Pasaladi Narayana (Died) Per Lrs 7 Others v. Dr.P.Mahadevraj

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYDERABAD FRIDAY, THE THIRTY FIRST DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY CIVIL REVISION PETITION NO: 1297 OF 2014 l Petition under Arlicle 227 of Constitution of lndia, aggrieved by the Order dated 2510212014 in lA No.377l20'13 in OS No.76/201 'l on the file of the Court of the ilt Additional District and Sessions Judge, Gadwal. Between:

'1. Pasaladi Narayana (dled) perLRs Pasaladi Shakunthala, Wo, late p. Narayana, Age 70 years, Occ: House wife, Rio. H.No. 3-2-637/i, Kachiguda, Hyderabad Pasaladi l\rlallikarjuna Raju, S/o..late p. Narayana Age 52 years, Occ: Govt. employee, R/0, H. No. 3-2-637 I l,Kachiguda, Hvderabad Pasaladi Ramana Raju, S/o late p. Narayana Age 46 years, Occ: Business, R/o, H,No, 4-2/2, Pushpa Nursing Flome, Opp: New Bus Stand, Near Wator l'ank, Ieeja village, Ma habubnagar District Pasaladi Basava Raju, S/o. late p. Narayana Age 39 years, Occ: Business, R/o. H.No. 14-145, Near Nadi Majeed, Neelakanteswara Swamy Street, leeja village, Mahabubnagar District.

) Pasaladi Sabitha Wo. lr/achani Shiva Shankar, (D/o. late P. Narayana), age 4S years, Occ: Govt. employee, R/o, H.No, 3-2-637/1, 2nd floor, Kachiguda, Hyde/abad Pasaladi Kalyani, Wo. Agnoor Ganesh, (D/o. late P. Narayana), age 43 years, Occ: Govt. employee, R/o. H.No. 3-2-63711 ,2nd floor, Kachiguda, Hyderabad Jalaja \rlasan, W/o. Shrikant lVasan, (D/o. lale P. Narayana), age 37 years, Occ: House wife, R/0. H.No, 16-2-741/13/10, Asman Gadh, Near TV Tower, Ir/lalakpet, Hyderabad / , .. Revision Petitioners/ Respond ents/p Iaintiffs AND n) /'-- l/ td

Dr. P. Mahadevraj, S/c p. Ganganna, Age 60 years, Occ: Ag jculture, R/o, H.No. 14_146, leeja village & Mandal, IMahabubnagar District . . . . RespondenVpetitione r/Defend a nt CRPMP. NO: 1802 OF 2014 i ii Petition under S )ction 151 of CPC praying that in the circumstances stated in the affidavit filed ther -.with, the High Court may be pleased to stay all further proceedings in O.S.Nr .76 oI 2011 on the file of lll Additional District & Sessions Judge, Gadwal, Mahab :bnagar.

For the Petitioners : S ll M.ACHUTA REDDY, Advocate Forthe Respondent N >.1 : SRI SHAFATH AHMED KHAN, Advocate (Not Present) The Court made the foll >wing: ORDER

THE HON'BLE SRI.IT]STICE A. VENKATESHWARA REDDY CIIP No.1297 of 20lel ORDER:

l.

The revision petitioners/respondents/plaintiffs have filed this Civil Revision Petition under Article 227 ol the Constitution of India, assailing tl.re order dated 25.02.2014 in IA No.377 of 2013 in Original Suit No.76 of 20ll on the file of the learned III A.dditional District and Sessions Judge, Gadrvai.

The plainiiffs have flled the Original Suit No.76 of 201 1 for panition and sepalate possession of the suit schedule propefties. The defendant has flled his written statemeni on 09.04.2012. After framing the issues, trial commenced on I I .06.2012, when the evidence affidavit of PW. 1 was filed. later cross-examination was completed, through Advocate Comr.t.tissioner on 25.01.2013. l'hereafter, on behalf of the plaintiffs, PV/.2, rvho is the son of PW.l/first plaintiff was exarrined in \Iarch, 201 3 and plaintift's' evidence, was repofied as 'closed'. Afier closing the plaintilf s evidence, on behalf of the det'endant, evidence alfldavit o1' llW. i rvas flled. l{e has also examined his brother-ir.r-law as DW.2 anC the defendant's evidence was also closed ar-rd the matter was being adjourned lor arguments. 3.

