Smt Saireddy Bharathi Devi v. Kunduru Srinivas Reddy,

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CIVIL REVISION PETITION No.3250 of 2011 ORDER:

This revision petition under Article 227 of the Constitution of India is filed challenging the order in I.A.No.842 of 2006 in O.S.No.121 of 1998 dated 28.02.2011 passed by the II Additional Senior Civil Judge at Warangal, whereby, allowed the application filed under Order VI Rule 17 of CPC.

The parties hereinafter will be referred to as they are arrayed before this Court, for convenience.

The respondents filed an application under Order VI Rule 17 of C.P.C seeking leave of the Trial Court to amend the written statement alleging that when their father died, they were aged 13, 11 and 9 years old respectively in the year 1953, their eldest brother Narsimha Reddy was aged 15 years in the year 1953. They were all minors and school going children by then. After the death of their father, their family affairs were looked after by their mother plaintiff No.1 with the help and assistance of her brother Muddasani Aga Reddy till their eldest brother became major and discontinues his studies to manage the family properties in the year 1960. The petitioners were not aware as to what transpired since 1950 onwards among family members. Mother of Aga Reddy who managed the family properties used to manage the family properties after the death of their father Ramana Reddy in the month of October 1953, she managed the property from 1953 to 1960, both registered in the name of family members and on her name and their maternal uncle Aga Reddy did not inform about

the partition of the joint family property among the members of their father's family due to his father's illness and the shares allotted to each of the shareholders in the year 1950 and execution of registered partition deed among them would also not known as their mother did not inform about the partition and execution of registered partition deed dated 10.12.1953.

The petitioners came to know that late Narsimha Reddy filed four suits in the year 1962 on the file of Subordinate Judge Court at Warangal for declaration and injunction against State Government of A.P. through their next friend mother Aga Reddy. The said suit was filed to decline parititon of joint family property in the year 1953 and allotment of one such share to the petitioner as sham and nominal and not binding on the Government. The court on contest decreed the suit with costs declaring that the partition of the property in the year 1953 is valid. The registered partition deed was filed in the above suit to prove partition of joint family property in the year 1953 and the document was in the custody of her mother but she did not disclose about the availability of the partition deed to the petitioners.

Thus, the petitioners are totally ignorant of the document till the judgment was filed before the Court by their sister - plaintiff No.2 who is prosecuting the present suit. Therefore, they pleaded partition in the year 1965 in their written statement and another partition in the year 1968 among the brothers on account of wrong information, those partition were effected in the years 1950 and 1953, thereby, a mistake was crept in the written statement.

The petitioners also filed I.A.No.523 of 2003 for grant of leave to amend the written statement before the trial Court and the trial Court dismissed the application on the ground that they did not disclose cogent reasons for granting leave and the matter was carried to this Court by way of C.R.P No.2678 of 2005 which ended in dismissal while permitting the petitioner to file appropriate amendment petition narrating all the details in the affidavit. Hence in pursuance of leave granted by this Court, filed petition to amend the written statement under Order VI Rule 17 of C.P.C incorporating the proposed amendment in the petition.

The respondent-plaintiff (petitioner herein) filed counter denying material allegations interalia contending that the petitioners were not school going children by the date of alleged partition and on the date of death of their father, the statement of P.W.1 who is no more clearly establishes that the family affairs were looked after by defendant No.4's husband with the assistance of late Aga Reddy with the proper assistance of plaintiff No.1 and that it is an admitted fact that plaintiff No.1 is an illiterate lady and she is not a worldly wise and not acquainted with the family affairs thereby there is no occasion for her to look after the properties after the death of husband of plaintiff No.1. Husband of defendant No.4 became major and looked after the affairs of the family.

The allegation that mother of the respondents herein and Aga Reddy managed the properties is false.

