N. Peddi Reddy , Kotla Peddi Reddy, v. N. Narayana Reddy , Kotla Narayana Reddy,

THE HON'BLE SRI JUSTICE A.V. SESHA SAI CIVIL REVISION PETITION No.2873 OF 2016 ORDER:

This Revision, filed under Article 227 of the Constitution of India, challenges the order passed by the Court of the I Additional District Judge, Ananthapuramu, in I.A.No.40 of 2016 in O.S.No.90 of 2014, dated 01.03.2016.

2. Heard and perused the material available before the Court.

3. The petitioner herein along with certain others instituted O.S.No.90 of 2014 for partition and separate possession of the plaint schedule properties. The defendants, resisting the said suit, filed a written statement. In the said suit, the plaintiffs including the petitioner herein filed the present I.A.No.40 of 2016 under the provisions of Order 6 Rule 17 of the Civil Procedure Code (herein after, 'the C.P.C.'), seeking amendment of the plaint by insertion of Para 3(a). Resisting the said application, defendants filed a counter affidavit. The learned I Additional District Judge, Anathapuramu, by way of an order dated 01.03.2016, dismissed the said application. The said order passed by the learned District Judge is under challenge in the present Revision.

4. It is contended by the learned counsel for the petitioner that the order impugned is erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 6 Rule 17 of the C.P.C. It is further submitted that had the contents of the affidavit filed in support of the application been considered from proper perspective, the order impugned would not have emanated. It is also further submitted by the learned counsel that the reasons assigned by the Court below are neither sustainable nor tenable in the eye of law and that the learned Judge ought not to have made the observations, touching the merits of the suit.

5. In the above background, now the issue that emerges for consideration of this Court is:

Whether the order passed by the learned I Additional District Judge is sustainable and tenable?

6. There is absolutely no dispute with regard to the fact that the plaintiffs including the petitioner herein filed the present application after commencement of trial. According to the proviso to Order 6 Rule 17 of the C.P.C., no application for amendment shall be allowed after commencement of trial 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 the trial.

7. In the instant case, as evident from the affidavit filed in support of the application, it is not the case of the plaintiffs that despite due diligence, the contents of the proposed amendment could not be raised before the commencement of trial. On the otherhand, the supporting affidavit of the present interlocutory application avers that by mistake and oversight, the present aspect was not mentioned in the plaint.

7. In the considered opinion of this Court, the said reason assigned in the affidavit filed in support of the application, by any stretch of imagination, cannot be said to be a reasonable and the same cannot be a sufficient reason which can satisfy the ingredients of Proviso to Order 6 Rule 17 of the C.P.C.

8. A perusal of the impugned order under challenge clearly discloses that the learned District Judge recorded a categoric finding that the plaintiff pressed into service the proposed amendment only to overcome the admissions made during the course of trial. The learned District Judge also took into consideration various aspects recorded during the course of examination of the witnesses and declined to entertain the present application.

9. It is a settled and well established proposition of law that unless

the order impugned suffers from patent perversity and jurisdictional error, the jurisdiction of this Court under Article 227 of the Constitution of India cannot be permitted to be invoked.

10.

Having regard to the valid reasons assigned by the learned District Judge for dismissing the application, this Court does not find any reason to meddle with the order impugned.

11. For the aforesaid reasons, Revision is dismissed, confirming the order passed by the learned I Additional District Judge, Anathapuramu, in I.A.No.40/2016 in O.S.No.90 of 2014, dated 01.03.2016. However, it is made clear that the Court below shall dispose of the main suit without being influenced by any observations made in the impugned order.

12. Miscellaneous petitions pending consideration, if any, in this case shall stand closed in consequence. No order as to costs. __________________ A.V.SESHA SAI, J 17.06.2016 SS