IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.2124 of 2012 BETWEEN The Chirala Municipality, Rep. by its Commissioner, Chirala.
... PETITIONER AND Dr. Dasari Bala Sankara Rao and another.
...RESPONDENTS The Court made the following: ORDER:
Defendant No.1 in O.S.No.3 of 2006 on the file of the Judge, Family Court cum Additional District Judge, Ongole has questioned the order in I.A.No.44 of 2012 in O.S.No.3 of 2006 dated 18.02.2012.
2. By the aforesaid order, the trial Court has permitted the first respondent/plaintiff to amend the plaint so as to enable him to plead alternatively for consequential relief of delivery of possession of the suit schedule property from the defendants.
3. Petitioner states that the first respondent filed O.S.No.3 of 2006 seeking relief of declaration of title that he is the absolute owner of the plaint schedule property and sought consequential permanent injunction restraining the defendants from interfering with the same.
Petitioner states that in the said suit the plaintiff has specifically pleaded that he is in possession and enjoyment of the property. However, now the petitioner is seeking a quite contrary relief of possession by way of amendment. Petitioner also contended that the plaintiff has taken a specific plea of being in possession and as such, when the written statement was filed long back nothing prevented the first respondent/plaintiff from showing due diligence and requesting amendment before the trial Court long before commencement of the trial. Evidently, the trial in the suit is over and arguments of both sides are also advanced. At that stage, the plaintiff came up with the present application. The Court below considered the said objections on the plea of the first respondent/plaintiff and found that the respondent/plaintiff is only seeking proposed alternative relief to avoid multiplicity of litigation and on that ground allowed the application.
4. Learned counsel for the petitioner submits that the Court below has not kept in mind the proviso to Order VI Rule 17 of the Code of Civil Procedure and that even in the absence of plaintiff pleading and establishing due diligence, the Court below has allowed the amendment at a belated stage.
Learned counsel placed strong reliance upon a decision of the Supreme
[1]
Court in VIDYABAI v. PADMALATHA wherein the Supreme Court considered the application of the defendant for amendment of written statement after commencement of trial and it was specifically held in para 10 that proviso to Order VI Rule 17 CPC being couched in a mandatory form the Court’s jurisdiction to allow the said application is taken away unless the conditions precedent therefor are satisfied viz. it may come to a conclusion that in spite of due diligence the parties could not have raised the matter before commencement of trial.
5. Learned counsel, therefore, submits that in the affidavit filed by the first respondent/plaintiff due diligence is neither pleaded nor is made out and only by stating that to avoid future litigation, the alternative relief is claimed. Learned counsel states that even the order of the Court below does not deal with the aspect of due diligence, which is essential, to be established by a party seeking amendment after trial.
6. Learned counsel for the first respondent/plaintiff, on the contrary, submits that the said alternative plea was necessitated only to avoid multiplicity of proceedings and that no trial is necessary to be conducted. The said plea was, therefore, rightly allowed by the trial Court as it would avoid multiplicity of proceedings between the same parties and on the same cause of action. Learned counsel supports his contentions by placing reliance upon the decision of the Supreme Court in ABDUL REHMAN v.
[2]
MOHD, RULDU where the Supreme Court held that guiding principles relating to Order VI Rule 17 CPC should ensure that amendments, which are necessary for the purpose of determining the real questions in controversy between the parties and when necessary pleadings are already on record, the relief sought on the said basis would not change the nature of the suit so also a change in the nature of the relief shall not be considered as a change in the nature of the suit.
7. I have considered the respective contentions. It is, no doubt, true that the pleading as to due diligence is not specifically found in the affidavit of the first respondent. However, in order to avoid future litigation and multiplicity of proceedings, the first respondent/plaintiff claims he was advised to claim alternative relief of declaration and consequential possession. It is specifically averred that the evidence available on record is sufficient and there is no further trial required by way of oral or documentary evidence. The fact that evidence is already on record and that the first respondent, who is seeking amendment, specifically states that no further trial or no further oral or documentary evidence is required, in my view, the alternative relief can be granted so as avoid multiplicity of proceedings as held by the Supreme Court in ABDUL REHMAN’s case (2 supra).
8. Evidently, seeking of alternative relief is purely based on legal advice and is only a claim made as an alternate to the relief sought for. Diligence of party in such case would only be based on legal advice then tenderered and later advised. Since no factual issue is raised and the proposed amendment would neither alter the claim nor cause of action of the plaintiff and as such, the discretion exercised by the trial Court in allowing the amendment cannot be said to be perverse and as such, no interference with the order impugned is warranted.
The civil revision petition is accordingly dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 19, 2014 DSK
[1] (2009) 2 SCC 409
[2] 2013 (1) ALD 1 (SC)