CRP/4917/2012 of Achanta Triupura Sri Vs Achanta Venkata Satyanarayana, on 31 December 2012

ORDER:

In this Civil Revision Petition (C.R.P) assailed order dated 29-08-2012 passed in I.A.No.1399 of 2012 in O.S.No.323 of 2009 on thefile of the Court of Additional Senior Civil Judge, Eluru, West GodavariDistrict (I.A).

2. The petitioners herein are also the petitioners in the I.A.and plaintiffs in the suit whereas the respondents herein are also therespondents in the I.A. and defendants in the suit. For conveniencesake, I refer the parties as arrayed in the suit.

3. The plaintiffs filed the suit for permanent injunctionrestraining the defendants from interfering and occupying the plaintschedule property. They filed the I.A. under Order VI Rule 17 C.P.C.and Rule 28 of Civil Rules of Practice to amend the plaint as pleadedin the petition. The claim of the plaintiffs is that in the written statementfiled by the defendants they denied the title of the first of them over theproperty by reason of which it is advisable to amend the plaint byinserting para-10(A) and also replacing para 13(a), (b) and (c) deletingthe relief of permanent injunction and adding the reliefs “The firstplaintiff is the absolute owner of the plaint schedule property and grantpermanent injunction restraining the defendants, their men and agentsfrom ever interfering with the plaintiffs’ possession and enjoyment ofthe plaint schedule property.”

4. The plea of the defendants is that the I.A. was filed after alapse of three years. By allowing the proposed amendment in theplaint, the nature of the suit would be changed. Further the reliefprayed for is barred by limitation as it was filed at a belated state. If thepetition is allowed much prejudice would be caused to them. Hence,they requested to dismiss the petition.

5. The Court below dismissed the I.A. taking recourse underthe proviso to Order VI Rule 17 C.P.C., which provides that noapplication for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite ofdue diligence the party could not have raised the matter before thecommencement of trial, observing that no explanation was given aboutthe delay caused in filing the application having clear knowledgeabout it.

6. Learned counsel for the plaintiffs would submit that mainlyit is to be seen that justice is administered to both parties. Theamendment of pleadings can be allowed at any stage of the relevantproceeding whereas the main motto in doing so is administration ofproper justice to those concerned. In fact by allowing the proposedamendment, no prejudice will be caused to the other party, further thenature of the suit will not be changed because the evidence to berecorded for the relief of permanent injunction is also same for therelief of declaration of title of the property and also the relief ofconsequential injunction whereas on the other hand that is necessaryin view of the denial of the title of the plaintiffs in the written statementfiled by the defendants. Further by introducing the plea of declarationalong with the consequential relief of injunction, all the controversiesbetween the parties will be decided once for all which is to bewelcomed. In support of his contentions he has relied upon thedecisions in RAJESH KUMAR AGGARWAL v. K.K. MODI[[1]]and C.LAXMI DEVI v. S. ABDUL RAHIMAN[[2]].

7. On the other hand learned counsel for the defendants hasupheld the observations made by the Court below. He hasvehemently argued that by allowing the proposed amendment thenature of the suit will be changed whereas on the other hand greatprejudice will be caused to the defendants by reason of which thatplea should be dismissed.

8. It is necessary to extract Order VI Rule 17 C.P.C. whichenjoins – “The Court may at any stage of the proceedings allow eitherparty to alter or amend his pleadings in such manner and on suchterms as may be just, and all such amendments shall be made as may

be necessary for the purpose of determining the real questions incontroversy between the parties, provided that no application foramendment shall be allowed after the trial has commenced, unless thecourt comes to the conclusion that inspite of due diligence, the partycould not have raised the matter before the commencement of trial.”Definitely the proviso was included to avoid filing of unnecessaryapplications to amend the pleadings mainly for the purpose ofprotracting the court litigations and also causing unnecessary hardshipto the opposite parties to the litigations. But it cannot be countenancedthat the purport of the legislation in framing the proviso would be todefeat even genuine claims of making necessary amendment. Thereby what is to be seen is as to whether the proposed amendmentmade is sought to be incorporated with bona fide intentions and alsofor the purpose of setting all the controversies between the parties withregards to the suit property. If that purpose is achieved by doing so,certainly the plea is to be accepted and is to be put into effect.

