CRP/5785/2015 of K V Siva Sakar Vs K N Vannamma on 31 December 2015

ORDER:

Petitioner is plaintiff in O S No. 113 of 2008. He filed I A No. 123 of2014 under Order 6 Rule 17 CPC seeking amendment of the plaint. Onelaborate consideration of the contentions of the petitioner and principles oflaw on the subject, the Court below dismissed the petition.

2. The suit is of the year 2008. Written statement was filed by thedefendant in the year 2009 disputing the claim of the plaint schedule itselfand stating that the plaint schedule property does not contain the boundariesand plaint schedule is not capable for identification. In the cross examinationof PW.1 also this question was specifically posed and he says that petitioner-plaintiff does not know the boundaries of the suit property. Evidencerecorded long ago, written submissions were also filed and at the stage ofpronouncement of judgement, petitioner filed this application seekingamendment of plaint to bring in the boundaries of the suit scheduleproperties. On detailed consideration of the matter, I.A was dismissed.

3. Learned counsel for petitioner placing reliance on the decision of the this Court in P DURGA REDDY Vs B.YADI REDDY[[1]] contended thateven at this stage, it is permissible to amend the plant, amendment of theplaint would not cause any prejudice to the defendants and Trial Court oughtto have allowed the petition filed by the petitioner. Learned counsel drawnthe attention of the Court to para 9 of the judgment, which reads as under:

“9. The law succinctly laid down from the expressions is thatthe requirement of satisfying the due diligence concept for the trialonce commenced and in particular for post trial amendment is amandatory requirement being a pre-requisite, besides the other considerations, where the amendment is necessary to resolve thereal controversy and where does not cause grave prejudice orinjustice to the other side and where it does not alter the cause ofaction or inconsistent to the existing material in the pleadings onrecord. It can be allowed where the amendment is necessary toexplain the material on record.”

Analysis

4. Plaintiff should be diligent in projecting his case properly andmake all pleadings necessary in support of the relief sought. The provisioncontained in Order 6 Rule 17 of CPC, enables trial Court to permitamendment of the plaint in the facts of given case, provided such amendmentwould not cause prejudice to the other party and such application was madeat early stage of the suit. In the instant case, the suit was instituted in theyear 2008 and as early as in the year 2009 objection was taken bydefendants on maintainability of the claim. In the cross examination, thisobjection was specifically raised and deposition show admission of thefactum of not disclosing the boundaries. At least at that stage plaintiff oughtto have been diligent. At the fag end of the case, when the matter is at thestage of passing judgment, the petition for amendment of plaint cannot beentertained. Quietus to the litigation should be given and this kind of dilatorytactics should not be encouraged. Normally, amendment of the plaint aftercommencement of trial cannot be allowed, except in exceptionalcircumstances where if the plaintiff seeking amendment of the plaint, makesout a case that in spite of due diligence he could not cover the aspect andthat amendment is necessary. Even in such cases, such a plea can beaccepted, if no prejudice is caused to the other side. Even in P. DURGAREDDY, the judgment relied upon by the learned counsel for petitioner, thisCourt held that such amendment should necessarily resolve the realcontroversy and should not cause prejudice or injustice to the other side andshould not alter the cause of action or inconsistency to the existing material.

5. In the instant case, as noticed above, there is no such duediligence exercised by the petitioner. He was sufficiently put on notice of thespecific objection. It cannot be said that prejudice would not be caused toother side. Amendment if allowed would alter the cause of action and isinconsistent to the existing material and the pleadings on record. Thus, atthis stage permitting the petitioner to amend the pleadings is not in the interest of justice. I, therefore, do not see any error in the decision of the trialCourt warranting interference of this Court.

6. Revision fails and accordingly the same is dismissed. No costs. Consequently, miscellaneous petitions, if any stand closed.

DATE: 31.12.2015TVK

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P.NAVEEN RAO,J

DATE: 31.12.2015

[1]2015 (1) LS 201