CRP/5666/2009 of Irala China Malakondaiah Vs The Christian Progressive Front Coluntary Organisation on 30 December 2010

ORDER:

This civil revision petition is filed under Article 227 ofConstitution of India, aggrieved by the order, dated 29.09.2009,passed by the learned Senior Civil Judge, Kavali, in I.A.No.140 of2009 in O.S.No.31 of 2007.

2. The petitioner herein is the plaintiff in the suit in O.S.No.31of 2007. The said suit is filed seeking the relief of permanentinjunction, restraining the defendants and their men frominterfering with his possession and enjoyment of plaint scheduleproperty i.e. vacant site of 48 Ankanams of land situated atDantamvari street in Ramamurthypet of Kavali town in NelloreDistrict. The said relief is sought for on the ground that theproperty in question originally belong to Juwet Memorial Church,Ongole, and the said Church, in consultation and with the consentof Telugu Baptist Church, Kavali, sold the plaint schedule propertyto the plaintiff for a sum of Rs.1,44,000/- and executed aregistered sale deed on 04.11.1992. It is the case of thepetitioner-plaintiff that though he is in possession of the suitschedule property by virtue of the aforesaid purchase,respondents are interfering with his possession. In the said suit,written statement is filed stating that the plaintiff is not inpossession of the suit schedule property and the vendor of theplaintiff had no right to sell the suit schedule property alleging thathis settler has not given salable right to the vendor of the plaintiff.

It was pleaded in the written statement that the suit scheduleproperty is in possession of tenants.

3. In the aforesaid suit, issues were framed and evidencewas also started. On behalf of plaintiff, PW-1 was examined inchief and he was also partly cross-examined, and thereafter, thepresent application in I.A.No.140 of 2009 is filed under Order 6Rule 17 read with Sections 94(e) and 151 of C.P.C., praying theCourt to permit the petitioner-plaintiff to amend his plaint by addingparas 13, 15-A and 16-A to the plaint. By virtue of the reliefsought for, the petitioner pleaded for amendment, stating thatinspite of the injunction orders granted earlier in his favour,respondent-defendants have trespassed into the plaint scheduleproperty, as such, he sought amendment to add the relief ofdeclaration of title of plaintiff with regard to the suit scheduleproperty and also for recovery of possession, by valuing the suitschedule property at Rs.15,55,200/- being 3/4[th] of the marketvalue under Section 24(a) of the Court Fee and Suit Valuation Act. The said application is opposed by filing counter affidavit. In thecounter, it is the case of respondent-defendants that the presentapplication is filed with all false allegations and if the relief ofamendment is allowed, it will change the nature of the suit. It isalso pleaded that the relief sought for possession is barred bylimitation, as such, they opposed the application on the ground thatthe Court below has no jurisdiction to entertain the application atthis stage.

4. In the application in I.A.No.140 of 2009, no oral ordocumentary evidence is let in, but the Court below, byconsidering the plea of the petitioner and the respondent-defendants, has rejected the application by impugned order. TheCourt below has taken the view that PW-1 was examined already and in cross-examination, he admitted that he was not inpossession of the suit schedule property as on the date of filing ofthe suit and the claim for recovery of possession is barred bylimitation. By recording so, rejected the application by impugnedorder. Hence, this revision petition.

5. Heard Sri M.S.Ramachandra Rao, learned counsel forpetitioner, Sri P.Rajasekhar, learned counsel appearing forrespondents 1 and 2 and Sri T.C.Kishan, learned counselappearing for respondent No.3.

6. In this revision petition, it is contended by the learnedcounsel for petitioner Sri M.S.Ramachandra Rao, that to avoidmultiplicity of proceedings, the Court below ought to have allowedthe application for amendment as sought for. It is submitted thatthe issue, namely, whether the suit is barred by limitation or not, isa triable issue and the Court below erred in rejecting theapplication on the ground that the claim for recovery of possessionis barred by limitation. The learned counsel, in support of hisargument, relied on the judgments of this Court in Gomi Bai Vs.Uma Rastogi[[1]], in Raghu Thilak D.John Vs. S.Rayappan[[2]], inSajjan Kumar Vs. Ram Kishan[[3]]and in Usha Devi Vs. RijwanAhmad[[4]].

