunity of filing the application for
amendment. Apart from the fact that the pleading regarding
the due diligence is totally absent, even the conduct of the
petitioner does not show that she has exercised due diligence in
filing the application for amendment. Therefore, I have no
hesitation to hold that the petitioner has failed to satisfy the
twin requirements of Order VI Rule 17 of CPC as indicated
above. Though the lower Court has failed to assign sound
reasons for dismissing the I.A., the conclusion arrived at by it
and the result of the case, are nevertheless required to be
upheld, albeit on the strength of my own reasons as assigned
hereinbefore.
11. Before closing this case, it is necessary to observe that
though the trial was effectively commenced on 27.1.2015 with
the presence of P.W.1 in the Court, it took eighteen months for
the Court to complete the trial. Even after the trial was closed
and judgment was reserved on 6.9.2016, it was not delivered on
five occasions on which the case was posted. On 4.11.2016
the case was suo motu reopened and no reasons were assigned
therefor. The docket entry discloses that on the said date, the
case was again heard and adjourned to 17.11.2016 for
judgment. On the said date, again the case was suo motu
reopened and adjourned to 24.11.2016. The lower Court has
failed to assign any reason for reopening the case suo motu for
the second time also. This laxity on the part of the Court in
delivering the judgment has given the scope for the petitioner to
come out with an application for amendment as a result of
which, the suit has been kept pending.
11. The manner in which the Court below has handled the
case does not appear to be confined or peculiar to one
particular Court. The practice of reserving the cases for
judgment and reopening the same suo motu again and again
appears to be prevalent in many Courts in both the States. To
my mind, this is due to the failure of the Courts to make a
proper planning of posting and disposal of cases. In this
context, two pivotal provisions in the A.P. Civil Rules of
Practice and Circular Orders, 1980 (hereinafter referred to as
the Rules) need to be referred to and discussed. They are
Rules 66 and 101.
12. Rule 66 of the Rules, which deals with preparation and
publication of Special list, reads as under:
66. Preparation and publication of Special list:-
(1) On completion of the preliminary stages of suit or other matter,
the court shall obtain the required information from the
Advocates or parties to enable it to estimate the probable length of
the hearing and then post in the hearing book to particular dates.
(2) When the cases so posted are called on the dates, the Advocates or
the parties shall report whether there is any case of compromise or
death of parties and the like. Then a list known as the Special
List of ready cases shall be prepared at the beginning of every
month. For each day of the following month, postings shall be
made with sufficient number of contested suits, uncontested suits
and other matters that can be expected to be heard in a day. This
Special List shall be published on the notice board of the court
by the fifth day of each month. Between the fifth day and the
tenth day any representation which the Advocates or the parties
might have to make may be heard and necessary changes be
made.
(3) The final list for whole of the next month shall be published by
the tenth of each month and thereafter, short of the death of
parties or similar compelling reasons, no adjournments be
granted.
Rule 101 of the Rules, with the heading Application for
directions is as follows:
101. Application for directions:-
Any party may, at the first hearing, apply to the Court for directions or
the court may, suo motu issue directions as to any of the following matters:
(1) The filing of a written statement by any party, stating the pleas
raised by him or further and better particulars thereof;
(2) Adding or striking out parties;
(3) Discovery of documents and interrogatories;
(4) Inspection or production of any document or public record;
(5) Issue of a commission to examine witnesses, or for any other
purpose;
(6) Reference to an arbitrator;
(7) Any other matter or proceeding necessary to be considered or
taken prior to the trial of the suit.
Unless the court otherwise orders, not less than three days notice of such
application and of any affidavit filed in support thereof, shall be given by the
applicant to the other parties to the suit.
The above reproduced Rules embody the principle of Case
Management. If strict adherence to these Rules is made, the
Court can plan the disposal of cases in a time bound manner by
avoiding needless adjournments. The Court can also prevent
the spate of belated applications filed for reliefs, such as,
reference of disputed documents to experts for their opinion,
appointment of Advocates Commissioner for local inspections
etc., which are causing enormous delays in disposal of the suits.
Unfortunately, it does not appear that these two Rules are being
followed by any Court.
