The plaintiff respondent No.1 filed I.A.No.1175 of 2022 under Order VI Rule 17 C.P.C for amendment in the plaint, amendment to North boundary as “vanka” by deleting the word “forest” as also the Southern boundary as the “cart track in Yanamalagunta” by deleting the word “vanka” in the plaint schedule

HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE EIGHTEENTH DAY OF JULY

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION NO: 1637 OF 2023

Between:

1. K. Krishnamurthy Chetty, S/o K. Shankar Chetty,

Aged about 62 years, Occ- Cultivation,

R/o Gandlapalle Village, Erracheruvupalle post,

Puthalapattu Mandal, Chittoor District.

...PETITIONER(S)

AND:

1. K. Sriramulu Chetty, S/o K. Shankar Chetty,

Aged about 77 years, 0cc- Cultivation,Door No.2-145/1

R/o Gandlapalle Village, Erracheruvupalle post,

Puthalapattu Mandal, Chittoor District.

2. K. Chennakesavulu Chetty, S/o K. Shankar Chetty,

Aged about 74 years, Occ- Cultivation,

R/o Gandlapalle Village, Erracheruvupalle post,

Puthalapattu Mandal, Chittoor District.

3. K. Kumaraswamy Chetty, S/o K. Shankar Chetty, Aged about 64 years,

0cc- Cultivation,

R/o Gandlapalle Village, Erracheruvupalle post, Puthalapattu Mandal,

Chittoor District.

( Respondent no 2 and 3 are not necessary parties to the CRP)

...RESPONDENTS

Counsel for the Petitioner(s): T D PANI KUMAR

Counsel for the Respondents:

The Court made the following: ORDER

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HIGH COURT OF ANDHRA PRADESH

* * * *

CIVIL REVISION PETITION Nos.1637 & 1638 OF 2023

Between:

K. Krishnamurthy Chetty ……..Petitioner.

AND

K. Sriramulu Chetty and another

.....Respondents

DATE OF JUDGMENT PRONOUNCED:18.07.2023

SUBMITTED FOR APPROVAL:

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

1. Whether Reporters of Local newspapers

may be allowed to see the Judgments?

Yes/No

2. Whether the copies of judgment may be

marked to Law Reporters/Journals

Yes/No

3. Whether Your Lordships wish to see the

fair copy of the Judgment?

Yes/No

_________________________

RAVI NATH TILHARI, J

2023:APHC:23347

2

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+ CIVIL REVISION PETITION Nos.1637 & 1638 OF 2023

% 18.07.2023

Between:

# K. Krishnamurthy Chetty ……..Petitioner.

And

$ K. Sriramulu Chetty and another

 .....Respondents

! Counsel for the Petitioner: Sri T.P. Phani Kumar

^ Counsel for the respondents : Nil

< Gist :

> Head Note:

? Cases Referred:

1.AIR 2022 SC 4256

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION Nos.1637 & 1638 OF 2023

COMMON JUDGMENT:

1. Heard Sri T.P. Phani Kumar, learned counsel for the

revision petitioner.

2. The Civil Revision Petition No.1637 of 2023 has been filed

under Article 227 of the Constitution of India challenging the

order dated 16.03.2023, passed in I.A.No.1175 of 2022 in

O.S.No.547 of 2020, on the file of the I Additional Junior Civil

Judge, Chittoor.

3. The Civil Revision Petition No.1638 of 2023 has been filed

under Article 227 of the Constitution of India challenging the

order dated 16.03.2023, passed in I.A.No.1176 of 2022 in

O.S.No.547 of 2020, on the file of the I Additional Junior Civil

Judge, Chittoor.

4. Both the civil revision petitions are being disposed of by

this common judgment.

5. The petitioner in both the revisions is the defendant No.3

in the suit and the respondent No.1 is the plaintiff whereas the

respondents 2 and 3 are the defendants 1 and 2 respectively in

the suit. The plaintiff respondent filed the suit for partition and

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for separate possession with respect to the suit schedule

property.

6. The 3rd defendant filed the written statement.

7. The plaintiff respondent No.1 filed I.A.No.1175 of 2022

under Order VI Rule 17 C.P.C for amendment in the plaint,

amendment to North boundary as “vanka” by deleting the word

“forest” as also the Southern boundary as the “cart track in

Yanamalagunta” by deleting the word “vanka” in the plaint

schedule.

8. The 3rd respondent defendant/ petitioner filed

objection/counter requesting to dismiss the I.A. He submitted

inter alia that the plaintiff and the defendants had divided orally

in the year 1988 with regard to the land in Sy.No.576/1 to an

extent of Ac.4.96 cents with the suit schedule mentioned

property and in the said partition Ac.1.18 cents was allotted to

each of them. The 3rd defendant sold his share to the 2nd

respondent/2nd defendant and the plaintiff also sold his share

to the 2nd respondent/2nd defendant and the possession was

also delivered to the 2nd defendant. It was further submitted

that in the written statement a plea was taken that the

description of the suit schedule property was in correct and the

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5

suit schedule property was not a joint family property. The

proposed amendment will change the nature and the character

of the suit and by amendment, the plaint schedule property

shall be shifted into the property of the said defendant No.3.

9. The learned I Additional Junior Civil Judge, Chittoor

allowed the application by order dated 16.03.2023.

10. The learned I Additional Junior Civil Judge, Chittoor, held

that the pleadings in the counter of the defendants raised rival

issues and whether the 3rd defendant is having absolute right

over the petition schedule property shall be decided only after

the evidence and it cannot be decided at this stage. The court

cannot go into the merits of the case of the parties at this stage.