7. On the other hand, it is submitted by the learned counselappearing for respondents that there is no error of jurisdictioncommitted by the Court below in passing the impugned order,rejecting the application filed by the petitioner for amendment, assuch, there are no grounds to interfere with the impugned order inexercise of powers under Article 227 of the Constitution of India. It is submitted by the learned counsel that in view of theexplanation which is added by way of amendment to Order 6 Rule 17 of CPC., this application for amendment is not permissible atthis stage. It is submitted that in the suit, trial has alreadycommenced and PW-1 was examined in part and in the cross-examination, he has clearly admitted that he was not inpossession of the suit schedule property on the date of filing of thesuit, and in that view of the matter, there is no reason orjustification in seeking for amendment at this stage. It is submittedthat such an amendment is sought for only to withdraw theadmission made in the cross-examination and to get over the same. The learned counselhas relied on the judgments of this Court in JangiliVenkateswarlu Vs. Bandaru Omkaraiah[[5]],in RajkumarGurawara (dead) through L.Rs. Vs. M/s.S.K.Sarwagi & Co. Pvt.Ltd.[[6]]and in Vidyabai Vs. V.Padmalatha[[7]].

8. Before I advert to the contentions of the learned counselappearing for the parties, I deem it appropriate to refer to theprovision under Order 6 Rule 17 of C.P.C., under which, theapplication is filed by the petitioner before the Court below,seeking amendment. Prior to the amendment of Order 6 Rule 17,the Court was empowered at any stage of the proceedings, toallow the application to alter or amend the pleadings in suchmanner and on such terms as may be just and necessary for thepurpose of determining the real questions in controversy betweenthe parties, but however, by way of amendment, a proviso isadded to the same, which reads as under:

“Provided that no application for amendment shall beallowed after the trial has commenced, unless the courtcomes to the conclusion that inspite of due diligence, theparty could not have raised the matter before thecommencement of trial”.

In the instant case, the suit was filed in the year 2007 and afterframing the issues for trial, the evidence was already started.

PW-1 was already examined in chief and he was also cross-examined. It is appropriate to refer to the portion which is relevantin the deposition of the cross-examination of PW-1, which readsas under:

“It is true that defendants are in possession andenjoyment of the suit schedule property even now. It istrue even now as on the date of my filing the suit,defendants were in possession and enjoyment of theschedule property”.

It is the specific case of respondents that after cross-examination,wherein PW-1 has admitted that the plaintiff was not in possessionof suit schedule property even as on the date of filing of the suitfor injunction simplicitor, the petitioner has come up with theapplication as a measure of damage control. Although it is thecase of the petitioner that as he was dispossessed inspite ofinjunction, he filed the application for amendment sought for, butfrom the cross-examination of PW-1, it is clear that he hasadmitted that the defendants were in possession even as on thedate of filing of the suit. In that view of the matter, particularly, inview of the explanation, which is added by way of amendment toOrder 6 Rule 17 C.P.C., the petitioner cannot get over theexplanation so as to seek amendment at this stage. Although it iswell settled that merits of the case, which is added by way ofamendment, cannot be gone into at the stage of considering theapplication for amendment, but if this practice is allowed,definitely, this will cause prejudice to the case of the respondent-defendants. A party who has admitted in the cross-examinationthat he was not in possession of property on the date of filing ofthe suit, under the guise of amendment, seeks to avoid the findingto be recorded by the Court against him. As it is also pleaded bythe respondent-defendants that if the amendment is allowed, inview of the pecuniary jurisdiction and value of the suit, the Court below will not be having jurisdiction, and in such an event, andkeeping the object of explanation which is added to Order 6 Rule17 C.P.C., as there are no compelling reasons to get over theexplanation, this application is rightly rejected by the Court below.

9. Coming to the judgments relied on by the learnedcounsel for petitioner, in the case of Gomi Bai (1 supra), a learnedSingle Judge of this Court has held that the amendment affected toorder 6 Rule 17 C.P.C. would not apply to the pleadings in the suitfiled long prior to 01.07.2002 and further held that typographicalerrors can be corrected by way of amendment at any time. In thecase of Raghu Thilak D.John (2 supra), the Hon’ble SupremeCourt has held that the dominant purpose of Order 6 Rule 17 wasto minimize the litigation. In the said judgment, initially, a suit wasfiled for permanent injunction restraining the defendants fromdemolishing his compound wall, but alleging that during thependency of proceedings, defendant has entered his property anddemolished the wall, sought for amendment as relief for damages. While allowing the application for amendment, the Apex Court hasheld that the Courts, while dealing with such applications, shouldnot take hypo-technical approach and the applications should beconsidered liberally. In the case of Sajjan Kumar (3 supra), thedescription of the suit property was sought to be amended. TheHon’ble Supreme Court has held that the proposed amendment isnecessary to bring the real question in controversy between theparties to the fore and has held that refusal to permit suchamendment will create needless complications during theexecution proceedings. Further, in the case of Usha Devi (4supra), the Hon’ble Supreme Court has held that the trial of thesuit would commence with the settlement of issues and tomaintain an application under Order 6 Rule 17 of C.P.C., one hasto prove that inspite of due diligence, he could not have raised the matter before the commencement of trial.

