K.Chinnaswamy Mudali (Died) v. Cs.Manohar Babu,

HON'BLE SRI JUSTICE C. PRAVEEN KUMAR CIVIL REVISION PETITION No. 1001 of 2017 ORDER:

1) Aggrieved by the order dated 08.12.2016 passed in I.A.No.631 of 2016 in O.S.No.29 of 2010 on the file of the Principal Junior Civil Judge, Puttur, wherein an application filed under Order VI Rule 17 and Section 151 of C.P.C. read with Rule 28 of the Civil Rules of Practice, seeking amendment of the plaint was rejected, the present Civil Revision Petition is filed under Article 227 of the Constitution of India.

2) The petitioners, who are the plaintiffs filed O.S.No.29 of 2010 seeking declaration of their right and title over the suit schedule property and also for permanent injunction. Pending the said suit, the petitioners filed the present I.A. seeking amendment of the plaint. The contents of the affidavit filed in support of the said I.A., state that there was clerical, arithmetical and typographical error while preparing the suit. It is also said that though the name of the father of the first defendant is C.T.Sundara Mudali, but by mistake it was mentioned as C.S.Sundara Mudali. Therefore, this being clerical error, seeks change in the name of the father of the first defendant. Insofar as the second amendment is concerned, it is said that prior to filing of the suit, the petitioners converted item No.1 of the schedule property into house plots. Six of the said plots were sold to third parties prior to filing of the suit and after filing of the suit, the plaintiffs sold another two plots to third parties. The

aforesaid 8 plots is covered in Ac.0.20 cents and the remaining Ac.0.04 cents of land is said to be in their possession and enjoyment. Thereafter, the plaintiffs claim to have raised a R.C.C. building, applied for electricity service connection and also obtained door number for the said premises. Hence, seeks amendment of the plaint, to the extent of land from Ac.0.24 cents to Ac.0.04 cents in item No.1 of the schedule property. Insofar as third amendment is concerned, it is said that the first defendant colluded with the second respondent and created a collusive sale deed dated 24.12.2006 and got it registered on 05.01.2007. It is admitted that this fact was not pleaded at the time of filing of the suit. However, as the suit is for a declaration of right and title, it is urged it would be just and proper to amend the plaint moreso when the trial has not yet commenced.

3) A counter came to be filed opposing the same. Insofar as the relief with regard to deletion of Ac.0.20 cents of land from Item No.1 of the schedule property, it has been specifically stated that the averment in the affidavit that the plaintiffs have sold six plots to third parties prior to filing of the suit and two plots after filing of the suit is all false and baseless. It is also denied that eight plots covered an extent of Ac.0.20 cents and remaining Ac.0.04 cents of land is in possession of the plaintiffs. The averment with regard to collusion of defendant Nos.1 and 2 in creating a sham and collusive sale deed is denied as baseless. It is further stated that if really the grievance of the petitioners is true nothing prevented them for filing an application

immediately after filing of the suit. According to him, no explanation is forthcoming as to why the petitioners kept quiet all these years without filing an application seeking amendment of the plaint. It is said that the amendments which are now sought for, are issues which required to be decided during the cours of trial and issues are already framed and chief affidavit of plaintiff No.1 is filed, it may not be proper for this Court to amend the plaint. It is further stated that if any amendment is sought for an application has to be filed within a period of three years from the date of filing of the written statement and the said ground alone is sufficient to dismiss the application.

4) After considering the rival submissions, the trial Court rejected the request of the petitioners. Challenging the same, the present Civil Revision Petition came to be filed. 5) Insofar as the first amendment ie. Changing the name of the father of the first defendant is concerned, it is to be noted that no documents are filed before this Court to show that the name of the father of the first defendant is C.T.Sundara Mudali and not C.S.Sundara Mudali. The counter filed by the defendants before the trial Court deny the name of the father of the first defendant as C.T.Sundara Mudali. Since the respondents herein denied the name of the father of the first defendant as C.S.Sundara Mudali there exists a disputed factual aspect. No effort was made by the petitioners to produce any material in support of the same. Hence, I am of the view that the trial Court was right in rejecting the same. However, if there is any material