It is further contended that the respondents herein filed several interlocutory applications with a view to stall the proceedings and already an amendment petition in I.A.No.523 of

2003 on 08.03.2003 was filed and dismissed on 07.02.2005 holding that the defendants failed to state convincing reasons to grant leave to amend the written statement. Later, the matter was carried to this court which ultimately ended in dismissal while granting liberty to file fresh application with complete details. The conduct of the respondents must also be taken into consideration while deciding the application under Order VI Rule 17 of CPC and that there are no grounds much less valid grounds to amend the written statement at belated stage and prayed for dismissal of the petition.

Upon hearing arguments of both the counsel, the Trial Court by impugned order dated 20.02.2011 allowed I.A.No.842 of 2006 in O.S.No.121 of 1998 granting leave on payment of costs of Rs.1,000/- to the petitioner herein. Aggrieved by the order, the present revision is filed mainly on the ground that the petitioners filed two other earlier applications and those applications were dismissed through out they are not entitled to file the present application seeking leave to amend the written statement and thereby the order of the trial Court is erroneous. It is also contended that when the trial has been commenced long back and completed major part of evidence, the plaintiffs were not entitled to seek leave to amend the written statement in view of the proviso under Order VI Rule 17 CPC , but the trial Court did not consider the real requirements to order petition filed under Order VI Rule 17 including the bar under proviso, committed serious error and prayed for dismissal of I.A.No.842 of 2006 in O.S.No.121 of 1998 while allowing this petition.

During hearing, the learned counsel for the petitioner Sri G.Dhanunjay would contend that the amendment cannot be allowed as the trial is already been commenced and granting leave to amend the pleading would cause serious prejudice to the petitioner when the trial is almost completed and it would take away the valuable right that accrued to the petitioner and he placed reliance on judgment of the Hon'ble Apex Court in Arundhati Mishra Smt. v. Sri Ram Charitra Pandey1, Videocon International Limited v. Securities And Exchange Board Of India2. On the strength of the principles laid down in the above judgments basing on the stage of the proceedings in the suit, the petitioners sought to set aside the order under challenge by allowing the petition while dismissing the application filed under Order VI Rule 17 of CPC.

The respondents counsel during hearing filed a memo dated 19.06.2017 restricting their claim for amendment to the following paras:

i.

"a partition deed was executed and registered by the Defendant Nos.1 to 3 and father of the Defendant Nos.5 and 6 dated 10.12.1953 evidencing partition of joint family of parties and thus the Defendants have been in possession and enjoyment of their respective shares of suit properties as absolute owners till this day.

ii.

"The Defendants have perfected their title to the suit properties by prescription since 1953 partition with their father and therefore the suit is barred by limitation and the same is liable to be dismissed." 1 (1994) 2 Supreme Court Cases 29 2 (2015) 4 Supreme Court Cases 33

While contending that the provisions of amended CPC have no application to the suit filed by to Act 22 of 2002, CPC and that such amendment can be allowed if the Court finds that it is necessary by placing reliance on judgment in Revajeetu Builders and Developers v. Narayanaswamy & Sons and others3, and thus the Trial Court did not commit any error warranting interference of this Court and requested to dismiss the present revision petition confirming the order passed by the trial Court in I.A.No.842 of 2006 in O.S.No.121 of 1998.

Considering the rival contentions and the material available on record the points that arise for consideration are as follows: 1.

Whether the proviso to Order VI Rule incorporated by amendment Act 22 of 2002 is a bar to grant leave to amend the written statement by exercising the power under Order VI Rule 17 of CPC?

2.

Whether the proposed amendment would change the nature of defence, takes away the valuable right that accrued to the petitioner-plaintiff or withdraws any unequivocal admission made in the written statement; if not the order passed by the trial Court in I.A.No.842 of 2006 in O.S.No.121 of 1998 dated 28.02.2011 be sustained?

