CRP/1990/2018 of OGGU ANANDA KUMAR (DIED) Vs TAMMU VIAJYA LAKSHMI on 29 December 2023

ORDER:

HON'BLE SRI JUSTICE NYAPATHY VIJAY

C.R.P.NO.1990 of 2018

The present Revision Petition is filed against the interlocutory orderdated 03.02.2018 passed in I.A.No.943 of 2015 in O.S.No.l486 of 2012on the file of the Court of the Learned III Additional Senior Civil Judge,Vijayawada, Krishna District.

2. Thepetitionershereinare the defendantsinthe mainsuit.Originally the suit was filed by the plaintiff seeking to declare the SaleDeed dated 03.10.2012 as null, void, unenforceable, liable to be set asideandfor consequentialrelief of permanent injunctionrestrainingthedefendants from interfering with the peaceful possession and enjoymentof the plaintiff over the suit schedule property.Originally the suit was filed by the plaintiff seeking to declare the SaleDeed dated 03.10.2012 as null, void, unenforceable, liable to be set asideandfor consequentialrelief of permanent injunctionrestrainingthedefendants from interfering with the peaceful possession and enjoymentof the plaintiff over the suit schedule property.

3. The facts leading to the suit are that the plaintiff had approachedthe 1"^ defendant for availing loan of Rs.25,000/- andin that context,the 1"^ defendant contemplated a condition to execute General Power ofAttorney (for short "G.P.A") with regard to the agricultural landin thenameof the1®^ defendant. Theplaintiffleft without anyalternativeexecutedtheG.P.Aandthe same wasregisteredon04.03.2010.The plaintiff agreed to pay the loan amount with interest @ 24% p.a.

4. It was further pleaded that theplaintiff was not allowedto gothrough the contents of the G.P.A and the plaintiff subsequently calledupon thedefendant to cancel the G.P.A and return the original TitleDeed, as the plaintiff is ready to discharge the entire[debt][ with][ interest.]As thedefendant disagreed, the plaintiff got issuedaNotice dated28.09.2012calling upon thedefendant to return the originalTitleDeed dated 22.01.2009, while canceling the G.P.A. Though[the]noticewas received there was no response. Subsequently, the plaintiff came toknow that thedefendant with fraudulent motive prepared to sell awaythe plaint schedule property and had executed a registered Sale Deed,dated 03.10.2012 in favour of the 2"^ defendant. It was also pleaded thatallavermentsmadeintheG.P.A-cum-AgreementofSale,dated04.03.2010 are incorrect. Hence, the suit was filed.through the contents of the G.P.A and the plaintiff subsequently calledupon thedefendant to cancel the G.P.A and return the original TitleDeed, as the plaintiff is ready to discharge the entire[debt][ with][ interest.]As thedefendant disagreed, the plaintiff got issuedaNotice dated28.09.2012calling upon thedefendant to return the originalTitleDeed dated 22.01.2009, while canceling the G.P.A. Though[the]noticewas received there was no response. Subsequently, the plaintiff came toknow that thedefendant with fraudulent motive prepared to sell awaythe plaint schedule property and had executed a registered Sale Deed,dated 03.10.2012 in favour of the 2"^ defendant. It was also pleaded thatallavermentsmadeintheG.P.A-cum-AgreementofSale,dated04.03.2010 are incorrect. Hence, the suit was filed.

5. The defendants filed a written statement denying the[averments]made in the plaint. While so, the plaintiff filed an application under Order6 Rule 17 of C.P.C seeking to amend the plaint with regard to the reliefclaimed.Byvirtueof amendment,theplaintiff soughttoaddPara11-A where under additional pleadings were urged with regardto thefraud played by thedefendant in executing the Agreement[of Sale-]cum-General Power of Attorney, dated 04.03.2010 and that the plaintifffiled a complaint before the Commissioner of Police against the defendantmade in the plaint. While so, the plaintiff filed an application under Order6 Rule 17 of C.P.C seeking to amend the plaint with regard to the reliefclaimed.Byvirtueof amendment,theplaintiff soughttoaddPara11-A where under additional pleadings were urged with regardto thefraud played by thedefendant in executing the Agreement[of Sale-]cum-General Power of Attorney, dated 04.03.2010 and that the plaintifffiled a complaint before the Commissioner of Police against the defendant Nos.l & 2 and a Writ Petition was alsofiled beforethis Court for adirectionagainstthePoliceauthorities.Intheprayerportion,theamendment to cancelthe Agreement of Sale-cum-GeneralPowerofAttorney, dated 04.03.2010 was sought.