At that slage, the present application in lA No.377 of 2013 under Order-VI, Rule- I 7 CPC was filed by the defendant for arnendment of the pleadings by incorporating para-l1 (d) and (e),

AV RJ CRP No. I:97 ol20l'1 k_ adding certair additional properlies in his written statement after para- ( 1 I (c). It is illeged by the petitioner/dei-endant that the plaintilT has not covered 'he properties t-allen to his share during the course of partition and re was unable to give proper instructions to his counsel at the time o i filing the written statement due to oversight and the proposed am( ndment is very much essential in the witten statement' otherwise the defendant would suffer irreparable loss and injury' 4.Heardlearnedcounselfortherevisionpetitioners/plaintift-s. There is no 'epresentation for the respondent/defendant, though Sri ShafathAhnedKhan,advocatehasflledVakalatandheremained absent witho, t any representalion.

5.

Admiledly, the dettndant has filed IA No'377 ol 2013 under Order-VI, Rr le-17 CPC after closure of the evidence on both sides' The defenda tt has not taken any such plea with reference to the properties t rat are mentioned in para-4 of his affidavit for incorporatinl the same as para- I 1 (d) and (e) of his u'ritten statement either in his criginal written statement or in the cross-examination of PW.l or in his evidence as DW.l or in the evidence of DW'2' Though he h ts mentioned in his affidavit that he could not give proper instructions o his counsel and that the plaintitfs have not covered the properties fi llen to his share in the course of partition, I do not find any justifict tion in the plea of the def-endant, as he- rvas not at all diligent in n ak ing such Plea.

AVRJ CRP No.1297 of20l4 6.

The leamed counsel for the revision petitioners/plaintiffs also relied on the following decisions:

i) Vidyabai and others v. Potlmolutho and otherst; ii) Pandit Malhari Maltale v. Monika Pandit Mahale and othersl:

iii) S. Molla Reddy v, Future Builders Co-operalive Housing Sociel' ond olhersii and iv) Ayesha Rizwana v, Mushtoq Ahnrerl .

7. I have caretully perused the principles laid in the above decisions. The Hon'ble Supreme Court in Viclyahai's case ( 1 supra) has held that it is the primary duty of the Court to decide as to whether such an arnendment is necessary to decide the real dispute between the parlies and only if such condition is tulfilled, the amendment is to be allowed. However, the proviso appended to Order-VI, Rule- 17 CPC restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Cou('s jurisdiction in the cases of this nature is limited. Thus. unless the .jurisdictional fact as envisaged therein is found to be existing. the Court will have no jurisdiction at all to allow the anrendrnent of thc plaint 8.

Thus, under tl.re proviso ol Order-VI, Rule- I 7 CPC, lto application lbr amendnrcnt shall be allo*'ed after the trial is commenced, unless in spite ol due diligence the matter could not be TAir{ :oos sc r+s:

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AVRJ C Rl' No. 1297 of20l4 raised before sommencement of trial. ln the present case. except making a bal I statement, in his affidavit at parc-4 ' the def'endant has not stated h tw he could not mention the details in his written statement.

g.

As sta'ed above, after filing the written statement, issues settled, evidence let n on both sides qnd the application in IA No 377 of2013 was only file I after closure of the det-endant's evidc'nce and there is no iota ol evidrnce ro shorv rhar the det'endant uas diligent anci that despite due diligence. he could not raise any' such issue befbre settlement o'issues or belbre conclusion ol the trial. -l)rus, no such finding is re:orded by the Coun belou' that in spite of due diligence, the detbnda rt could not introduce the proposed amendment before commencen ent of the trial or at least befbre conclusion of the trial' In that view c f the matter, the impugned order of the trial Court is unsustainab e.

10. In tht result, the Civil Revision Petition is allowed setting aside the impugn:d order dated 25.02.2014 in IA No.377 of 2013 in OS No.76 of 2l r1l on the flle of the tll Additional District and Sessions Judge, Cad val. Considering the f'act that the Original Suit was flled in the year 2011 for partition and separate possession of the suit schedule pr rperlies and the evidence on both sides concltrded and it is only pendir rg lor argurtents, the learr-red trial Judge shall dispose of the Origin: I Suit within three months tiorn the date of receipt of a (

A VRJ CRP No. 1297 of 2014 copy of this order. Both the pafties shall cooperate with the trial Court for expeditious disposal of the Original Suit, as directed. In the circumstances ofthe case, thele shall be no order as to costs. I l.

Miscellaneous applications, if any pending in this revision petilion shall stand c losed.

Sd/-K.SAILESHI ASSISTANT REGISTRAR ,TRUE COPY'

SECTION OFFICER To

1. The lll Additional District and Sessions Judge, Gadwal, Mahabubnagar District. (with records, if any)

2. One CC to Sri I\/.Achutha Reddy, Advocate (OPUC)

3. One CC to Sri Shafath Ahmed Khan, Advocate (OPUC)

4. Two CD Copies

5. One Spare Copy Kj.

.\\\>.

HIGH COURT DATED:3111212021 0 i rEa E?2

ORDER

CRP.No.1297 of 2014 ALLOWING THE CRP VITHOUT COSTS.

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