9. Significantly the object of the Rule is that the Courts shouldtry the merits of the case that come before them and consequentlyallow all the amendments that may be necessary for determining thereal questions in controversy between the parties provided it does notcause injustice or prejudice to the other side. Significantly the Rulealso declares that the Court may at any stage of the proceedings alloweither party to alter or amend the pleadings in such a manner and onsuch terms as may be just, subject to that it should be necessary forthe purpose of determining the real question in controversy betweenthe parties.

10. I n K.K. MODI’s case (1 supra), a suit was filed inconnection with a trust seeking declaration, permanent injunction,mandatory injunction and other reliefs in that behalf. Furtherconsequent upon the filing of written statement by the defendantstherein, an amendment was sought to be made with regards to thestatus of the trust including the question of deriving any benefit fromthe creation of it and so on.

The Supreme Court examining the scope of the Rule held as follows:

“The object of the Rule is that the Courts should try the merits of thecase that come before them and should consequently allow allamendments that may be necessary for determining the real questionin controversy between the parties provided it does not causeinjustice or prejudice to the other side.

Order 6 Rule 17 consists of two parts. Whereas the first partis discretionary (may) and leaves it to the Court to order amendmentof pleading. The second part is imperative (shall) and enjoins theCourt to allow all amendments which are necessary for the purposeof determining the real question in controversy between the parties.

In our view, since the cause of action arose during thependency of the suit, proposed amendment ought to have beengranted because the basic structure of the suit has not changed andthat there was merely change in the nature of relief claimed. We failto understand if it is permissible for the appellants to file anindependent suit, why the same relief which could be prayed for inthe new suit cannot be permitted to be incorporated in the pendingsuit.

As discussed above, the real controversy test is the basic orcardinal test and it is the primary duty of the Court to decide whethersuch an amendment is necessary to decide the real dispute betweenthe parties. If it is, the amendment will be allowed; if it is not, theamendment will be refused. In cases like this, the Court should alsotake notice of subsequent events in order to shorten the litigation, topreserve and safeguard the rights of both parties and to subserve theends of justice. It is settled by a catena of decisions of this Courtthat the rule of amendment is essentially a rule of justice, equity andgood conscience and the power of amendment should be exercisedin the larger interest of doing full and complete justice to the partiesbefore the Court.

While considering whether an application for amendmentshould or should not be allowed, the Court should not go into thecorrectness or falsity of the case in the amendment. Likewise, itshould not record a finding on the merits of the amendment and themerits of the amendment sought to be incorporated by way ofamendment are not to be adjudged at the stage of allowing the prayerfor amendment. This cardinal principle has not been followed by theHigh Court in instant case.

The Court always gives leave to amend the pleadings of aparty unless it is satisfied that the party applying was acting malafide. There is a plethora of precedents pertaining to the grant orrefusal of permission for amendment of pleadings. The variousdecisions rendered by this Court and the proposition laid down thereinare widely known. This Court has consistently held that theamendment to pleading should be liberally allowed since proceduralobstacles ought not to impede the dispensation of justice.”

11. The supreme Court also considered another decision inJA I JAI RAM MANOHAR LAL v. NATIONAL BUILDING MATERIAL[3]SUPPLY, with regards to the question of negligence and mala fides while taking such plea of introducing an amendment in the pleadings and held:

“The party who sought the amendment cannot be refused just reliefmerely because some mistake, negligence, inadvertence or eveninfraction of the rules of procedure took place.

The Court always gives leave to amend the pleadings of a party,unless it is satisfied that the party applying was acting mala fide, orthat by his blunder he had caused injury to his opponent which maynot be compensated for by an order of costs. However negligent orcareless may have been the first omission and however late theproposed amendment has been, the amendment may be allowed if itcan be made without injustice to the other side.”

