* THE HON’BLE SRI JUSTICE M. SEETHARAMA MURTI CIVIL REVISION PETITION No. 5439 OF 2012 21.01.2014
Between
# Dr. Balabolu Ramesh, s/o Late. Smt. Sashibhushanamma and others … Petitioners
$ Savanna Radharamanamma, w/o Late Krishna Kesava Rao and others
...Respondents
! COUNSEL FOR PETITIONERS: Sri A. Ananda Rao
^ COUNSEL FOR RESPONDENTS : Sri Venkateswarlu Posani
< Gist:
> Head Note:
? CITATIONS: 2010(4) ALD 479 2006(3) ALD 614
THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No. 5439 of 2012
ORDER:
This civil revision petition, under Art 227 of the constitution of India, by the plaintiffs, is directed against the orders dated 05.10.2012 of the learned Special Judge, for trial of cases under Schedule Castes and Schedule Tribes (POA) Act-cum-Addl. District & Sessions Judge, Srikakulam, made in Memo dated 25.04.2012 filed by the 9th defendant in OS No.24 of 2011.
2. The introductory facts are as follows.
The revision petitioners / plaintiffs filed a suit against the defendants for partition of the plaint schedule properties by metes and bounds into twelve equal shares and for allotment of the shares as per entitlement of the parties as stated in the plaint and for other reliefs. Among the other defendants, the 9th defendant / 9th respondent herein filed a written statement resisting the suit. The 9th defendant had also filed a memo with the following averments:
“The plaintiffs had arrayed the 9th defendant in the plaint with the name Kota Sahitya, son of Kota Meher Kumar. The 9th defendant was arrayed as a party with the same name in the interlocutory applications filed by the plaintiffs. The Court may be pleased to direct the plaintiffs to mention this 9th defendant’s name in the cause titles of the plaint and the interlocutory applications as ‘Doosa Sahitya Balaram, Adopted Son of Late Doosa Adinarayana Rao.’” The plaintiffs had filed their objections to the memo and opposed the request made by the 9th defendant in the aforementioned memo. The trial Court by the impugned orders directed the plaintiffs to amend the plaint by showing the name of the 9th defendant as Doosa Sahitya Balaram, alias Kota Sahitya. In the impugned orders while giving such a direction, the trial Court had further observed that the said order is made without prejudice to the rights and contentions and that the merits of adoption and other points of law would be considered at a later stage.
3. Aggrieved of the said orders, the plaintiffs filed this revision petition.
4. I have heard the submissions of the learned counsel for the revision petitioners / plaintiffs and 9th respondent / 9th defendant. The other respondents / defendants are stated to be not necessary parties. I have given a detailed and thoughtful consideration to the facts and submissions.
5. The important question is as to whether the plaintiffs can be directed to amend their plaint in regard to the description of the 9th defendant in the cause titles of the pleadings as requested in the memo filed by the 9th defendant.
6. Learned counsel for the plaintiffs would contend that the plaintiffs are the masters of their plaint pleadings and they are entitled under facts and law to make averments in the plaint according to their stand and that if the defendant has any objection / defence to the averments in the plaint, the defendant is equally entitled under facts and law to take necessary defence by making necessary averments in the written statement and that on such pleadings and counter pleadings if any issue arises for determination, the same would be framed and would be determined on merits after full fledged trial, but the defendant is not entitled to dictate terms and seek directions to amend the plaint to suit his defence.
7. The learned counsel for the 9th defendant would submit that the 9th defendant is the adopted son of Late Doosa Adinarayana and that there is record to support the said contention and, therefore, the trial Court had accepted the request of the 9th defendant in the memo and had passed the impugned orders having regard to facts and circumstances and hence, the said orders do not call for any interference in view of the fact that the trial Court while accepting the request of the 9th defendant had made observations in the order to protect the interests of both parties.
8. As rightly contended by the learned counsel for the plaintiffs, the plaintiffs are entitled to design their pleadings and make averments in the plaint according to their stand and in support of the reliefs claimed in the plaint. If the defendants do not admit any of the averments in the plaint, it is for them to deny such averments and take a specific stand of their own in their written statement by making necessary averments in support of their defence. If some facts are averred and are denied, issues for determination would arise, and in such circumstances, the trial Court is obliged to frame necessary issues for trial and determine the same on merits. Therefore, the averments touching the adoption and the denial thereof need not be prejudged. The 9th defendant can as well take a defence in his written statement stating that his description in the cause titles of the pleadings of the plaintiffs is not correct and he also can state his defence by mentioning his correct name and details according to his stand. But by filing a memorandum and not even a petition supported by an affidavit, the 9th defendant is not entitled, under facts and law, to request the trial Court to direct the plaintiffs to amend the plaint so as to suit his defence, which is subject to a decision on merits in the suit. Further, an amendment of a pleading, cannot be directed on a request made in the memorandum as the procedure for seeking amendments of pleadings is dealt with under Order VI Rule 17 of the Code.
9. In the light of the facts and discussion coupled with reasons, this Court is of the well considered view that the 9th defendant cannot ask for amendment of the plaint even with the leave of the Court and that if he had any grievance about the incorrect mention of his name and other details in the cause titles of the plaint and plaintiffs’ pleadings, he can as well plead the same in the written statement to bring the said facts to the notice of the Court and also request the Court to frame necessary issue and let in evidence in support of his defence and further request the Court to determine the issue in accordance with facts and law. The law is well settled that the plaint can be amended by the plaintiff with the leave of the Court by following the procedure contemplated under law or by the Court suo motu, if the facts of the case so warrant, but the plaint cannot be directed to be amended at the request of the defendants. The above view of this Court, finds support from the ratios in the decisions in A.SUDERSHAN REDDY AND OTHERS v A. JAGGA [1] REDDY AND OTHERS and CHILAKANI VENKATA RAO [2] v CH. LAKSHMAN RAO .
10. Viewed thus, this Court finds that the impugned order which is contrary to law calls for interference.
11. Accordingly, the civil revision petition is allowed without costs, and the impugned order is set aside. Miscellaneous petitions, if any, pending in this civil revision petition shall stand closed.
JUSTICE M. SEETHARAMA MURTI 21st January, 2014 ksm
[1] 2010(4) ALD 479
[2] 2006 (3) ALD 614