THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 434 OF 2011 Dated:04-07-2014 Between:
Shahnaz Fatima ... PETITIONER AND Hidayath Ali .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 434 OF 2011 ORDER:
The respondent filed O.S No. 1132 of 2009 in the Court of IX Junior Civil Judge, City Civil Court, Hyderabad against the petitioner for the relief of perpetual injunction. The trial of the suit commenced and the recording of the evidence is said to have been completed. At the stage of arguments, the respondent filed I.A No. 549 of 2010 under Order VI Rule 17 CPC with a prayer to permit him to amend the plaint, by incorporating para 12. In effect, the relief of specific performance under an agreement of sale dated 10-12- 1994 was claimed. The petitioner opposed the application by filing counter. An objection was raised both as to the permissibility of the claim of specific performance and as to the stage at which the application was filed. The trial Court allowed the I.A through order dated 18-01-2011. Hence this revision.
Heard Sri J. Prabhakar, learned counsel for the petitioner and Sri Bathula Venkateswara Rao, learned counsel for the respondent.
The suit filed by the respondent was the one for injunction simplicitor. It was competent for him to seek amendment of the prayer in the suit by filing an application under Order VI Rule 17 CPC as long as it is within the stipulated parameters. I.A No. 549 of 2010 was filed not only after the commencement of trial but also after conclusion of the recording of evidence.
The proviso to Rule 17 of Order VI CPC prohibits filing of applications for amendment of pleadings after the commencement of trial. It is only in exceptional cases that an application can be entertained even after commencement of the trial. Strong factual foundation has to be laid for that purpose. In the instant case, the respondent did not state as to what prevented him from claiming the relief of specific performance in the suit at the threshold. In the absence of such a plea to the satisfaction of the Court, filing of application at the stage of arguments is impermissible in law.
Secondly, the relief of specific performance was claimed in respect of an agreement of sale dated 10-12-1994. The suit itself was filed in the year 2009 i.e., about 15 years after the said agreement. The I.A was filed one year thereafter. Even if one takes into account, the date of the agreement and the date of filing of the suit, a serious doubt arises as to the permissibility of the claim, from the point of view of limitation. It is only when an independent suit for specific performance is filed, that an occasion for the Court, to examine the matter from the point of view of Section 3 of the Limitation Act or any objection raised by the defendant in such a suit would arise.
Therefore, the revision petition is allowed and the order under revision is set aside. The trial Court shall take up the matter on priority basis and dispose of the suit within a period of two months from today. It is also directed that if it is otherwise feasible or permissible for the respondent to file a suit for specific performance, it shall be open to him to do so and any observation made herein shall not be treated as a final pronouncement on facts.
Miscellaneous petitions filed in this revision shall stand disposed of.
There shall be no order as to costs.
L. NARASIMHA REDDY, J 4th July, 2014 ks