P O I N T No.1:

The suit was filed in the year 1998 i.e. prior to amendment to Civil Procedure Code, by Act. 22 of 2002 by which a proviso to Order VI Rule 17 C.P.C was incorporated, but filed petition subsequent to amendment i.e in the year 2006. One of the 3 2009(8) SCJ 401

questions before this Court is whether the bar under proviso to Order VI Rule 17 C.P.C will apply to the suit filed prior to amendment to C.P.C. But, this question is no more res integra, in view of the law declared by the Apex Court in Delhi Development Authority v. S.S. Aggarwal and others4, Chander Kanta Bansal v. Rajinder Singh5, and judgments of this Court in Rachabattuni Govinda Rao vs Jonnadula Sambasiva Rao6 and Bogirouthu Suryakantham And Anr. vs Kandhi Sanyasinaidu And Ors7. In the above judgments, the Apex Court, and thus took consistent view that suits filed prior to Act 22 of 2002 are not governed by the proviso. If the principle laid down in the above judgments is applied to the present facts of the case, there is absolutely no basis to the arguments advanced by the learned counsel for the petitioner before this Court. Hence, in view of the principle laid down in the above judgments, proviso to Order VI Rule 17 C.P.C added by Act 22 of 2002 has no application to the present facts of the case. Accordingly, the point is answered. P O I N T NO.2:

The Trial Court granted leave to amend the written statement filed by the respondent herein. But, the contention of the petitioner is that the proposed amendment would change the nature of the proceedings and it would take away the valuable right that accrued to the present proceedings, since the suit was filed prior to amendment to C.P.C by Act 22 of 2002. Therefore, 4 AIR 2011 SC 3265 5 AIR 2008 SC 2234 6 2005 (5) ALD 390 7 2004 (2) ALD 290

the procedural law prevailing on the date of filing suit is alone applicable.

According to Rule 17 Order VI of C.P.C., 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. However, the principles to decide petitions under Rule 17 Order VI of C.P.C. are well settled. Viz., the amendment shall not alter the basic structure or nature of the claim and that the amendment shall not take away the valuable right that accrued to the respondent or such amendment would not amount to withdrawing unequivocal admissions made in the pleadings.

Therefore, the Court is required to consider the basic principles to decide the petition. The Apex Court in various judgments, highlighted the scope of Order VI Rule 17 C.P.C and laid down certain guidelines to exercise jurisdiction under Order VI Rule 17 C.P.C, which is purely discretionary in nature. In Rameshkumar Aggarwal v. Rajamala Exports Private Limited and others8, the Apex Court relying on Revajeetu Builders and Developers v. Narayanaswamy & Sons and others9, to decide the scope of proviso to Order VI Rule 17 C.P.C laid down certain guidelines for granting or denying relief under Order VI Rule 17 of CPC viz., as follows:

8 AIR 2012 SC 1887 9 2009(8) SCJ 401

"On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration 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 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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.

It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

24. The Apex Court further held that, "amendment application to be filed if necessary immediately after filing suit i.e. before commencement of trial. If the petitioners are able to prove or explain as to how they failed to take steps before the trial commenced despite exercising due diligence, the Court can allow such amendment. The factum of exercising due diligence depends upon circumstances."

In Bairam Susheela v. Pendota Rama Rajaiah10, this Court held that mere grant of permission to amend the pleadings does not confer or take away the rights of the parties. On the basis of the amendment, necessary issues have to be framed after giving an opportunity to the other party and evidence has to be adduced on the issues so framed, if necessary. It shall always be open to the parties to raise such pleas as are open to them touching on the relief introduced through amendment.

In view of the principle laid down in the above judgment, the Court has to allow application filed under Order VI Rule 17 C.P.C before commencement of trial liberally.

