HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.R.P.No.4219 of 2013 Date : 5-9-2014 Between :
Smt. Sunitha Shakeli ..
Petitioner And J.V. Mohan ..
Respondent Counsel for petitioner : Sri Vivek Jain for Sri B. Vijaysen Reddy Counsel for respondent : Ms. A. Suchitra Reddy for Sri Laxminarayana Alishetty The Court made the following :
ORDER:
This Civil Revision Petition arises out of order dated 23-7-2013 in I.A.No.2897 of 2008 in I.A.No.1667 of 2008 in O.S.No.553 of 2008 on the file of the learned Principal District Judge, Ranga Reddy District at L.B. Nagar, Hyderabad.
The petitioner is the wife of the respondent. The respondent filed the above mentioned suit for declaration of title and for permanent injunction. The respondent has also filed I.A.No.1667 of 2008 for interim injunction restraining the petitioner from alienating or creating any third party interest over the suit schedule property. In the said I.A., the petitioner filed I.A.No.2897 of 2008 under Order VI Rule 17 CPC for amendment of her counter affidavit for substitution of the following paragraph, at page No.5, namely, “The property rightly belong to the joint family of my in-laws, though still it stands in my name as the necessary resources were provided by my brother-in- law Sri Venugopal, who is a N.R.I. in U.S.A.”
with the following paragraph:
“The property was purchased by me in my name out of my own resources and for purchase of the property, funds were provided as a hand loan, by my sister in law, Capt. Mamatha and brother in law Sri Venugopal, who is a N.R.I. in U.S.A.”.
This application was dismissed by the lower Court mainly on the ground that the petitioner is seeking to resile from the admissions made by her in her original counter affidavit.
After hearing the learned Counsel for both the parties, I am of the opinion that the lower Court has not properly understood the scope of the amendment sought by the petitioner. No doubt, at the first blush, it may appear that the petitioner is resiling from the so-called admission that the property was a joint family property. But, it needs to be noted that it is not the pleaded case of the respondent/plaintiff that the property was a joint family property. On the contrary, the respondent/plaintiff has specifically pleaded that he has purchased the suit schedule property by paying valuable consideration and has been using the schedule property for his own purpose. Thus, it is not the case of the respondent/plaintiff that the property was joint family property and therefore the petitioner/defendant cannot be said to have resiled from the so-called admission that the property was joint family property. The amendment which the petitioner wanted to make is by substituting the averment that the property belongs to the joint family with the averment that the property was purchased by her in her own name out of her own resources and for purchase of the property, funds were provided as hand loan by her sister in law and others mentioned therein. With respect to the provision of funds, the same was even pleaded in the original pleading. Therefore, the reasoning of the lower Court that the petitioner seeks to resile from her admissions is not sound.
Indeed, in para-8 of her written statement, the petitioner has clearly pleaded what she has proposed to plead by way of amendment in the counter-affidavit in I.A.No.1667 of 2008. Therefore, no prejudice will be caused to the respondent if the petitioner is permitted to amend the pleading in her counter affidavit filed in I.A.No.1667 of 2008 in conformity with the stand taken by her in the written statement itself.
For the above mentioned reasons, the order of the lower court is set-aside. I.A.No.2897 of 2008 is allowed.
The Civil Revision Petition is accordingly allowed.
As a sequel to the disposal of the Civil Revision Petition, CRPMP Nos.5700 and 6510 of 2013 and CRPMP No.4100 of 2014 are disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 5-9-2014 AM