APHC010226232024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] THURSDAY,THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL REVISION PETITION NO: 1108/2024 Between: Chakkapalli Satyvathi ...PETITIONER AND Haridasula Chakradhara Rao and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. M R S SRINIVAS Counsel for the Respondent(S): 1. A S C BOSE VS,J crp_1108_2024 2 ORDER: This civil revision petition is filed by the petitioner/plaintiff under Article 227 of the Constitution of India challenging the order dated 09.02.2024 passed in I.A.No.205 of 2021 in O.S.No.100 of 2016 by the VII Additional District Judge (FTC), Peddapuram, whereby, the trial Court dismissed the said interlocutory application filed Under Order VI Rule 17 of Code of Civil Procedure (for short ―C.P.C.‖) to permit the petitioner/plaintiff to amend the plaint. 2) For the sake of convenience, the parties to the revision will hereinafter be referred as petitioner and defendants, as arrayed before the Trial Court in I.A.No.205 of 2021. 3) The petitioner-plaintiff initially filed O.S.No.100 of 2016 on the file of the VII Additional District Judge (FTC), Peddapuram against the respondents herein for permanent injunction in respect of suit schedule property contending that she is the owner of the plaint schedule property to an extent of Ac.2.45 cents of land in R.S.No.32 of Uttarakanchi village. Originally, the plaint schedule property is the ancestral property of her husband. They are having two sons by names Sanyasi Raju and Apparao. Her husband and her two sons have partitioned the plaint schedule property in the year 1995 and in the said partition, the plaint schedule property fell to the share of her sons and each of them has taken possession of the property that fell to their share, ever since they were enjoying the property without interruption from any person, by paying taxes to the Government. Her sons names are also mutated in all the revenue records in respect of the properties that fell to their share and they have also got issued Pattadar pass books in their favour. Her sons Sanyasi VS,J crp_1108_2024 3 Raju and Apparao, out of the love and affection, have executed registered gift deeds in respect of the property that fell to their share in her favour on 16.09.2009. Government also issued pattadar passbooks and title deeds in her name. 4) The respondents herein, who are having land in the same survey number of Uttarkanchi Village, requested the petitioner herein to sell the plaint schedule property in the year 2015, for which she refused. Due to the same, the respondents having developed grudge on the petitioner, in order to grab suit property, have got issued a registered legal notice dated 11.04.2016 by creating an agreement of sale deed dated 09.06.1997 as if her husband has agreed to sell Ac.2.60 cents of land. On verification, she came to know that the respondents have created the alleged agreement of sale from the person who has no right, title or possession over the suit schedule property. Therefore, the petitioner herein filed O.S.No.100 of 2016, wherein the trial Court has granted temporary injunction vide order dated 30.05.2016 passed in I.A.No.52 of 2016 restraining the respondents herein from interfering with her peaceful possession, aggrieved by the same, the respondents filed C.M.A.No.501 of 2016 on the file of this Court, and the same was allowed vide orders dated 12.07.2016. Under the guise of the said order, the respondents herein illegally trespassed in to the suit schedule property, therefore, the petitioner herein was constrained to filed I.A.No.205 of 2021 under Order VI Rule of C.P.C. seeking amendment of the plaint. After hearing both the parties, the trial VS,J crp_1108_2024 4 Court dismissed the same. Aggrieved by the order of the trial Court, the present civil revision petition has been preferred. 5) When the present revision came up for admission on 10.05.2024, this Court has passed the following interim order. ―.......... List on 18.07.2024. Till the next date of listing, all further proceedings in O.S.No.100 of 2016, on the file of VII Additional District Judge (FTC), Peddapuram, shall remain stayed.‖ 6) The said interim order has been extended from time to time. 7) During hearing, learned counsel for the petitioner-plaintiff contended that the amendment can be allowed at any stage of the suit. As the respondents-defendants illegally trespassed into the suit schedule property during pendency of the suit, she has filed the present application seeking amendment of the plaint, therefore, to decide the real controversy, the present petition has to be allowed. Therefore, he requested this Court to allow the revision. 8) Learned counsel for the respondents-defendants supported the order of the Court below in all respects and requested this Court to dismiss the revision petition. 9) Admittedly, the petitioner-plaintiff filed O.S.No.100 of 2016 seeking permanent injunction restraining the defendants, their men, from interfering with the peaceful possession and enjoyment of the suit schedule land. During pendency of the suit, the trial Court VS,J crp_1108_2024 5 granted temporary injunction vide order dated 30.05.2016 in I.A.No.52 of 2016 restraining the respondents therein from interfering with the peaceful possession of the plaintiff, aggrieved by the same, the respondents preferred C.M.A.No.501 of 2016 on the file of this Court. This Court has allowed the said C.M.A.No.501 of 2016 vide orders dated 12.07.2016, and under the guise of the said order, the respondents herein illegally trespassed into the suit schedule property, therefore, the petitioner – plaintiff was constrained to file an interlocutory application vide I.A.No.205 of 2021 under Order VI Rule 17 of C.P.C. for amendment of plaint by adding relief of vacant possession of the plaint schedule property, but the same was dismissed by the trial Court. 10) The petitioner-plaintiff filed the petition under Order VI Rule 17 of C.P.C. For better appreciation, this Court feels it appropriate to extract Order VI Rule 17 of C.P.C., which is as follows: ―17. 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.