In Jagjeevan Panigrahi and others v. Gelala Somayya11 this Court held that the petitioners cannot seek amendment at a belated stage setting up a claim for possession of suit property for the institution of a fresh suit would be barred by limitation. The amendment cannot be allowed, as it seriously prejudices the respondent and the valuable right accrued to the respondent during the pendency of the suit to raise the plea of adverse possession would be defeated. But, the principle laid down in the above judgment has no application for the reason that the claim of the respondent is not barred by limitation to institute a fresh suit. But, the rule permits to amend the plaint at any stage, which includes appellate stage, if the proposed amendment is necessary to decide the real controversy between the parties. Therefore, the law is clear that an amendment can be allowed at any stage prior to amendment of C.P.C by amending Act 22 of 10 2004 (5) ALT 233 11 1998 (3) ALT 49

2002 and after amendment of C.P.C, an interdict is created by virtue of proviso to Order VI Rule 17 C.P.C., but the same has no application in view of the law laid down by the Apex Court in various judgments referred supra.

Learned counsel for the petitioner while contending that the amendment at belated stage cannot be allowed, since, it would take away valuable right accrued to the petitioner herein, placed reliance on the judgment of Supreme Court in Smt Arundhati Mishra v. Sri Ram Charitra Pandey12, wherein, the Apex Court held that an amendment to written statement raising an inconsistent plea cannot be permitted. In the facts of the above judgment, a tenant was sought to be evicted after terminating the tenancy by issuing notice under Section 106 of Transfer of Property Act, and after contesting, the tenant filed an application raising plea of perfecting of title by adverse possession. The Apex Court while relying on the judgment in Firm Sriniwas Ram Kumar v.

Mahabir Prasad13 held that the pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally it was refused. It is not necessary to burden the judgment by copious references thereof. But each case depends upon its own facts.

and there should be no prejudice caused to the other side. Bar of limitation which is available to the parties cannot be permitted to be defeated. It is also settled law that if the relief is found on the same cause of action, though different sets of facts are sought to be brought on record by appropriate pleadings, it cannot be refused. In those circumstances, permission to amend the pleadings could be granted.

Even according to the principle laid down in the above judgment, the Court can permit amendment of the pleadings at ay stage, including second appeal, subject to the principles which I referred in the earlier paragraphs. If the principle laid down in the above judgment is applied to the present facts of the case, the defence set up by the defendant in the written statement by way of proposed amendment would not take away the valuable right that is accrued to the petitioner. But the respondent filed memo limiting the proposed amendment which reads as follows: "1. Questioning of amendment made in written statement under Order VI Rule 17 C.P.C in I.A.No.842 of 2006 in O.S.No.121 of 1998 on the file of II Addl. Senior Civil Judge, at Warangal the plaintiff field the above CRP.

2. We the respondents/defendants restrict our claim with regard to the following amendments namely: i. a partition deed was executed and registered by the defendant nos.1 to 3 and father of the defendant nos.5 & 6 dated 10-12-1953 evidencing partition of joint family of parties and thus the defendants have been in possession and enjoyment of their respective shares of suit properties as absolute owners till this day.

ii. The defendants have perfected their title to the suit properties by prescription since partition with their father and therefore the suit is barred by limitation and the same is liable to be dismissed."

In such case, there is a little bit of inconsistency about the claim of the respondents, as the respondents have set up a registered partition deed dated 10.12.1953. When the partition deed is a registered one, it is difficult to conclude that the respondents created such document and moreover, when the document is registered and directly goes to the root of the case, the respondents may confine either to the plea raised in the proposed amendment or to the original plea, though there is a little bit of inconsistency between these two pleas. But, he cannot prosecute the proceedings on both pleas. Therefore, the proposed amendment would neither take away the valuable right of the petitioner nor changes the nature of the proceedings.

Learned counsel for the respondent relied on Daggumati Malakonda Reddy and another v. Puligunta Malakonda Reddy and others14, wherein, this Court held in paragraph 4 as follows: "4. I see no force in the first contention of the learned Counsel for the respondents about the maintainability of the petition for amendment filed after the trial is taken up, because the suit was filed in 1999, long prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 2002 on 1-7-2002 and since Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, lays down that the provisions of Rules 5, 15, 17 and 18 of Order VI C.P.C., as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of the Act i.e.