13. In Rameshwari Devi v. Nirmala Devi , the Supreme
Court suggested various measures for curbing delays in civil
litigation. Some of the important measures suggested by it in
paragraph 52 of the judgment are:
A. Pleadings are the foundation of the claims of parties. Civil
litigation is largely based on documents. It is the bounden duty and obligation
of the trial Judge to carefully scrutinize, check and verify the pleadings and the
documents filed by the parties. This must be done immediately after civil suits
are filed.
B. The court should resort to discovery and production of documents and
interrogatories at the earliest according to the object of the Act. If this exercise is
carefully carried out, it would focus the controversies involved in the case and
help the court in arriving at the truth of the matter and doing substantial justice.
J. At the time of filing of the plaint, the trial Court should prepare
complete schedule and fix dates for all the stages of the suit, right from filing of
the written statement till pronouncement of the judgment and the courts should
strictly adhere to the said dates and the said timetable as far as possible. If any
interlocutory application is filed then the same be disposed of in between the said
dates of hearings fixed in the said suit itself so that the date fixed for the main
suit may not be disturbed.
The directions in B and J in the judgment in Rameshwari
Devi (1 supra) constitute the essence of Rules 66 and 101 of the
Rules. While these Rules remain dead letters, the directions of
the Apex Court in Rameshwari Devi (1 supra) appear to be
followed more in breach.
14. As regards the time frame for delivery of judgments,
Section 33 of the Code of Civil Procedure ordains that the
Court, after the case has been heard, shall pronounce the
judgment. Rule 142 of the Rules, reads as under:
142. Time for delivery of judgment:-
(1) The Court, after case has been heard, shall pronounce judgment
in an open Court, either at once, or as soon thereafter as may be
practicable and when judgment is to be pronounced on some
future day, and such day shall be within thirty days and it shall
not ordinarily be a day beyond sixty days from the date on which
the hearing of the case was concluded the Court shall fix a day for
that purpose, of which due notice shall be given to the parties or
their pleaders.
(2) The fair copy of the judgment required for the record in Court
shall be prepared within five days of the date on which judgment
is pronounced.
Under the above reproduced rule, after the case has been
heard, the Court shall pronounce judgment in open Court either
at once or as soon thereafter as may be practicable. If the
judgment is to be pronounced on a future day, the same shall be
done within thirty days and shall not ordinarily be a day beyond
sixty days from the date on which the hearing of the case was
concluded. Being alive to the reality that the above Rule is
invariably breached, this Court has issued Circular in ROC
No.4001/OP CELL-E/2004, dt.30.8.2004, which reads as
follows.
Certain instances have come to the notice of the High Court where the
cases once posted for judgment are re-opened suo motu by the Presiding Officers
thereby the decisions are getting delayed causing hardship to the parties and
counsel.
While deprecating the said practice, the High Court hereby directs all the
Presiding Officers in the State not to resort to such practice, and pronounce
judgments, at once, and only in exceptional circumstances the cases are to be
reopened.
In order to monitor the said issue at High Court level, all the Unit Heads
are requested to furnish the consolidated data in the given proforma, relating to the
cases that were re-opened together with the reasons, in brief, every month.
PROFORMA
SL.
NO
NAME
OF THE
COURT
CASE
NO.
DATE ON
WHICH
HEARING
WAS
CLOSED
DATE TO
WHICH
JUDGMENT
IS POSTED
DATE
ON
WHICH
THE
CASE IS
RE-
OPENED
DATE ON
WHICH
JUDGMENT
PRONOUCNE
D
REASONS
IN BRIEF
The High Court issued another Circular vide ROC.
No.1708/2011-Vigilance Cell, dt.03.01.2012, reiterating the
earlier Circular and directing all the Presiding Officers in the
State to desist from the practice of reopening of matters which
are reserved for judgment and that only in exceptional
circumstances and for reasons to be recorded in writing, such
cases may be reopened by giving advance notice to the
concerned advocates, who are representing the parties. This
was reiterated by another letter of the Registrar (Vigilance) vide
Roc.Lr. No.1997/2011-Vigilance Cell, dt.02.04.2012. The said
Circulars and the letter notwithstanding, instances galore where
the officers have been reserving the judgments and reopening
the cases suo motu again and again.
15. Once the trial is completed and the judgment is reserved,
it is wholly undesirable to reopen the case by the Court suo motu.
