CRP/2011/2024 of VANAPALLI VENKATA RAMANA MURTHY Vs SAROJINI SAHU on 31 December 2024

ORDER

The plaintiff in the suit filed the above revision[against][ the][ order]dated 30.04.2024 in I.A.No.47 of 2023 in O.S.No.154[of][ 2014][ on][ the][ file]<ofII Additional Junior Civil Judge-cum-Judicial MagistrateofIClass,Special Mobile Court, Srikakulam.

2. Heard Sri S.V.S.S.Siva Ram, learned counsel for petitioner[and][ Sri]P.V.Raghu Ram, learned counsel for respondents 1 to[3.]

3. The 4‘^ respondent is son of 3'^^ respondent.Notice against 4**^respondent was not served. Sri P.V.Raghu Ram, learned counsel wouldsubmit that 4*^ rfespondent is out of the country.respondent was not served. Sri P.V.Raghu Ram, learned counsel wouldsubmit that 4*^ rfespondent is out of the country.

4. The plaintiff filed suit O.S.No.154 of 2014, initially on thefile ofPrincipal Junior Civil Judge,Srikakulam, for declarationoftitleandconsequential perpetual injunction. The defendants1 and 2 filed writtenstatement and have been contesting the suit. The suit was transferred totheII Additional Junior Civil Judge-cum-Judicial Magistrate ofI Class,Special Mobile Court, Srikakulam.

5. The plaintiff filed I.A.No.47 of 2023 under Order VI Rule 17 andSection 151 of CPC r/w Rule 28 of Civil Rules of Practiceto amend theplaint by inserting sub-para (k) and to add few lines in renamed para (I)by inserting “for removal of such illegal construction in the encroachedplaint ‘ABCD’ schedulesiteby mandatoryinjunctiondirectingthedefendants to remove the illegal constructions and for delivery ofvacantpossession of the same to the plaintiff’ and consequential prayer

6. In the affidavit filed in support of the said petition,it was contendedthat the suit was transferred on 26.09.2019. The suit was coming up fortrial. The defendants took advantage and illegally occupied thesite onEast-West side: 5 feet and North-South: 1272 feet, described as ABCD inthe plaint plan and rough sketch and constructed three-storied buildingpending the suit and hence, this application is filed.

7. Therespondents1and2filedcounterandopposedtheapplication.It was contended that the plaintiff filed I.A.No.417 of 2014seeking temporary injunction and the same was dismissed.After longtime, the present application is filed for, wrongful gain.ABCD markedandopposedtheapplication.It was contended that the plaintiff filed I.A.No.417 of 2014seeking temporary injunction and the same was dismissed.After longtime, the present application is filed for, wrongful gain.ABCD marked

V.

portion is a part and parcel of the site purchased by 1®* ‘respondent andeventually, prayed to dismiss the writ petition.

8. ThetrialCourtbyorderdated30.04.2024dismissedtheapplication. The trial Court proceeded on the ground[that][ suit][ was][ filed][ on]31.07.2014; that the suit record was received from the Principal JuniorCivilJudge,Srikakulamon04.12.2020andthepresentapplicationseeking amendment was filed on 27.03.2023.In the absence of anyspecific details as the date on which cause of action arose,it will bedifficult to calculate the limitation. The plaintiff failed to provide materialproof of encroachment and construction pending the suit and eventuallydismissed the petition.application. The trial Court proceeded on the ground[that][ suit][ was][ filed][ on]31.07.2014; that the suit record was received from the Principal JuniorCivilJudge,Srikakulamon04.12.2020andthepresentapplicationseeking amendment was filed on 27.03.2023.In the absence of anyspecific details as the date on which cause of action arose,it will bedifficult to calculate the limitation. The plaintiff failed to provide materialproof of encroachment and construction pending the suit and eventuallydismissed the petition.

9. TheHon’bleApexCourtin LifeInsuranceCorporationofIndia Vs. SanjeevBuildersPvt.Ltd ^,afterconsideringnumerousprecedents in regard to the amendment of pleadings,[culled out][ certain]principles;—India Vs. SanjeevBuildersPvt.Ltd ^,afterconsideringnumerousprecedents in regard to the amendment of pleadings,[culled out][ certain]principles;—

(i) All amendments are to be allowed which are necessary for determiningthe real question in controversy providedit does not cause injustice orprejudice to the other side. This is mandatory, as is apparent from theuse of the word “shall”, in the latter part of Order[VI][ Rule 17][ of][ the][ CPC.]the real question in controversy providedit does not cause injustice orprejudice to the other side. This is mandatory, as is apparent from theuse of the word “shall”, in the latter part of Order[VI][ Rule 17][ of][ the][ CPC.](ii) In the following scenario such applications should be ordinarily allowedif the amendmentisforeffectiveandproperadjudicationofthecontroversy between the parties to avoidmultiplicity of proceedings,providedit does not result in injustice to the other[side,]if the amendmentisforeffectiveandproperadjudicationofthecontroversy between the parties to avoidmultiplicity of proceedings,providedit does not result in injustice to the other[side,]

(iii) Amendments, while generally should be allowed,[the][ same][ should][ be]disallowedif -disallowedif - (a) 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.to withdraw any clear admission made by the party which[confers a]right on the other side.