, Code of Civil Procedure (Amendment) Act, 2002 shall not apply in respect of any pleading filed before the commencement of the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002, both of which came into force on 1-7-2002. Therefore, it is clear that the provisions of amended Rule 17 of Order VI C.P.C. apply to pleadings filed on or after 1.7.2002, but not to the pleadings filed prior to 1-7-2002. So, the fact that the trial of the suit has already commenced per se is not a ground for rejection of the application for amendment of the plaint filed by the revision petitioner."

14 2006 (3) ALT 206

Similarly in G.S. Prakash v. Polasa Hanumanlu15, learned single Judge of this Court laid down certain guidelines where an amendment has to be allowed and also instances where amendment has to be refused and it reads as follows:

17. I do not intend to burden this Judgment with myriad precedents on the subject. On a careful analysis of the judicial precedents referred to above, it needs to be held that as a general rule, the Courts have to adopt a liberal approach in considering the applications for amendment of pleadings, subject to certain exceptions. Without intending to be exhaustive, but only illustrative, broadly stated, instances on either side are stated hereunder:

"Instances where amendments have to be allowed : (a) All pre-trial stage (prior to examination of witnesses) amendments which do not alter the nature and character of the suit and substitute or introduce new cause of action; (b) In cases of pending or post-trial amendments, the Court must allow the same subject to the applicant, in addition to satisfy the condition (a) supra, satisfying two other conditions, viz., (i) that the amendment is necessary for determining the real questions in controversy and (ii) that despite due diligence, the applicant could not move the application at an earlier stage; (c) Where, the proposed amendment will not work injustice or cause prejudice to the other side;

(d) Where, by the proposed amendment the position of the other party will be altered, but the same can be compensated by costs;

(e) Even where the proposed amendment introduces inconsistency in pleadings, if by the proposed amendment, the party does not seek to resile from the admissions if any made in the original pleadings;

(f) Where the proposed amendment relates to a time barred claim and the Court is satisfied that allowing such amendment really subserves the cause of justice and avoids further litigation.

Instances where amendments have to be refused: (i) Where by the proposed amendment the party seeks to alter the nature, character and constitution of the suit (mere inconsistent pleadings may not, in all cases, change the nature and character of the suit) or substitute cause of action or introduce a distinct cause of action;

15 2015 (2) ALT 594

(ii) where the valuable defence by way of admissions by a party has accrued to the opposite party and by the proposed amendment the party intends to resile from such admissions; (iii) where the position of the other party will be altered by the proposed amendment and the injury caused to him by such alteration could not be compensated in costs. (iv) Where the proposed amendment lacks bonafides and is far too belated and the party seeking the amendment was not diligent in approaching the court;

(v) Where a fresh suit, if instituted on the proposed amendments, will be barred by law;"

If the principles in the above judgments are applied to the present facts of the case, the proposed amendment would not cause any prejudice, since the proposed amendment is based on a registered partition deed and it would not take away the valuable right that accrued to the petitioner or it amounts to withdrawing the earlier admission, if any made in the pleading. In such case, when the amendment is crucial and necessary for deciding the real controversy between the parties, the Court can permit such amendment liberally, since the suit is pre-2002 i.e prior to Amendment Act 22 of 2002, to put an end to the litigation and to avoid multiplicity of proceedings.

Learned counsel for the petitioner contended that when the Act is silent, the Act will have its retrospective effect and placed reliance on Videocon International Limited2. while considering SEBI Act, 1992, the Apex Court discussed whether amendment of Section 152 of SEBI Act would operate prospectively or retrospectively or whether an appeal would lie as per the amendment to Section 152 of SEBI Act and held that the determination, insofar as the present controversy is concerned, is with reference to situations wherein, the amending provision by

express words or by necessary implication, does not mandate the amendment to be either prospective or retrospective and thereby, in the absence of any such provision, the amendment to Section 152 of SEBI Act will have retrospective effect. But, SEBI Act is a substantive law and not procedural law.