This is a very unhealthy practice, which, apart from giving
scope for unscrupulous parties to indulge in vexatious litigation
by filing needless applications, as in the present case, also gives
rise to speculation, often putting the credibility of the Judge at
stake. By resorting to such practice, the Court creates a
needless suspicion in the minds of the parties and gives scope
for avoidable rumour mongering. In my opinion, till the
arguments of both sides in all respects are completed and the
Court gets clarity on all aspects from the counsel for both sides,
it shall not reserve the case for judgment. Once the judgment is
reserved, it must avoid reopening of the case suo motu as far as
possible, except in exceptional circumstances. Even in such
cases it cannot reopen the case without assigning proper
reasons and without notice to both the parties. In all such
events, the Court concerned must forthwith send the
information to the unit heads who in turn must furnish
consolidated data in the proforma, as per the Circular in ROC.
No.4001/OP CELL-E/2004, dt.30.08.2004.
16. The High Court on administrative side may ensure that
Section 33 of CPC read with Rule 142, and Rules 66 and 101 of
the A.P. Civil Rules of Practice and Circular Orders are
scrupulously followed by issuing appropriate Circular(s).
17. Subject to the above observations, the civil revision
petition is dismissed.
As a sequel to dismissal of the civil revision petition,
C.R.P.M.P. No.4809 of 2017 shall stand disposed of as
infructuous.
__________________________
C.V. NAGARJUNA REDDY, J
03-11-2017
Civil Revision Petition No.3673 of 2017
03-11-2017
Bhamidimarri Vijaya Lakshmi Petitioner
M.Uma Lakshmi Respondent
Counsel for the petitioner: Mr. Muddu Vijai
Counsel for the Respondent : -
<GIST:
>HEAD NOTE :
? CITATION :1. (2011) 8 SCC 249
THE HONBLE SRI JUSTICE C.V. NAGARJUNA REDDY
CIVIL REVISION PETITION NO.3673 OF 2017
DATED:03-11-2017
THE COURT MADE THE FOLLOWING:
JUDGMENT:
This civil revision petition arises out of order
dt.21.06.2017 in I.A. No.10 of 2017 in O.S. No.1772 of 2011 on
the file of the I Additional Senior Civil Judge, Visakhapatnam.
2. The petitioner filed the aforementioned suit for the
following reliefs:
Therefore, the plaintiff humbly prays that the Honourable Court may
be pleased to pass a decree and judgment in her favour and against the
defendant for;
a) To direct the defendant to vacate the schedule premises and deliver
vacant possession of the same to the plaintiff in good condition as
was given to the defendant;
b) To direct the defendant to pay Rs.54,000/- (Rupees fifty four
thousand only) towards damages for unauthorized use and
occupation from January 2011 to September together with
subsequent interest @ 24% p.a. from the date of suit till
realization.
c) To direct the defendant to pay future damages at the rate of
Rs.6,000/- per month from October 2011 till delivery of the
schedule property;
d) For costs of the suit and
e) Such other relief or reliefs as the Honourable court may deem fit and
proper under the circumstances of the case.
The petitioner has valued the suit for the purpose of court fee
and jurisdiction, as under:
CF
1) For eviction of the defendant, the suit is valued
on the basis of 1 year Rental value,
i.e., Rs.6,000/- x 12 : Rs.72,000-00
Court fee is paid under Sec. 40 of the A.P.C.F.
and S.V. Act
2) For damages at the rate of Rs.6,000/-
per month from January 2011 to
September 2011
Rs.6,000 x 9 months : Rs.54,000-00
Court fee is paid under section 20
Art 1 (b) & (c) of Sch.I of A.P.C.F. and S.V. Act.
3. After the case was reserved for judgment, and was
subsequently reopened suo motu on the second occasion, the
petitioner filed I.A. No.10 of 2017 under Order VI Rule 17 of
the Code of Civil Procedure, 1908 (CPC) for permission to
carry out amendments to paragraphs V and VI of the plaint, as
under:
Para No.V Amendemnts.
V. Value of the suit for the purpose of Court fee and jurisdiction is
Rs.10,60,500/- and a Court fee of Rs.14,992/- is paid thereon under Section
29 and 20 read with Article 1(b) and (c) of the A.P.C.F. & S.V. Act, 1956.