6. The defendants filed their counter opposing the same andtheprimary objection taken by the defendants was that the amendmentisbarred by limitation, as the Agreement of Sale-cum-General Power ofAttorney, dated 04.03.2010, which was sought to be canceled by virtueof amendment dated 27.10.2015.

7. The Trial Court vide its order dated 03.02.2018 allowed thesameand was of the opinion that the question of limitationcanbe madesubject matter of issue after allowing the amendment. Hence, the CivilRevision Petition by the defendants.and was of the opinion that the question of limitationcanbe madesubject matter of issue after allowing the amendment. Hence, the CivilRevision Petition by the defendants.

8. HeardMr.KeerthiTeja,Kondaveeti,LearnedCounselforthePetitionersandSriV.S.R.Anjaneyulu,LearnedCounselfortheRespondents.

9. The point for considerationis whether a claim barred by limitationcould be sought by way of an amendment of plaint under Order VI Rule17 of C.P.C.could be sought by way of an amendment of plaint under Order VI Rule17 of C.P.C.

10. A reading of the original plaint at Para 5 shows that the GeneralPower of Attorney dated 04.03.2010 was obtained without allowing theplaintiff to go throughthecontentsof the documentandthatthedefendants in spite of plaintiff's offering to discharge the loan amount didnot come forward to cancel the document. Apart from the fact that theplaintiff issued a Notice dated 28.09.2012 calling upon the 1^ defendantto return the original Title Deed, while cancelling the General Power ofAttorney. It was further pleaded that the purpose of the G.P.A was onlyas a security for the loan taken by the plaintiffs and not for the purposeof the G.P.A indicates. These averments are indicative of mischief beingplayed on the plaintiff and though the prayer was sought only to declarethe consequential Sale Deed dated 03.10.2012 asnullity,there werebasic pleadings to declare the G.P.A dated 04.03.2010asfraudulentthough the prayer was not explicitly sought. The amendment thatissought now only elaborates the fraud perpetuated by[the][ defendants][ in]executing the disputed G.P.A dated 04.03.2010 and an explicit prayerwith regard to the G.P.A.Power of Attorney dated 04.03.2010 was obtained without allowing theplaintiff to go throughthecontentsof the documentandthatthedefendants in spite of plaintiff's offering to discharge the loan amount didnot come forward to cancel the document. Apart from the fact that theplaintiff issued a Notice dated 28.09.2012 calling upon the 1^ defendantto return the original Title Deed, while cancelling the General Power ofAttorney. It was further pleaded that the purpose of the G.P.A was onlyas a security for the loan taken by the plaintiffs and not for the purposeof the G.P.A indicates. These averments are indicative of mischief beingplayed on the plaintiff and though the prayer was sought only to declarethe consequential Sale Deed dated 03.10.2012 asnullity,there werebasic pleadings to declare the G.P.A dated 04.03.2010asfraudulentthough the prayer was not explicitly sought. The amendment thatissought now only elaborates the fraud perpetuated by[the][ defendants][ in]executing the disputed G.P.A dated 04.03.2010 and an explicit prayerwith regard to the G.P.A.

11. The question of amendment of pleadings raising claims barred bylaw of limitation was a subject of numerous case laws and the most oftenquoted oneisL.J. Leach And Company Ltd vs Jardine Skinnerlaw of limitation was a subject of numerous case laws and the most oftenquoted oneisL.J. Leach And Company Ltd vs Jardine Skinner And Co./to the effect that Courts as a rule decline amendments that arebarred by limitation on the date of application, but the issue of limitationis only a factor to be taken into consideration in exercise of discretion ofthe Court to permit or deny such an amendment.