Here, in this case, the Apex Court in two judgments referred supra, made it clear that the provisions of amended Act will have prospective effect in operation. Therefore, the Apex Court concluded that the amended provisions have no application to the suits filed prior to commencement of amended Act. This Court cannot give any different interpretation based on the principles laid down by the Apex Court while dealing with a substantive law. Though the provision pertains to procedural law, but when there is a judgment directly on the issue i.e of C.P.C, this Court can ignore the judgment of the Apex Court on different enactments while interpreting the provisions under different enactments.

Consequently, I find no substance in the contentions raised by the learned counsel for the petitioner that the Civil Procedure Code will have retrospective effect is not accepted, as found no merits in the revision.

This court can exercise revisional jurisdiction under Article 227 of the Constitution of India in limited circumstances and nature of the jurisdiction is supervisory over the subordinate courts or the tribunals under the control of the High Court. The power of revision under Article 227 of the Constitution of India is limited to find out whether the order under challenge, passed by the subordinate court or tribunal within their jurisdictional limits

and the main intention of exercising both administrative and judicial control under Article 227 of Constitution of India is to keep them within the bounds of their jurisdiction and not to allow them to transgress from their jurisdictional limits, but not otherwise. The Court can exercise jurisdiction under Article 227 of the Constitution of India under the following circumstances: "a) When the inferior court assumes jurisdiction erroneously in excess of power.

b) When refused to exercise jurisdiction.

c) When found an error of law apparent on the face of record.

d) Violated principles of natural justice.

e) Arbitrary or capricious exercise of authority or discretion.

f) Arriving at a finding which is perverse or based on no material.

g) A patent or flagrant error in procedure.

h) Order resulting in manifest injustice.

i) Error both on facts and law or even otherwise." Similarly, the Court cannot exercise its discretion under Article 227 of the Constitution of India in the following circumstances:

"a) Where the only question involved is one of interpretation of deed;

b) On question of admission or rejection of particular piece of evidence, even though the question may be of everyday recurrence;

c) To correct erroneous exercise of jurisdiction, as a Court of revision;

d) To set aside an intra vires finding of the fact, except where it is founded on no material or is perverse; e) To correct an error of law, not being an error apparent on the face of the record;

f) To interfere with the intravires exercise of discretionary power, unless it is violative of principles of natural justice;

g) The Court shall not interfere on a merely technical ground which would not advance substantial justice."

Article 227 of Constitution of India deals with power of superintendence by the High Court over all Subordinate Court and Tribunals. The power of superintendence conferred upon the High Court by Article is not confined to administrative superintendence only, but includes the power of judicial revision also even where no appeal or revision lies to the High Court under the ordinary law, rather power under this Article is wider than that of Article 226 in the sense that it is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction and such power can also be exercised suo motu. It is a well settled principle that the High Court can exercise supervisory power under Article 227 of Constitution of India, as held by the Apex Court in State (N.C.T. Of Delhi) v. Navjot Sandhu@ Afsan Guru16 that under Article 227 of Constitution of India the High Court can interfere with the directions of the Subordinate Courts.

In view of the law laid down by the Apex Court, this Court cannot exercise its power under Article 227 of the Constitution of India though the order is wrong, since the power can be exercised only to keep the subordinate Courts and Tribunals within its bounds.

Hence, I find no ground to interfere with the order passed by the Trial Court and consequently, the civil revision petition is liable 16 AIR 2005 SC 3820

to be dismissed, but, limiting the proposed amendment to the extent of amendment mentioned in memo dated 19.06.2017 extracted in paragraph 5 of the body of order. In the result, civil revision petition is dismissed. Consequently, miscellaneous applications pending if any, shall also stand dismissed. No costs.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date: 16.08.2017 SP