DETAILS OF VALUATION
Value Court Fee
(1) Value of the relief of Ejection
Market Value of the suit schedule
Property Flat No.1 in Ground Floor
D.No.4-47-2/1 with a plinth area of
930 Sft., Sft. Cost Rs.1500/- per Sft. 14,25,000
3/4th thereof 10,06,500 12,526-00
(2) Damages 54,000 2,466-00
---------------- ---------------
TOTAL 10,60,500 14,992-00
------------------ -------------------
Earlier the petitioner paid C.F. of Rs.5332/- the balance CF of Rs.9,660/-
will be paid after allowing of this Application.
Para No.VI Amendments
VI. The plaintiff therefore prays for a decree against the defendants for
a) Ejection of the Defendant and their men with all their bag and baggage
from the suit schedule Flat and deliver vacant possession of the same to
the Plaintiff.
b) Payment of Damages of Rs.54,000/-
c) Payment of Mesne profits by the Defendant from the date of their
highhanded and unauthorized occupation, either to be ascertained by this
Honourable Court in the suit or by appointment of an Advocate
Commissioner.
d) Cost of this suit; and
e) Such other and further relief or reliefs as your Honourable Court may
deem fit, proper and necessary in the circumstances of the case.
4. The respondent filed a counter affidavit wherein she has
denied the ownership of the petitioner by taking the plea that
the suit schedule property was purchased by her father-in-law,
who is the husband of the petitioner, and kept ostensibly in the
latters name. It was further averred that though the said stand
was clearly taken in the written statement, no steps were taken
for amendment of the plaint till the trial was completed and
that in the absence of any plea that in spite of due diligence the
amendment could not be sought prior to the commencement of
the trial, the application is liable to be dismissed as per the
proviso to Order VI Rule 17 of CPC. A further plea was taken
that the application for the amendment filed beyond three years
from the date of filing of the suit is barred by limitation and
that the proposed amendment changes the entire character of
the suit. By order dt.21.06.2017, the lower Court has dismissed
the I.A.
5. During the hearing of the revision petition, this Court
noticed the contents of paragraph -7 of the order under
revision wherein it is stated that after completion of trial, the
case was reserved for judgment on 26.09.2016, that later it was
adjourned from time to time and again reopened on number of
occasions and that thereafter the petitioner filed I.A. No.10 of
2017 on 23.12.2016. This Court therefore called for the docket
proceedings in order to know the reasons for reopening of the
suit. The docket proceedings have been accordingly sent. As
this Court was unable to decipher the extremely unclear docket
entries made in manuscript, the lower Court was directed to get
the same typed. Accordingly, typed docket proceedings have
been forwarded by the lower Court. Before dealing with this
aspect, I would like to first consider the revision on merits.
6. A perusal of the order of the lower Court would reveal
that it has dismissed the I.A. on three grounds, namely, 1) that
the proposed amendment changes the character of the suit,
2) that the application for amendment having been filed six
years after filing of the suit and after completion of the trial, the
petitioner is not entitled to seek amendment having regard to
the provisions of Order VI Rule 17 of CPC, and 3) that the
petitioner has not assigned any reason in support of the
application for amendment.
7. On a comparison of the original prayer and the proposed
prayer, I do not find any substantial difference as regards the
main prayer, namely, recovery of possession, in their content,
though there is a slight variation in form. Under paragraph VI
(a) of the original prayer, the petitioner sought for a direction to
the respondent to vacate the schedule premises and deliver
vacant possession to her in good condition, while the proposed
prayer under paragraph VI(a) is for ejection of the respondent
and their men with all their bag and baggage from the suit
schedule flat and deliver vacant possession of the same. Prayer
(b) remained the same. Under prayer (c), the petitioner
originally sought a direction to the defendant to pay future
damages at the rate of Rs.6,000/- per month from October
2011 till delivery of the schedule property, whereas under the
proposed amendment, prayer mesne profits for unauthorized
occupation is sought. Unfortunately, the lower Court has
straight away accepted the ipse dixit of the respondent and
jumped to the conclusion that the proposed amendment
changes the whole character of the suit. The lower Court has
not discussed as to how the character of the suit will change if
the proposed amendment is accepted.
8. Be that as it may, the point that needs to be considered is
whether the petitioner is entitled for amendment of the plaint.