to show that the name of the father of the first defendant is C.S.Sundara Mudali, the petitioners are at liberty to move a fresh application before the trial Court along with the material seeking change of the name of the father of the first defendant, in which event the same shall be dealt with in accordance with law. 6) Insofar as denial to amend the extent of land covered in item No.1 of the schedule property and also change in boundaries, it is to be noted here that even as per the affidavit, the land was divided into plots and six plots were said to have been sold prior to filing of the suit and two plots came to be sold pending the suit. It is the case of the petitioners that as on today they are in possession of Ac.0.04 cents of land in which they have raised R.C.C. building. The same is strongly disputed by the respondents in their counter.

7) As seen from the averments in the affidavit, the names of the persons, to whom the plots were sold are not mentioned and the affidavit is silent when the said plots came to be registered in the names of successive buyers. Very strangely after filing the suit, the petitioners herein are said to have sold two more plots. When the suit itself is for declaration of right and title over the property and having made the respondents, as defendants alleging that they are trying to interfere with the property, it is strange as to how the petitioners could have sold the property to strangers. Whether such a sale took place or not is also doubtful. If really such a sale was there, nothing prevented the petitioners in filing documents to show the same or make

them as parties. It is to be noted here that if the plea of the petitioners is to be accepted now the entire structure of the plaint gets changed, as the schedule as well as the boundaries of the schedule property requires to be amended. Apart from that the issues have to be reframed. When six plots were already sold prior to filing of the suit there was no justification for including those six plots in the schedule property at the time of filing the suit. There would have been some justification had the petitioner filed the sale deeds giving dates of registration apart from mentioning the persons to whom the plots were sold. 8) Learned counsel for the petitioners mainly contended that the finding of the trial Court that the amendment cannot be allowed after commencement of trial is incorrect. According to him, trial has not yet commenced and chief affidavit of plaintiff No.1 is filed.

9) In Brij Gopal Pallod and ot hers v. Municipal Council rep.

by G.Vasudeva Reddy, Asst .

Execut ive Engineer, Zaheerabad Municipalit y, Medak Dist rict 1 this Court held that " if mere filing of affidavit in lieu of chief examination of a witness by itself cannot be treated as commencement of trial. If a witness has simply filed affidavit and cross-examination is not yet done or if that stage has not reached, it is difficult to infer that trial of the suit commenced." In the facts of the said case, the recording of evidence has not commenced in the suit. In the said case since the witness has not yet entered the witness box and 1 (2013) 2 ALT 353

offered himself for cross-examination, it was held that the suit has not been 'set down' for trial.

10) In the instant case also chief affidavit of plaintiff No.1 was filed but he has not entered the witness box for cross examination. Therefore, the said finding of the learned trial Judge may be incorrect.

11) In Revaj eet u Builders and Developers v.

Narayanaswamy and sons and ot hers2 the Apex Court, after analysing critically the point in issue, deduced the following basic principles to be taken into consideration by the Courts, while allowing or rejecting the application for amendment:

1) Whether the amendment sought is imperative for proper and effective adjudication of the case.

2) Whether the application for amendment is bona fide or mala fide;

3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

2 (2009) 10 SCC 84

12. In P.A.Jayalakshmi v. H.Saradha and ot hers3, while dealing with Order VI Rule 17 of C.P.C. the Apex Court held that it is primal 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. However, proviso appended to Order VI Rule 17 of C.P.C. restricts the power of the Court. It puts an embargo on the exercise of its jurisdiction. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction to allow the amendment of the plaint.

13. Therefore, if the finding of the trial Court that the amendment cannot be allowed after filing of the chief affidavit is held to be incorrect, but on merits and for the reasons aforementioned, this Court is of the view that the order under challenge warrants no interference.

14. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.

15. Consequently, the Miscellaneous Petitions, if any, pending shall stand closed.

_________________________ JUSTICE C. PRAVEEN KUMAR 23.06.2017 gkv 3 (2009) 14 SCC 525