CRP/5050/2011 of Patan Ayub Khan, Vs W.R. Jagadeesan, on 31 December 2012

ORDER:

In this Civil Revision Petition (C.R.P) assailed order dated 23-09-2011 passed in I.A.No.1899 of 2011 in O.S.No.10 of 2003 on thefile of the Court of Principal Senior Civil Judge, Rajampet (I.A).

2. The petitioner herein is the first petitioner in the I.A and firstdefendant in the suit whereas the first respondent herein is therespondent in the I.A. and plaintiff in the suit, and the secondrespondent herein is the second petitioner in the I.A. and seconddefendant in the suit. For convenience sake in refer the parties asarrayed in the suit.

3. The plaintiff filed the suit for declaration of his title andconsequential relief of permanent injunction in respect of the suitschedule property (property). The defendants filed the I.A. under OrderVI Rule 17 C.P.C. for the amendment of their written statement. Theclaim of the defendants 1 and 2 is that the first of them purchased theproperty on 30-01-2003 from the second of them who was the true andlawful owner of the property and immediately the first of them was putinto the possession of the property. The second defendant filed writtenstatement in the suit which was adopted by the first defendant. Thebasis for the claim of the plaintiff in the suit is that his father purchasedthe property whereas he succeeded to the property/ alternatively heacquired title to the property by adverse possession. According to thedefendants while adducing evidence they deposed that in 1995 theplaintiff entered the house without any permission and consent of thesecond of them after the tenant of the second of them namely Mr.Mahaboob Basha vacated it. It is also claimed by them that theydeposed that the second of them gave permission to the plaintiff to stayin the house on compassion grounds. Further they also deposed thatthe plaintiff was thrown out of the property by the second defendant and his friends and relatives in January, 2003 whereby the seconddefendant had seized the possession of the property before he soldthe property to the first of them on 30-01-2003 and immediately delivered the possession of the propertyaccordingly. Further they also deposed that in the second week ofMarch, 2003 the plaintiff illegally broke open the lock and key of thehouse and then trespassed into the property with the aid of police. Further in the plaint itself the plaintiff clearly admitted that the first ofthem was in possession and enjoyment of the property by the date offiling suit whereas the same address of the first of them was also givenin the plaint. Accordingly, the defendants sought for the amendment ofthe written statement filed by the first of them which was adopted bythe second of them.

4. The claim of the plaintiff is that the defendants 1 and 2 gotno prerogative to effect the proposed amendment. Already the trial ofthe suit completed and the matter was posted for advancingarguments. By virtue of the proviso under VI Rule 17 C.P.C. no suchapplication should be filed after the commencement of trial unless theCourt comes to the conclusion that inspite of due diligence the partycould not take necessary steps in time which is not the case here. Apart from that by virtue of Order VIII Rule 6A, necessary counter claimcan be made but such a possibility is barred by limitation in this case. Further if the proposed amendment is allowed, it would hijack theoriginal pleadings and also take away the corresponding benefitsaccrued to him in the suit. Hence, he pleads for the dismissal of theI.A.

5. The Court below after hearing the parties dismissed the I.A.on the ground that it was filed at a belated stage when the suit wasposted for arguments. By virtue of the proviso under Order VI Rule 17C.P.C. the defendants were precluded to seek the amendment of thewritten statement after the commencement of trial unless they couldestablish that inspite of due diligence they failed to take necessary

measures at the outset which was not the case. Being aggrieved bythat order, this C.R.P. has been filed.

6. Order VI Rule 17 C.P.C. enjoins “The Court may at anystage of the proceedings allow either party to alter or amend hispleadings in such manner and on such terms as may be just, and allsuch amendments shall be made as may be necessary for the purposeof determining the real questions in controversy between the partiesprovided that no application for amendment shall be allowed after thetrial has commenced, unless the Court comes to the conclusion thatinspite of due diligence, the party could not have raised the matterbefore the commencement of trial.”

7. Thereby by virtue of the proviso under Order VI Rule 17C.P.C. no application for the amendment shall be allowed after the trialhas commenced unless the Court comes to the conclusion that inspiteof due diligence the party could not take up the matter before thecommencement of trial. Importantly the defendants have been seekingfor the proposed amendment by virtue of the said evidence recordedwhen they were examined before the Court as DWs.1 and 2.Therefore, the question of not having any knowledge about thosecircumstances at the time of filing the written statement would not ariseat all. There is also no plea to that effect from them. Hence, the veryplea taken by them is hit by the proviso to Order VI Rule 17 C.P.C. Inaddition to that, no amendment can be carried out just on the basis ofthe evidence that was adduced with regards to the issues raised in thesuit. There should be strong basis to do so.

8. The Court below rightly dismissed the I.A. I do not find anygrounds to interfere with the impugned order.

9. Accordingly, the Civil Revision Petition is dismissed. Nocosts.

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

Date: 31-12-2012

YCR

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G. KRISHNA MOHAN REDDY, J