THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY CIVIL REVISION PETITION No.4895 of 2013 Dated: 11.07.2014 Between:
A. Krishna Rao .. Petitioner and Sri A. Narahari Rao and others .. Respondents Counsel for the Petitioner: Mr. B. Chandrasen Reddy Counsel for Respondents 1 & 8: Mr. P. Venugopal Counsel for Respondent No.5: Mr. Satyanarayana Reddy Bongurala Counsel for Respondents 6 & 7: Mr. N. A. Jairaj The Court made the following:
ORDER:
This civil revision petition arises out of order dated 31.10.2013 in I.A.No.554 of 2013 in O.S.No.148 of 2009 on the file of the learned XI Additional District Judge (FTC), Ranga Reddy District.
I have heard Mr. B. Chandrasen Reddy, learned counsel for the petitioner, Mr. P. Venugopal, learned counsel appearing for respondents 1 and 8, Mr. B. Satyanarayana Reddy, learned counsel for respondent No.5, and Mr. N. Jairaj, learned counsel appearing for respondents 6 and 7.
All the learned counsel submitted that respondents 2 to 4 are sailing with the petitioner and, hence, there is no need for service of notice on them.
The short issue that arises for consideration in this revision petition is ‘whether the order under revision rejecting the petitioner’s application for amendment of the plaint is in conformity with the provisions of the Code of Civil Procedure?’.
The petitioner is the plaintiff in the above-mentioned suit filed for partition of items 1 to 28 of ‘B’ schedule lands by metes and bounds, granting 20% share each to the plaintiff and defendant No.1 etc. The other reliefs sought in the suit are not relevant for the purpose of the present case. In paragraph 8 of the plaint, the petitioner pleaded that on 14.02.1996, the parties to the suit entered into a Memorandum of Understanding, agreeing to divide/settle the schedule ‘A’ and ‘B’ properties among themselves, that in view of the subsequent settlement, some of the terms of which are totally inconsistent with the terms of Memorandum of Understanding dated 14.02.1996, the subsequent Memorandum of Understanding and its terms and conditions prevail over the earlier family settlement dated 06.03.1995. In I.A.No.554 of 2013, the petitioner sought amendment of paragraph 8 in the plaint by substituting the words “prevail over” with the words “are in continuation of”. The contesting respondents resisted the said application by stating that the proposed amendment will change the entire pleadings and the same is inconsistent with the original plea. The trial Court accepted the plea of the contesting respondents and rejected the application. In rejecting the application of the petitioner, the lower Court has purportedly placed reliance on the judgments in
[1]
Kantham Narasimha Reddy v. Buchaiah a n d Alimineti
[2]
Sadanandam v. Daripelly Narayana Charyulu . It has also observed that in support of his plea that the later document was entered into in continuation of the previous document, the petitioner has not placed any piece of evidence or any single reason as to why and for what purpose the said amendment has to be carried out and that the petitioner cannot be permitted to raise inconsistent pleas.
In the first place, it needs to be observed that at the stage of amendment, the Court is not concerned with the prima facie evidence to prove the proposed pleadings. All that the Court needs to see is whether by permitting the amendment, the plaintiff introduced a new cause of action or the proposed amendment alters the nature and character of the suit altogether. Indeed, Order VI Rule 17 of C.P.C. per se does not prescribe any restrictions on the Court permitting amendment except to the extent that the party who seeks amendment shall satisfy the Court that in spite of due diligence, he could not have raised the matter before the commencement of trial. However, by way of judicial precedents, the Courts have laid down various parameters for exercising the power by the Court under Order VI Rule 17 of C.P.C.
[3]
I n Sampath Kumar Vs. Ayyakannu and another th e Apex Court demarcated a line between the pre-trial and post-trial amendments and held that in the former cases, the Courts must be more liberal in allowing amendment of pleadings as the opposite party will have more opportunities to rebut the amended pleadings than in the latter cases. While holding that the delay in filing the application for amendment by itself does not constitute the sole ground for its rejection, it has held that the delay shall not be reckoned from the date of filing the suit but it should be calculated by taking into account the stage to which the hearing in the suit has proceeded.
[4]
In Rajesh Kumar Agarwal Vs. K.K. Modi , the Supreme Court held that the underlying object of Rule 17 of Order VI CPC is that the Court should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real questions in controversy between the parties provided it does not cause injustice or prejudice to the other side. The Apex Court, on the analysis of the provision, held that it consists of two parts; that the first part is discretionary and the second part is imperative and enjoins the Court to allow all the amendments which are necessary for the purpose of determining the real questions in controversy between the parties.
In M/s. Modi Spinning & Weaving Mills Co. Ltd. and another
[5]
Vs. M/s. Ladha Ram & Co. the Supreme Court while holding that inconsistent pleas can be made in the pleadings, however, held that while allowing such pleadings, a party shall not be allowed to displace the pleadings constituting admissions made by the defendants in the written statement. It has held that if such amendment is permitted, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.
It is trite that the plaintiff who raises his pleadings needs to prove the same. By merely permitting an amendment, the Court will not be readily accepting what he says as correct. Even if the proposed amendment has the effect of raising a conflicting plea, that by itself would not constitute ground to reject the amendment, for it is for the plaintiff to ultimately justify his pleadings and prove the same with reference to evidence. After all, procedure is handmaid of justice and a party cannot be deprived of his right to raise pleadings by way of amendment, unless the proposed amendment results in failure of justice.
No doubt, as pointed out by the learned counsel for respondents 1 and 8, the petitioner failed to plead that despite due diligence, he could not seek amendment before the commencement of trial. However, that is not the ground on which the lower Court has rejected the application for amendment. It is stated, at the hearing, that the trial has not been effectively commenced except that an affidavit in lieu of chief-examination is filed.
In the above facts and circumstances, this Court is of the opinion that in the interests of justice, the petitioner can be permitted to amend the plaint.
Accordingly, the order of the lower Court is set aside and the petitioner is permitted to amend the plaint. However, the contesting respondents are entitled to file additional written statement on the amended pleadings. The suit being of the year 2009, the lower Court shall dispose of the same within one year from the date of receipt of this order.
Subject to the above observations and directions, the civil revision petition is allowed.
As a sequel to disposal of the civil revision petition, interim order dated 19.12.2013 is vacated and C.R.P.M.P.No.6722 of 2013 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY, J 11th July, 2014 L.R. copies IBL/AM
[1] 1999 (1) ALT 313
[2] 2007 (3) ALT 624
[3] (2002) 7 SCC 559 = AIR 2002 SC 3269
[4] (2006) 4 SCC 385
[5] (1976) 4 SCC 320