THE HON'BLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION No.3125 of 2014
Date:16.12.2014
Between:
Sri S. Saleem . Petitioner.
AND Sm. Y. Rajeswaramma and others.
....Respondents.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION No.3125 of 2014
ORDER:
This revision is preferred against orders dated 14-08-2014 in I.A.No.110/2014 in O.S.No.58/2011 on the file of Senior Civil Judge, Nandikotkur whereunder Court below allowed petition filed under Order VI Rule 17 CPC filed by plaintiffs 2 to 4 who are impleaded as plaintiffs as per order dated 21-03-2012 in I.A.No.26/2012.
2. Brief facts leading to this revision are as follows:-
The revision petitioner herein is second defendant and respondents 1 to 3 are newly added plaintiffs 2 to 4. After completion of the trial and also arguments are advanced, this I.A.No.110/2014 was filed by newly added plaintiffs seeking amendment by adding relief of declaration of title to the original relief of cancellation of sale deed. The said application was resisted by the defendant on the ground that it changes the nature of the suit and as per proviso Order VI Rule 17, the proposed amendment cannot be permitted. Considering the contentions and rival contentions of both parties, trial Court permitted amendment and aggrieved by the same, defendant preferred the present revision.
3. Heard both sides.
4. Advocate for revision petitioner submitted that the proposed amendment changes the nature of suit and it is no way connected with the dispute involved in the main relief i.e., cancellation of sale deed and petition is filed after some objections were raised during the course of arguments of the defendant and to meet those objections, the proposed amendment petition was filed on behalf of newly added plaintiffs. He further submitted though a specific objection is taken in Para No.6 of the counter, trial Court without considering the same, casually allowed the amendment petition and the order of the trial Court has to be aside. In support of his arguments, he has cited some rulings of Hon’ble Supreme Court in RAFIQ AND ANOHTER vs. MUNSHILAL AND ANOTHER (Civil Appeal No.1415 of 1981, dated 16-04-1981), SURENDER KUMAR SHARMA vs. MAKHAN SINGH (Civil Appeal No.6400 of 2009, dated 18-09-2009) a n d VALLALA YASODHA vs. VALLALA NAGA VENKATA LAXMI, VALLALA VAMSHI KRISHNA AND BADDALA DHANALAXMI (Civil Revision Petition No.1409 of 2013, dated 18-04-2013).
He further submitted that no reasons are given by the newly added plaintiffs who came on record in March, 2012 and who participated in the trial for not taking this step earlier. He submitted after completion of arguments of defendants, the present petition is filed, which is highly belated and the order of the trial Judge has to be set aside.
5. Advocate for respondents i.e., plaintiffs in the suit submitted that the trial Court rightly allowed the petition and the delay is not a ground to refuse amendment, because at any stage of the case, amendment can be permitted. It is further submitted that because of the latches on the part of the previous advocate of the respondents, this amendment could not be taken at the earlier point of time and further, the present advocate noticed this defect and that there is no latches on the part of the respondents 1 to 4. It is further submitted that the proposed amendment is necessary for determination of the disputes between the parties and to avoid multiciplity of proceedings, like driving the respondents herein to file a separate suit, the trial Judge permitted amendment and that there are no grounds to interfere with the orders of the trial Court. In support of her arguments, she has relied on a decision of Hon’ble Supreme Court in RAJESH KUMAR AGGARWAL Vs. K.K. MODI (Civil Appeal Nos.5350-5351 of 2002, dated 22-03-2006).
6. Now the point that would arise for my consideration in this revision is whether order of the court below is legal, proper and correct?
7. Point:- Admittedly, O.S.No.58/2011 is originally filed for cancellation of sale deed dated 03-10-2011 executed by fourth respondent herein on the ground that it was obtained by threat, coercion without consideration and to restrain defendants from his men, agents by way of permanent injunction from encumbering the plaint schedule property and for other reliefs as the Court may deem fit and proper in the circumstances of the case. The suit is filed originally by sole plaintiff against the revision petitioner herein and subsequently, by virtue of gift deed executed in favour of respondents 1 to 3 herein, they filed I.A.No.26/2012 to implead them as plaintiffs 2 to 4 and that petition was allowed by order dated 21-03-2012 and after they are impleaded as plaintiffs 2 to 4, trial was proceed with. As seen from the impugned order, dated 14-08-2014, this amendment application was filed, after hearing the arguments of revision
petitioner herein.
8. In SRI RMOJIRAO AND ANOTHER VS. M.A.E. KUMAR KRISHANVARMA AND ANOHTER (CRP Nos.2623, 2629 of 2011 and Tr.CMP No.453 of 2011, dated 18-11-2011), this Court while dealing with the scope of Order VI Rule 17 held that the proviso of Order VI Rule 17 requires the Court to record a finding that the party seeking amendment could not have raised the matter before commencement of trial, despite due diligence and recording of such finding is a condition precedent to legitimate exercise of the discretion to allow amendment of pleadings sought by the party.
9. As seen from the impugned order, no such finding is recorded by the learned Senior Civil Judge, Nandikotkur and he simply accepted the version of the respondents 1 to 4 herein namely that the proposed amendment could not be sought, because of the latches of earlier advocate and only after change of advocate, they could realised this. But as seen from the affidavit filed by second respondent herein in respect of I.A.No.110/2014, no details are given as to when this defect was noticed by their new advocate. In fact, the affidavit is silent as to when the respondents 1 to 4 have changed their advocate and the stage at which, the new advocate has come on record in O.S.No.58/2011. As seen from the prayer in the amendment petition, the proposed amendment is to add a relief that plaintiffs 3 & 4 became owners of the suit schedule property by virtue of gift deed dated 24-04-1985 and declare them as owners of the property. As rightly pointed out by the Advocate for revision petitioner, when the original relief is only for cancellation of sale deed, dated 03-10-2011, the proposed relief sought by the newly added plaintiffs would completely change the nature of suit, because the cause of action for these plaintiffs was only by virtue of gift deed, dated 24-04-1985, but in the plaint, there is no such reference in the cause of action.
10. The cause of action in the plaint was shown as simple as that the property is within territorial limits of jurisdiction, whereas the suit is filed, except that no other details are given in the cause of action.
11. With regard to decision relied on by the respondents even in that decision also, the Hon'ble Supreme Court reiterated that the proviso to Order VI Rule 17 no amendment should be allowed unless the Court comes to conclusion that in spite of due diligence, the party could not have raised the amendment sought before commencement of trial. As already referred above, no details are given in the affidavit showing the reasons as to why this amendment could not be sought before commencement of the trial.
11. I n VIDYABAI AND OTHERS vs. PADMALATHA AND [1] ANOTHER , Hon'ble Supreme Court held that it is the principal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. Here as already stated supra, the suit is for cancellation of the sale deed and by adding this relief of declaration of title, the entire nature of the suit will be changed which is not the real dispute in the original pleadings. Therefore, considering the facts and circumstances of the case and the material papers, I am of the view that the learned Senior Civil Judge, Nandikotkur has committed material irregularity in allowing the amendment at the stage of arguments without considering the objection raised by the defendant, therefore, the order is liable to be set aside.
12. Accordingly, revision is allowed and the impugned dated 14- 08-2014 in I.A.No.110/2014 in O.S.No.58/2011 on the file of Senior Civil Judge, Nandikotkur is set aside and the trial Court is directed to dispose of the suit, within one month from the date of the receipt of this order. No costs.
13. As a sequel, miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand disposed of.
Date:16.12.2014 mrb JUSTICE S. RAVI KUMAR [1] (2009) 2 Supreme Court Cases 409