12. The discretion given to Courts to permit amendment of time barredclaims was fine tuned to the effect that those amendments which do notintroduce a new claim for the first time after the expiry of the period oflimitation could be allowed.claims was fine tuned to the effect that those amendments which do notintroduce a new claim for the first time after the expiry of the period oflimitation could be allowed.

13. TheobservationofHon'bleSupremeCourtinPirgondaHongonda PatU Vs Kalgonda Shidgonda PatU and 2 other^[after]referringtocaseLawtillthatpointoftimeopinedatpara 11 reads as under;Hongonda PatU Vs Kalgonda Shidgonda PatU and 2 other^[after]referringtocaseLawtillthatpointoftimeopinedatpara 11 reads as under;

11. The same principles, we hold, should apply to thepresent case.The amendments do not really introduce[a]new case and the application filed by the appellant[himself]showed that he was not taken by surprise nor did he[have][ to]meet a new claim set up for the first time after the expiry ofthe period of limitation.

14. Similar views were takenin Vineet Kumar vs. MangalSainWadhere^ at Para 16;in South Konkan Distilleries and Anrvs.Prabhakar Gajanan Naik and Ors^ at Para 15 and in Pankaja[&][ Anr]vs. Yellappa (D) By Lrs. & Ors^ at Para 18.

15. Similarly view was also expressed by the Hon'ble Supreme[Court][ in]Lie Vs Sanjeev Builders Pvt. Ltd./. The Para 26 thereof is extractedfor ready reference.Lie Vs Sanjeev Builders Pvt. Ltd./. The Para 26 thereof is extractedfor ready reference.

"26. But undoubtedly, every case and every application[for]amendmenthastobetestedintheapplicablefactsandcircumstances of the case. As the proposed amendment of thepleadings amounts to only a different or an additional approach tothe same facts, this Court has repeatedly laid down the principlethat such an amendment would be allowed even after the expiry ofstatutory period of limitation."

16. In the light of the principles in the above quoted case laws, theelaboration of pleadings and consequential prayer sought by way ofamendment being only an extension of the original pleadings,[this][ Court]is of the opinion that amendment introducing claims, whicharetimebarred, could be allowed, as there is factual basis in the original plaintand no new caseis beingset up by the plaintiff to the surprise ofdefendants.elaboration of pleadings and consequential prayer sought by way ofamendment being only an extension of the original pleadings,[this][ Court]is of the opinion that amendment introducing claims, whicharetimebarred, could be allowed, as there is factual basis in the original plaintand no new caseis beingset up by the plaintiff to the surprise ofdefendants.

^ 1984 (3) see 3842008 (14) see 632^2004 (6) see 415"2023 see Online 1128

]//

17. The Civil Revision Petition is therefore devoid of merits and is liable to be dismissed. There shall be no order as to costs. As a sequel, pendingapplications, if any, shall stand closed.

SD/- M SRINIVASASSISTANT^P^TRAR

//TRUE COPY//

-^^SECTI^N OFFICER

One fair copy to the Hon'ble Sri Justice Nyapathy Vijay(for His Lordship’s Kind Perusal)

To,

1. The III Additional Senior Civil Judge, Vijayawada,[Krishna][ District.]2.The Under Secretary, Union of India, Ministry of Law,[Justice][ and]2.The Under Secretary, Union of India, Ministry of Law,[Justice][ and]

Company Affairs, New Delhi.

3. The Secretary, A.P.Advocates’ Association Library, High Court Buildings High Court of Andhra Pradesh.

4.9 LR.Copies

5. One CC to Sri Ravi Kondaveeti, Advocate [OPUC]

One CC to Sri V S R Anjaneyalu, Advocate [OPUC]

6.

7. The Section Officer, V.R. Section, High Court of A.P.[at][ Amaravathi.]

8. Three CD Copies

sree

HIGH COURT

DATED:29/12/2023

ORDERnCRP.No.1990 of 20183 0 APR 2023C'DISMISSING THE C.R.P.WITHOUT COSTS

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