12. The Supreme Court also referred the decision in [4]B.K. NARAYANA PILLAI v. PARAMESWARAN PILLAIin whichconsidered the decisions in CHARAN DAS v. AMIR KHAN[[5]],

L.J. LEACH & CO. LTD v. JARDINE SKINNER & CO[[6]], GANGA BAI v.[7][8]VIJAY KUMARand GANESH TRADING CO. v. MOJI RAMand observed:

“The purpose and object of Order 6 Rule 17 is to allow either party toalter or amend his pleadings in such manner and on such terms asmay be just. The power to allow the amendment is wide and can beexercised at any stage of the proceedings in the interests of justiceon the basis of guidelines laid down by various High Courts and thisCourt. It is true that the amendment cannot be claimed as a matterof right and under all circumstances. But it is equally true that theCourts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general ruleparticularly in cases where the other side can be compensated withthe costs. Technicalities of law should not be permitted to hamperthe Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled formultiplicity of litigation.”

13. In C. LAXMI DEVI’s case (2 supra), this Court held:

“It is needless to say that the merits and demerits and thetruth or otherwise of the stand taken in the proposed amendmentneed not be gone into at the stage of amendment of pleadings andthe same may have to be decided at the appropriate stage. The maingrievance ventilated by the counsel for the revision petitioner is thatinasmuch as the order in pursuance of which the report and thesketch were filed by the Deputy Inspector of survey and LandRecords itself having been set aside by this Court in C.R.P.No.2225of 2005, the same cannot be made the foundation praying foramendment of pleading. On a careful scrutiny of the avermentsmade in the affidavit in support of the application it is true that thesaid fact also had been pleaded and accordingly, appropriate relief had been prayed for and in the overall facts and circumstances of thecase the learned Judge to avoid multiplicity of litigation had thought itjust and proper to allow the proposed amendment. It is needless tosay that the validity or otherwise and the impact of the order passedin the C.R.P. aforesaid and the other relevant facts definitely can beurged at the appropriate stage during the trial by the revisionpetitioner. …..”

14. With regards to the application of the proviso what isnecessary at the outset is that the trial of the suit has not beencommenced. It is not the case of the parties that the trial of the suit isalready commenced. Thereby the question of application of theproviso does not arise at all. Consequently the question of applyingdue diligence to seek for the amendment also does not arise. Apartfrom that the question of delay cannot be the sole criteria whileconsidering the merits of the proposed amendment. Further it is soughton the ground that the defendants in their written statement questionedthe title of the plaintiffs over the property which necessitates them toprove the same questions. In addition to that for the purpose ofdeciding the question of permanent injunction or for the purpose ofdeciding the question of declaration of title over the property togetherwith the consequential relief of permanent injunction, no differentevidence need to be adduced by the parties.

So without any hesitation I hold that by introducing the new relief, thenature of the suit will not be changed and on the other hand noprejudice will be caused to the other side whereas on the other handall the controversies between the parties in respect of the suit propertywill be resolved in the suit.

The defendants will have equal opportunity of adducing necessaryevidence for establishing their claim. They should not thereby shirk orfear when the plaintiffs seeks for the introduction of the proposedamendment.

15. The Court below failed to appreciate the matter properly. Hence, the impugned order is liable to be set aside.

16. Accordingly, the Civil Revision Petition is allowed. Theimpugned order is set aside. Consequently I.A.No.1399 of 2012 is allowed. No costs.

17. Consequent upon the disposal of the C.R.P.,miscellaneous petitions pending, if any, shall stand closed.

Date: 31-12-2012YCR

_________________________

G. KRISHNA MOHAN REDDY, J

[1](2006) 4 SCC 385[2]2006(1) ALT 4

[3](1969) 1 SCC 869(1969) 1 SCC 869

[4](2000) 1 SCC 712(2000) 1 SCC 712

[5]AIR 1921 PC 50AIR 1921 PC 50[6]AIR 1957 SC 357AIR 1957 SC 357

[7](1974) 2 SCC 393(1974) 2 SCC 393

[8](1978) 2 SCC 91