THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 685 OF 2014 Dated: 28 -04-2014 Between:
Smt. Uppuluri Radhika ... PETITIONERS AND Smt. Vanga Surya Kumari and three others .. RESPONDENTS THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 685 OF 2014 ORDER:
The petitioners – plaintiff filed this revision being aggrieved by the order dated 18-12-2013 passed in I.A No.233 of 2013 in O.S No. 964 of 2012 wherein and whereby the learned II Additional Junior Civil Judge, Vijayawada dismissed the application filed by her under Order VI Rule 17 CPC read with Section 151 CPC.
The petitioner filed the above suit seeking permanent injunction restraining the respondents – defendants, their men and agents from ever interfering with her peaceful possession and enjoyment of the plaint schedule property. The defendants filed written statement and the trial commenced in the suit. At that stage, the petitioner filed an application seeking additional relief of mandatory injunction directing the respondents – defendants to remove the constructions made in the encroached portion of the plaint schedule property during the pendency of the suit and to allow necessary consequential amendments. The petitioner contended that along with the suit, she filed I.A Nos.391 and 392 of 2012 seeking temporary injunction and for appointment of Advocate Commissioner to note down the physical features of the property in question, that the Court initially granted status quo and the same was extended from time to time. The Court had also entrusted warrant to the Advocate Commissioner to execute the same with the assistance of Mandal Surveyor. It was the case of the petitioner that even before the warrant is executed, in violation of the status quo order, the respondents meddled with the boundary, raised pillars and platform in an extent of 4.0 cents by encroaching into the property in question. Therefore, PW 1 in his evidence prayed the Court to exercise its inherent powers and direct the respondents to remove the constructions made in the encroached property for which the Court advised to pay the requisite Court fee and get the plaint amended seeking additional relief of mandatory injunction. The petitioner also stated that in view of the proposed amendment the matter can be proceeded further without reopening of the evidence. The respondents filed counter opposing the application and stating that since the trial had commended in the suit, the application is not maintainable. The petitioner had already filed a comprehensive suit in O.S No. 458 of 2012 before the VII Additional District Judge, Vijayawada and the allegations made in the present application have to be decided in the said suit but not in the present suit filed for permanent injunction. It was also contended that the present amendment creates a new cause of action and changes the nature of the suit. The trial Court after hearing both sides and relying on various decisions of this Court dismissed the application. Hence the revision.
Learned counsel for the petitioner contended that the proposed amendment will not change the nature of the suit and no prejudice would be caused to the respondents if the proposed amendment is allowed. He further contended that the trial Court erred in observing that the petitioner can seek relief of mandatory injunction in O.S No. 458 of 2012 since the 1st respondent – 1st defendant was not a party to the said suit. It is also his contention that the present application was filed in view of the observations made by the Court during the course of trial and that in order to avoid multiplicity of proceedings, the trial Court ought to have allowed the application filed by the petitioner. Learned counsel for the petitioner placed reliance on a decision of this Court in Sanapala Ramanujulu v. S.
[1]
Sridhrudu (died) and others .
On the other hand, learned counsel for the respondents contended that since the application was filed by the petitioner after the commencement of trial, the trial Court rightly dismissed the same.
Perused the record.
Order VI Rule 17 reads thus:
“Amendment of pleadings:- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”
The proviso to Order VI Rule 17 CPC does not debar amendment of the plaint even at a later date, but authorizes the Court for allowing such amendment if it comes to the conclusion that in spite of due diligence, the parties could not raise the matter before the commencement of the trail.
It is the case of the petitioner that the observations made by the Court during the course of the evidence of PW 1 necessitated the proposed amendment. It was also specifically pleaded by the petitioner that in view of the proposed amendment, the evidence need not be reopened and the matter can be proceeded with from the present stage of the suit. In my considered opinion, since the amendment sought for by the petitioner relates to the same property in respect of which relief of permanent injunction was sought for, the proposed amendment would enable the Court to determine the real questions in controversy.
This Court in Sanapala Ramanjulu’s case (1 supra) upon which reliance has been placed by the learned counsel for the petitioner observed as under:
“Considering that the purpose of allowing the amendment is to minimize the litigation, the power to allow amendment has to be literally exercised subject to proviso to Order VI Rule 17 CPC. The mere fact that an amendment is permitted does not mean that the Court has accepted the plea of the petitioner that the pleadings sought to be included by way of amendment are true or that the petitioner is entitled to the relief sought by way of amendment. The defendants would have an opportunity to file additional written statement raising all pleas open to them including the plea that the relief sought is barred by limitation or that such a relief cannot be granted in the absence of prayer for relief of declaration.”
It is well settled that if amendment does not constitute an additional or new cause of action, but amounts to more than adding to the facts already on record, the amendment would be allowed even after the
[2]
statutory period of limitation (see Raj Kumar v. Dipender Kaur Sethi ).
The Courts should be liberal in granting prayer for amendment of pleadings if no serious injustice or irreparable loss is caused to the other side. In my considered opinion, the proposed amendment will not change the cause of the action in the suit or would cause serious injustice or irreparable loss to the respondents.
In view of the above, the order under revision is set aside. Consequently, I.A No.233 of 2013 in O.S No.964 of 2012 on the file of the learned II Additional Junior Civil Judge, Vijayawada stands allowed.
The civil revision petition is accordingly allowed. Miscellaneous applications, if any, pending consideration shall stand closed. No order as to costs.
ASHUTOSH MOHUNTA, J 28th April, 2014 ks
[1] 2014 (2) ALD 365
[2] AIR 2005 SC 1592