‖ 11) Normally, when petitions under Order VI Rule 17 of C.P.C. are filed at pretrial stage, Court would order such applications VS,J crp_1108_2024 6 granting leave to parties to amend their pleadings and if it is post- trial amendment, then Court may put on guard in allowing such applications since it would cause prejudice to the other parties to the suit or proceedings. 12) According to Order VI Rule 17 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. The principles to allow petitions under Order VI Rule 17 of C.P.C. are well settled, namely; 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 respondents or such amendment would not amount to withdrawal of unequivocal admissions made in the pleadings as held by the Apex Court in ―Rajkumar Guruwara (dead) through LRs Vs. S.K. Sarwagi and Company Private Limited and another1‖. In view of the law declared by the Apex Court in the above judgment, the Court has to find out whether the proposed amendment would fall within the parameters laid down by the Apex Court and if it would fall within the ambit of the guidelines, Courts can allow such amendments, otherwise reject the same. 13) In ―A.Krishna Rao Vs. A.Narahari Rao and others2‖ while dealing with an application under Order VI Rule 17 of C.P.C., this 1 (2008) 14 SCC 364 2 2015 (1) ALT 113 VS,J crp_1108_2024 7 Court held that ―even if the proposed amendment has the effect of raising a conflicting plea, that by itself would not constitute ground to reject the amendment, for it is for the plaintiff to ultimately justify his pleadings and prove the same with reference to evidence. After all, procedure is handmaid of justice and a party cannot be deprived of his right to raise pleadings by way of amendment, unless the proposed amendment results in failure of justice.‖ 14) In ―Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and others3‖the Apex Court laid down certain guidelines for granting or denying relief under Order VI Rule 17 of C.P.C., viz; as follows: "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; 3 2009 (8) SCJ 401 VS,J crp_1108_2024 8 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.‖ 15) In ―T.P.Palaniswami Vs. Deivanaiammal4‖, relied on by the learned counsel for the petitioner, the Madras High Court held that in a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the Court is duty bound to allow the amendment and while doing so, it will inappropriate to adjudicate upon the questions which would arise, on the amendment being allowed and that stage will come only later after the amendment is allowed, issues are framed and the parties placed their evidence and made their submission through arguments. 16) In ―K.Ram Reddy Vs. K.Kantha Reddy5‖ relied on by the learned counsel for the petitioner, the High Court of Andhra Pradesh at Hyderabad following the said principle held that the rules of procedure are nothing but handmaids of substantive law and justice and the intention must be to dispense justice in the real sense and pure technicalities at the level of procedure shall not stand in the way of the Courts to recognise the rights of parties which they were otherwise entitled to. 4 AIR 1984 Madras 19 5 1997 SCC OnLine AP 390 VS,J crp_1108_2024 9 17) In view of the guidelines laid down by the Apex Court, which are 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, the courts while deciding such prayers should not adopt a hyper-technical approach. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. In the present facts of the case, no fresh claim is made, the proposed amendment would not change the nature and character of the suit constitutionally or fundamentally. 18) In ―Rajesh Kumar Aggarwal and others v. K.K.Modi and others6‖ the Apex Court made it clear that merits of the proposed amendment cannot be gone into at the stage of allowing amendment and the object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 19) Further, as per Article 64 of the Limitation Act, the suit for possession of immovable property based on previous possession has to be filed within 12 years from the date of dispossession. In the 6 AIR 2006 SC 1647 VS,J crp_1108_2024 10 present case, suit for permanent injunction was filed in the year 2016 and the interlocutory application seeking amendment of the plaint by adding relief of grant of decree for vacant possession of the schedule property was filed in 2021, therefore, it can be said that the plaintiff sought for amendment of the plaint within a period of five (5) years. Therefore, the amendment is not barred by limitation. 20) Order VI Rule 17 of C.P.C. consists of two parts, namely; first part is discretionary and leaves it to the Court to order amend pleadings and second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of deciding real controversy between the parties. The real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties. Even if the principle laid down in the above judgment is applied to the present facts of the case, the Court cannot negate the relief of amendment since the petitioner wanted to clean the dirt by bringing certain facts to the notice of Court by amending plaint duly adding the relief of grant of decree for vacant possession of the schedule property by filing petition under Order VI Rule 17 of C.P.C. 21) In view of my foregoing discussion, I find that the order of the trial Court is erroneous as it has failed to exercise discretion properly and such finding is liable to be set aside by exercising power under Article 227 of the Constitution of India. VS,J crp_1108_2024 11 22) In the result, the civil revision petition is allowed setting aside the order dated 09.02.2024 in I.A.No.205 of 2021 in O.S.No.100 of 2016 on the file of the VII Additional District Judge (FTC), Peddapuram, granting leave to the petitioner to amend the plaint as prayed in I.A.No.205 of 2021. No costs. 23) Consequently, miscellaneous applications pending if any, shall also stand closed. ______________________ JUSTICE V.SUJATHA 08.01.2026 NSM/Ksp VS,J crp_1108_2024 12 264 THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL REVISION PETITION No: 1108 of 2024 08.01.2026 NSM/Ksp