Under Order VI Rule 17 CPC, 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. The proviso to the said Rule, however, bars such
amendment 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
the trial. Under this provision, a party seeking amendment has
to necessarily satisfy two requirements, namely, (i) that the
proposed amendment is necessary for the purpose of
determining the real question in controversy between the
parties and, (ii) if the trial has been commenced the party must
satisfy the Court that in spite of his exercising due diligence he
could not file an application for amendment before the
commencement of the trial. The affidavit filed in support of
I.A. No.10 of 2017 is silent on both the aforementioned
aspects. It is not explained therein as to how the proposed
amendment is necessary for determining the real questions in
controversy.
9. As regards the exercise of due diligence, all that the
petitioner has stated in her affidavit is that originally, the suit
was entrusted to a Senior Counsel and thereafter to one Mr. P.
Ravi Kiran, that her counsel was elevated to a Judicial Post and
that therefore she has entrusted the case to the present counsel.
That at the time of institution of the suit, her counsel calculated
the court fee under Section 40 of the A.P. Court Fees and Suits
Valuation Act, 1956, instead of calculating the same under
Section 29 and 20 of the said Act and that she was unaware of
the legal proceedings and not conversant with the said Act and
therefore she could not pay the court fee as per the Act in force
in the State of Andhra Pradesh. She has further stated that at
the time of presenting the written arguments his counsel
observed the said mistake and filed the application. The
affidavit did not explain the necessity of seeking amendment of
the prayer in paragraph VI. As observed hereinbefore, except
the form, the substance of paragraph VI of the proposed
amendment is identical to that of the original prayer.
Therefore, I do not find any need whatsoever for the proposed
amendment.
10. As for the valuation shown under paragraph V, the relief
of eviction was valued on the basis of rental value for one year,
while under the proposed amendment it was valued based on
the market value. For seeking the amendment of relief of court
fee, there is no whisper that despite exercise of due diligence
the purported mistake was not detected. On the contrary, the
docket proceedings show that on 4.8.2016 written arguments
were filed on behalf of the petitioner and on 9.8.2016 written
arguments were filed on behalf of the respondent. Reply
arguments were filed on 6.9.2016, hearing was completed on
that day and the suit was posted for judgment on 26.09.2016.
Later, the case was adjourned to 30.09.2016, 14.10.2016,
28.10.2016, 28.10.2016 and 4.11.2016, on which date it was suo
motu reopened and adjourned to 17.11.2016 for judgment.
Again on 17.11.2016 the case was suo motu reopened for hearing
and adjourned to 24.11.2016 for hearing. On 24.11.2016 and
on 1.12.2016 the case was adjourned at request and on
14.12.2016 it was adjourned at the request of the counsel for
the petitioner. It is only on 23.12.2016 that the petitioner has
filed the aforementioned I.A. These facts would show that but
for the reopening of the suit for the second time, the petitioner
would not have had an opportunity of filing the application for
amendment. Apart from the fact that the pleading regarding
the due diligence is totally absent, even the conduct of the
petitioner does not show that she has exercised due diligence in
filing the application for amendment. Therefore, I have no
hesitation to hold that the petitioner has failed to satisfy the
twin requirements of Order VI Rule 17 of CPC as indicated
above. Though the lower Court has failed to assign sound
reasons for dismissing the I.A., the conclusion arrived at by it
and the result of the case, are nevertheless required to be
upheld, albeit on the strength of my own reasons as assigned
hereinbefore.
11. Before closing this case, it is necessary to observe that
though the trial was effectively commenced on 27.1.2015 with
the presence of P.W.1 in the Court, it took eighteen months for
the Court to complete the trial. Even after the trial was closed
and judgment was reserved on 6.9.2016, it was not delivered on
five occasions on which the case was posted. On 4.11.2016
the case was suo motu reopened and no reasons were assigned
therefor. The docket entry discloses that on the said date, the
case was again heard and adjourned to 17.11.2016 for
judgment. On the said date, again the case was suo motu
reopened and adjourned to 24.11.2016. The lower Court has
failed to assign any reason for reopening the case suo motu for
the second time also. This laxity on the part of the Court in
delivering the judgment has given the scope for the petitioner to
come out with an application for amendment as a result of
which, the suit has been kept pending.
