Full Judgment
THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.
No.905 o”
04. 10-2012 Mohd.
Azmath and another Nemuri Ramesh Counsel for the petitioners: Sri Pottigari Sridhar Reddy Counsel for respondent : -- : Citations: ORDER: The respondent filed O.S.No.173 of 2007 in the Court of Junior Civil Judge, Medchal, Ranga Reddy District, against the petitioners for the relief of perpetual injunction in respect of the suit schedule property.
The trial of the suit commenced, and it has progressed to a substantial extent.
At that stage, the respondent filed I.A.No.1366 of 2011, under Rule 17 of Order VI C.P.C., with a prayer to permit him to amend the plaint, including the prayer, in the suit.
The basis was that, during the pendency of the suit, the petitioners entered the suit schedule property on 13-09-2011, claiming rights under document dated 10- 05-2004, and thereby, the necessity has arisen to amend the suit, in such a way, that the prayer for declaration of title and recovery of possession is incorporated.
The petitioners opposed the application.
The trial Court allowed the I.A., through order dated 07-01-2012.
Hence this revision.
Heard the learned counsel for the petitioners.
It is no doubt true that the application filed by the respondent was subsequent to the commencement of the trial.
However, the proviso to Rule 17 of Order VI C.P.C., does not impose total prohibition of amendments, even if the application is filed after the trial has commenced.
In case the cause of action has arisen, or the person seeking amendment was disabled from claiming the relief, despite his due diligence, the Court can permit the amendment.
In the instant case, the respondent pleaded that the petitioners entered into possession of the property, during the pendency of the suit, and he felt it necessary to claim the relief of declaration of title and recovery of possession.
The complexion of the suit itself changed.
In such an event, what one has to see is, whether the relief claimed through amendment would have been barred by limitation, had the same been claimed by filing separate suit.
To be precise, the relief which is otherwise barred, when the suit is filed, cannot be claimed through amendment.
The prayer for declaration of title and recovery of possession has to be examined, with reference to the date on which, the respondent is said to have been dispossessed.
For this purpose, the facts pleaded in the affidavit have to be taken on their face value, though it is for him to prove the same and competent for the petitioners to dispute it.
Since the basis for praying for amendment is a development, that has taken place during the pendency of the suit, the rigor contained under the proviso to Rule 17 of Order VI C.P.C., does not act against the respondent.
No interference is warranted with the order under revision.
The C.R.P.
is accordingly dismissed.
The petitioners, however, are granted eight weeks time, from today, to file additional written-statement, dealing with the amendment.
The miscellaneous petition filed in this C.R.P.
shall also stand disposed of.
There shall be no order as to costs.
_______________________ L.
NARASIMHA REDDY, J.
Dt.04-10-2012.