10. The aforesaid judgments relied on by the learned counselfor petitioner would not render any assistance in support of hiscase. Primarily, an application under Order 6 Rule 17 C.P.C. hasto be considered with reference to the facts of each case and alsotaking into account the stage of the proceedings, keeping in mindthat if such an amendment is allowed, can it cause any prejudiceto the case of the other party. In the present case, it is to be seenthat the suit is of 2007 and when the matter is coming up for trialnearly after two years of filing, after cross-examination of PW-1, inwhich he has deposed that defendants were in possession even onthe date of filing of the suit, the present application is filed. In thatview of the matter, there is no reason or plausible explanation topermit the amendment at this stage, in view of the explanationadded to Order 6 Rule 17 of C.P.C. No case is made out by thepetitioner to show that inspite of due diligence, he could not takesuch step for amendment before the commencement of trial. Inthat view of the matter, and in view of the categorical admission ofPW-1 that defendants were in possession of suit scheduleproperty on the date of filing of the suit, there is no reason orjustification for filing the application in I.A.No.140 of 2009 at thisstage.

11. On the other hand, coming to the judgments relied on bythe learned counsel for respondents, in the case of JangiliVenkateswarlu (5 supra), a Division Bench of this Court hascategorically held that while exercising discretion under Order 6Rule 17, amendment can be permitted at any stage of theproceedings, and it is always essential for the Court to bear inmind that such amendment would not cause prejudice to the otherside, which could not be compensated in costs. Applying the ratiolaid down in the said case, it is clear that as much as PW-1 has

admitted in the cross-examination that defendants were inpossession as on the date of filing of the suit, if the amendment isallowed, definitely, it will cause prejudice to the case of therespondent-defendants, which cannot be compensated in costs, assuch, the judgment relied on by the learned counsel appearing forrespondents will support their case.

12. Further, reliance is also placed in the case ofRajkumar Gurawara (6 supra), wherein, the Hon’ble SupremeCourt has held that pre-trial amendments are to be allowedliberally than those sought to be made after commencement oftrial. Similarly, in the case of Vidyabai (7 supra), when the HighCourt has granted leave to amend the Written Statement afterplaintiff has filed affidavit in lieu of chief examination, while settingaside the order of High Court, the Hon’ble Supreme Court has heldthat the trial commences on the date when issues are framed, andtherefore, the order of the trial Court refusing amendment neithersuffers from jurisdiction nor error of law. The aforesaidJudgments relied on by the learned counsel for respondent-defendants will support their case.

13. In the present case, although it is pleaded that the issue oflimitation is an issue which is triable after the amendment isordered, but that by itself is no reason to allow the amendment. Even according to the petitioner, if the amendment is permitted,the pecuniary jurisdiction of the Court will be changed, and theparty, who is subjected to jurisdiction having filed the suit, aftercross-examination, cannot be allowed to seek amendment, whichwill ooze the very jurisdiction. As this Court is of the consideredopinion that the amendment as sought for will cause seriousprejudice to the case of respondents and there is also no plausibleexplanation as contemplated under proviso to Order 6 Rule 17 of

C.P.C., and further, in the absence of any error of law orjurisdiction committed by the Court below in rejecting theapplication for amendment, I do not find any illegality whichwarrants interference under Article 227 of the Constitution ofIndia.

14. For the aforesaid reasons, the revision petition is devoid ofmerit and it is accordingly dismissed. No order as to costs.

__________________

R.SUBHASH REDDY, J

30[th] December 2010

ajr

[1]2005 (2) ALD 631[2](2001) 2 SCC 472[3](2005) 13 SCC 89[4]AIR 2008 SC 1147[5]2003 (3) ALT 612 (D.B)[6]AIR 2008 SC 2303[7]AIR 2009 SC 1433