11. The manner in which the Court below has handled the
case does not appear to be confined or peculiar to one
particular Court. The practice of reserving the cases for
judgment and reopening the same suo motu again and again
appears to be prevalent in many Courts in both the States. To
my mind, this is due to the failure of the Courts to make a
proper planning of posting and disposal of cases. In this
context, two pivotal provisions in the A.P. Civil Rules of
Practice and Circular Orders, 1980 (hereinafter referred to as
the Rules) need to be referred to and discussed. They are
Rules 66 and 101.
12. Rule 66 of the Rules, which deals with preparation and
publication of Special list, reads as under:
66. Preparation and publication of Special list:-
(1) On completion of the preliminary stages of suit or other matter,
the court shall obtain the required information from the
Advocates or parties to enable it to estimate the probable length of
the hearing and then post in the hearing book to particular dates.
(2) When the cases so posted are called on the dates, the Advocates or
the parties shall report whether there is any case of compromise or
death of parties and the like. Then a list known as the Special
List of ready cases shall be prepared at the beginning of every
month. For each day of the following month, postings shall be
made with sufficient number of contested suits, uncontested suits
and other matters that can be expected to be heard in a day. This
Special List shall be published on the notice board of the court
by the fifth day of each month. Between the fifth day and the
tenth day any representation which the Advocates or the parties
might have to make may be heard and necessary changes be
made.
(3) The final list for whole of the next month shall be published by
the tenth of each month and thereafter, short of the death of
parties or similar compelling reasons, no adjournments be
granted.
Rule 101 of the Rules, with the heading Application for
directions is as follows:
101. Application for directions:-
Any party may, at the first hearing, apply to the Court for directions or
the court may, suo motu issue directions as to any of the following matters:
(1) The filing of a written statement by any party, stating the pleas
raised by him or further and better particulars thereof;
(2) Adding or striking out parties;
(3) Discovery of documents and interrogatories;
(4) Inspection or production of any document or public record;
(5) Issue of a commission to examine witnesses, or for any other
purpose;
(6) Reference to an arbitrator;
(7) Any other matter or proceeding necessary to be considered or
taken prior to the trial of the suit.
Unless the court otherwise orders, not less than three days notice of such
application and of any affidavit filed in support thereof, shall be given by the
applicant to the other parties to the suit.
The above reproduced Rules embody the principle of Case
Management. If strict adherence to these Rules is made, the
Court can plan the disposal of cases in a time bound manner by
avoiding needless adjournments. The Court can also prevent
the spate of belated applications filed for reliefs, such as,
reference of disputed documents to experts for their opinion,
appointment of Advocates Commissioner for local inspections
etc., which are causing enormous delays in disposal of the suits.
Unfortunately, it does not appear that these two Rules are being
followed by any Court.
13. In Rameshwari Devi v. Nirmala Devi , the Supreme
Court suggested various measures for curbing delays in civil
litigation. Some of the important measures suggested by it in
paragraph 52 of the judgment are:
A. Pleadings are the foundation of the claims of parties. Civil
litigation is largely based on documents. It is the bounden duty and obligation
of the trial Judge to carefully scrutinize, check and verify the pleadings and the
documents filed by the parties. This must be done immediately after civil suits
are filed.
B. The court should resort to discovery and production of documents and
interrogatories at the earliest according to the object of the Act. If this exercise is
carefully carried out, it would focus the controversies involved in the case and
help the court in arriving at the truth of the matter and doing substantial justice.
J. At the time of filing of the plaint, the trial Court should prepare
complete schedule and fix dates for all the stages of the suit, right from filing of
the written statement till pronouncement of the judgment and the courts should
strictly adhere to the said dates and the said timetable as far as possible. If any
interlocutory application is filed then the same be disposed of in between the said
dates of hearings fixed in the said suit itself so that the date fixed for the main
suit may not be disturbed.
The directions in B and J in the judgment in Rameshwari
Devi (1 supra) constitute the essence of Rules 66 and 101 of the
Rules. While these Rules remain dead letters, the directions of
the Apex Court in Rameshwari Devi (1 supra) appear to be
followed more in breach.