The counter averments are the defence taken in the main suit

but there is no denial with regard to the wrong mentioning of

the boundaries by the plaintiff. It further held that by

amendment of the plaint schedule, it will not cause any

prejudice and will not change neither the cause of action nor

the nature of the suit and the same would avoid the further

multiplicity of the proceedings.

11. Learned counsel for the petitioner advanced the same

submissions as were advanced before the trial court that the

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plaint schedule property is not the joint property, the partition

had already taken place and the plaintiff has no cause of action

to get the partition.

12. I have considered the submissions advanced and perused

the material on record.

13. The submissions as advanced relate to the merit of the

suit. It cannot be considered at this stage. The learned trial

court was right in observing that the plea raised by the

defendant can be decided only after adducing the evidence in

trial. The nature of the suit is not changed by such amendment

as it still remain the suit for partition. The change in the

Northern and Southern boundaries, even if it results in

inclusion of such property, which according to the

petitioner/defendant is not liable to be partitioned not being the

joint property, such a question cannot be gone into at this

stage. If such property is not to be partitioned, is a matter to be

considered at the stage of trial.

14. The petitioner himself in para No.11 of the counter raised

the plea that the description of the suit schedule property as

given by the plaintiff was incorrect.

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15. Consequently, the application was filed for amendment in

the plaint with respect to the North and South boundary of the

plaint schedule property to correct the same which application

has been allowed.

16. The order of the learned trial court also avoids further

multiplicity of the proceedings inasmuch as if the suit proceeds

on the description of the plaint schedule property by the

boundaries towards North and South, unamended, it may lead

to future multiple proceedings. In the trial court, it shall always

be open for the defendants to prove that the paint schedule

property as amended by the boundaries under the order of

amendment is not liable for partition for the pleadings and the

grounds raised in the written statement.

17. Learned counsel for the petitioner placed reliance in Life

Insurance Corporation of India v. Sanjeev Builders Private

Limited and another1, to contend that when the prayer for

amendment is malafide or by the amendment the other side

losses a valid defence, the prayer for amendment is generally

not to be allowed.

1

AIR 2022 SC 4256

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18. In Life Insurance Corporation of India (supra), the Apex

Court held as under in para 70 by summing up the final

conclusions.

“70. Our final conclusions may be summed up thus:

(i) Order II Rule 2 CPC operates as a bar against a

subsequent suit if the requisite conditions for application

thereof are satisfied and the field of amendment of pleadings

falls far beyond its purview.

The plea of amendment being barred under Order II Rule 2

CPC is, thus, misconceived and hence negatived.

(ii) All amendments are to be allowed which are necessary

for determining the real question in controversy provided it

does not cause injustice or prejudice to the other side. This

is mandatory, as is apparent from the use of the word

“shall”, in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper

adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other

side,

(b) by the amendment, the parties seeking amendment does

not seek to withdraw any clear admission made by the party

which confers a right on the other side and

(c) the amendment does not raise a time barred claim,

resulting in divesting of the other side of a valuable accrued

right (in certain situations).

(iv) A prayer for amendment is generally required to be

allowed unless

(i) by the amendment, a time barred claim is sought to be

introduced, in which case the fact that the claim would be

time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

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(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid

defence.

(v) In dealing with a prayer for amendment of pleadings, the

court should avoid a hyper technical approach, and is

ordinarily required to be liberal especially where the

opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a

more satisfactory decision, the prayer for amendment

should be allowed.

(vii) Where the amendment merely sought to introduce an

additional or a new approach without introducing a time

barred cause of action, the amendment is liable to be

allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is

intended to rectify the absence of material particulars in the

plaint.

(ix) Delay in applying for amendment alone is not a ground

to disallow the prayer. Where the aspect of delay is

arguable, the prayer for amendment could be allowed and

the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or

the cause of action, so as to set up an entirely new case,

foreign to the case set up in the plaint, the amendment

must be disallowed. Where, however, the amendment

sought is only with respect to the relief in the plaint, and is

predicated on facts which are already pleaded in the plaint,

ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement

of trial, the court is required to be liberal in its approach.

The court is required to bear in mind the fact that the

opposite party would have a chance to meet the case set up

in amendment. As such, where the amendment does not

result in irreparable prejudice to the opposite party, or

divest the opposite party of an advantage which it had

secured as a result of an admission by the party seeking

amendment, the amendment is required to be allowed.

Equally, where the amendment is necessary for the court to

effectively adjudicate on the main issues in controversy

between the parties, the amendment should be allowed. (See

Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC

OnLine Del 1897)”

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19. Learned counsel for the petitioner placed emphasis on

point No.(iv),(iii) and (iv). It has been held by the Hon’ble Apex

Court that the prayer for amendment is generally required to be

allowed unless the prayer for amendment is malafide or by the

amendment, the other side loses a valid defence.

20. I find that there is no plea of malfidee taken to disallow

the amendment before the trial court.

21. So far as the other side losing valid defence is concerned,

the defence of the petitioner in the written statement is that the

plaint schedule property is not liable to be partitioned as his

case is that the partition had already taken place and the

property does not belong to the plaintiff. The same defence is

still available to the petitioner in the suit with respect to the

plaint schedule property even after amendment. So, there is no

question of the petitioner loosing a valid defence.

22. Both the civil revision petitions have no merit and are

accordingly dismissed. No order as to costs.

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Consequently, the miscellaneous petitions, if any, pending

in the petition shall stand closed.

_________________________

RAVI NATH TILHARI, J

Date:18.07.2023

Note:

L.R copy to be marked.

B/o.

Gk

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 THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

CIVIL REVISION PETITION Nos.1637 & 1638 OF 2023

Date: 18.07.2023

Gk

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