(b) The amendment does not raise a time-barred claim, resulting in thedivesting of the other side of a valuable accrued right (in certainsituations)divesting of the other side of a valuable accrued right (in certainsituations)

(c) The amendment completely changes thenature of the suit;nature of the suit; (d) The prayer for amendment is malafide, (e) By the amendment, the other side should not lose a valid defence.

(iv) Some general principles to be kept in mind are (0 The court should avoid a hyper-technical approach: ordinarily beItberal, especially when the opposite party can be compensated byItberal, especially when the opposite party can be compensated bycosts.

(II) Amendment may be justifiably allowed where it is intended to rectify is intended to rectifythe absence of material particulars in the plaint or introduceanadditional or a new approach.additional or a new approach.

(Ill) The amendment should not change the cause of action, so as toset up an entirely new case, foreign to thecase set up in the plaint.set up an entirely new case, foreign to thecase set up in the plaint.

10. In the case at hand, the plaintiff filed the suit for declaration andconsequential perpetual injunction. The applicationseeking amendmentwas filed alleging that after the suitwas transferred to the present Court,taking advantage the defendants occupied thevacant land on East-Westside; 5 feet and North-South; 1214 feet.As seen from the affidavit thetrial of the suit has not been commenced. the suit for declaration andconsequential perpetual injunction. The applicationseeking amendmentwas filed alleging that after the suitwas transferred to the present Court,taking advantage the defendants occupied thevacant land on East-Westside; 5 feet and North-South; 1214 feet.As seen from the affidavit thetrial of the suit has not been commenced.

t'11.Whether the relief for mandatory injunctionis barred by limitationor not is a disputed question of fact and law.By the amendment thenature of the suit will not be changed. By allowingamendment, thedefendants will be givenan opportunity to file additional written statementand the dispute will be resolved and multiplicity of proceedings alsocanbe avoided. The Trail Court ought to haveseen that the evidence in thesuitwasnot commenced.shouldhaveallowedtheInterlocutoryapplicationseekingamendment.Itisnotthecaseoftheis barred by limitationor not is a disputed question of fact and law.By the amendment thenature of the suit will not be changed. By allowingamendment, thedefendants will be givenan opportunity to file additional written statementand the dispute will be resolved and multiplicity of proceedings alsocanbe avoided. The Trail Court ought to haveseen that the evidence in thesuitwasnot commenced.shouldhaveallowedtheInterlocutoryapplicationseekingamendment.Itisnotthecaseofthe \

defendants/respondents that a right,if any, accrued is taken away by theamendment. ThetrialCourt,sincefailedtoexercisethe jurisdictionvested with it, this Court deems is appropriate to[allow][ the][ revision.]

12. Accordingly, the Civil Revision Petition is allowed, setting aside theorder dated 30.04.2024 in I.A.No.47 of 2023 in O.S.No.154 of 2014onthe file ofII Additional Junior Civil Judge-cum-Judicial Magistrate ofIClass,SpecialMobileCourt,Srikakulam.I.A.No.47of2023standsallowed, subject to payment of costs of Rs.2,000/- (Rupees two thousandonly) by the plaintiff to defendants1 and 2 within four weeks from today.On such payment, the plaintiff shall file a memo before the trial Court.Ifthe respondents/defendants decline to receive the costs, the plaintiff shalldeposit the amount before the Mandal/District Legal Services Authority,Srikakulam and file a memo before the trial Court. The plaintiff shall alsofile amended copy of plaint within two weeks as mandated under OrderVIRule18of CPC.ThetrialCourtshallprovideopportunitytodefendants to file additional written statement,if any, within a reasonabletime.ThetrialCourtshallalsotakestepstodisposethesuitasexpeditiously as possible, since the suit is of the year 2014.No costs.order dated 30.04.2024 in I.A.No.47 of 2023 in O.S.No.154 of 2014onthe file ofII Additional Junior Civil Judge-cum-Judicial Magistrate ofIClass,SpecialMobileCourt,Srikakulam.I.A.No.47of2023standsallowed, subject to payment of costs of Rs.2,000/- (Rupees two thousandonly) by the plaintiff to defendants1 and 2 within four weeks from today.On such payment, the plaintiff shall file a memo before the trial Court.Ifthe respondents/defendants decline to receive the costs, the plaintiff shalldeposit the amount before the Mandal/District Legal Services Authority,Srikakulam and file a memo before the trial Court. The plaintiff shall alsofile amended copy of plaint within two weeks as mandated under OrderVIRule18of CPC.ThetrialCourtshallprovideopportunitytodefendants to file additional written statement,if any, within a reasonabletime.ThetrialCourtshallalsotakestepstodisposethesuitasexpeditiously as possible, since the suit is of the year 2014.No costs.

As a sequel, pending miscellaneous petitions,if any,shall standclosed.

SDI- K SRINIVASA RAJUASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

1. The II Additional Junior Civil Judge - cum - Judicial Magistrate ofIClass, Special Mobile Court, Srikakulam.Class, Special Mobile Court, Srikakulam.

2. One CC to Sri S.V.S.S.Siva Ram, Advocate [OPUC]

3. One CC to Sri P.V. Raghu Ram, Advocate [OPUC]

4. Three CD Copies

HIGH COURTDATED;31/12/2024

ORDER

CRP.No.2011 of 2024

ALLOWING THE C.R.P.WITHOUT COSTS

??X0 9 JAN 2025oCo.^ . Current Section'V/

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