14. As regards the time frame for delivery of judgments,
Section 33 of the Code of Civil Procedure ordains that the
Court, after the case has been heard, shall pronounce the
judgment. Rule 142 of the Rules, reads as under:
142. Time for delivery of judgment:-
(1) The Court, after case has been heard, shall pronounce judgment
in an open Court, either at once, or as soon thereafter as may be
practicable and when judgment is to be pronounced on some
future day, and such day shall be within thirty days and it shall
not ordinarily be a day beyond sixty days from the date on which
the hearing of the case was concluded the Court shall fix a day for
that purpose, of which due notice shall be given to the parties or
their pleaders.
(2) The fair copy of the judgment required for the record in Court
shall be prepared within five days of the date on which judgment
is pronounced.
Under the above reproduced rule, after the case has been
heard, the Court shall pronounce judgment in open Court either
at once or as soon thereafter as may be practicable. If the
judgment is to be pronounced on a future day, the same shall be
done within thirty days and shall not ordinarily be a day beyond
sixty days from the date on which the hearing of the case was
concluded. Being alive to the reality that the above Rule is
invariably breached, this Court has issued Circular in ROC
No.4001/OP CELL-E/2004, dt.30.8.2004, which reads as
follows.
Certain instances have come to the notice of the High Court where the
cases once posted for judgment are re-opened suo motu by the Presiding Officers
thereby the decisions are getting delayed causing hardship to the parties and
counsel.
While deprecating the said practice, the High Court hereby directs all the
Presiding Officers in the State not to resort to such practice, and pronounce
judgments, at once, and only in exceptional circumstances the cases are to be
reopened.
In order to monitor the said issue at High Court level, all the Unit Heads
are requested to furnish the consolidated data in the given proforma, relating to the
cases that were re-opened together with the reasons, in brief, every month.
PROFORMA
SL.
NO
NAME
OF THE
COURT
CASE
NO.
DATE ON
WHICH
HEARING
WAS
CLOSED
DATE TO
WHICH
JUDGMENT
IS POSTED
DATE
ON
WHICH
THE
CASE IS
RE-
OPENED
DATE ON
WHICH
JUDGMENT
PRONOUCNE
D
REASONS
IN BRIEF
The High Court issued another Circular vide ROC.
No.1708/2011-Vigilance Cell, dt.03.01.2012, reiterating the
earlier Circular and directing all the Presiding Officers in the
State to desist from the practice of reopening of matters which
are reserved for judgment and that only in exceptional
circumstances and for reasons to be recorded in writing, such
cases may be reopened by giving advance notice to the
concerned advocates, who are representing the parties. This
was reiterated by another letter of the Registrar (Vigilance) vide
Roc.Lr. No.1997/2011-Vigilance Cell, dt.02.04.2012. The said
Circulars and the letter notwithstanding, instances galore where
the officers have been reserving the judgments and reopening
the cases suo motu again and again.
15. Once the trial is completed and the judgment is reserved,
it is wholly undesirable to reopen the case by the Court suo motu.
This is a very unhealthy practice, which, apart from giving
scope for unscrupulous parties to indulge in vexatious litigation
by filing needless applications, as in the present case, also gives
rise to speculation, often putting the credibility of the Judge at
stake. By resorting to such practice, the Court creates a
needless suspicion in the minds of the parties and gives scope
for avoidable rumour mongering. In my opinion, till the
arguments of both sides in all respects are completed and the
Court gets clarity on all aspects from the counsel for both sides,
it shall not reserve the case for judgment. Once the judgment is
reserved, it must avoid reopening of the case suo motu as far as
possible, except in exceptional circumstances. Even in such
cases it cannot reopen the case without assigning proper
reasons and without notice to both the parties. In all such
events, the Court concerned must forthwith send the
information to the unit heads who in turn must furnish
consolidated data in the proforma, as per the Circular in ROC.
No.4001/OP CELL-E/2004, dt.30.08.2004.
16. The High Court on administrative side may ensure that
Section 33 of CPC read with Rule 142, and Rules 66 and 101 of
the A.P. Civil Rules of Practice and Circular Orders are
scrupulously followed by issuing appropriate Circular(s).
17. Subject to the above observations, the civil revision
petition is dismissed.
As a sequel to dismissal of the civil revision petition,
C.R.P.M.P. No.4809 of 2017 shall stand disposed of as
infructuous.
__________________________
C.V. NAGARJUNA REDDY, J
03-11-2017
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