Judgment:
ORDER
P.S. Narayana, J.
1. This Civil Revision Petition is coming up 'for admission'.
2. Heard Sri P. Rajasekhar, the learned Counsel representing the revision petitioners and Sri Mohd. Moinuddin representing Sri Wasim Ahmed Khan, the learned Counsel representing R6.
3. It is stated that Sri Wasim Ahmed Khan had lodged caveat on behalf of R6. It is shown that R3 to R5 are not necessary parties in the above civil revision petition and the first respondent is no more.
4. This Civil Revision Petition is filed by the unsuccessful petitioners/plaintiffs being aggrieved of an order, dated 24th day of March, 2009, made in I.A. No. 161 of 2008 in O.S. No. 846 of 2002 on the file of the IV Additional Senior Civil Judge, (Fast Track Court), Vijayawada.
5. The above said application i.e., I.A. No. 161 of 2008 was filed by the petitioners/plaintiffs praying for permission to amend the plaint by incorporating the material facts, which had been averred in the affidavit, filed in support of the application. The said application was resisted by the 6th respondent-6th defendant and the learned IV Additional Senior Civil Judge (Fast Track Court), vijayawada, after recording reasons came to the conclusion that the application is devoid of merits and, accordingly, dismissed the same with costs. Aggrieved by the said order, the present Civil Revision Petition had been preferred by the unsuccessful petitioners/plaintiffs under Article 227 of the Constitution of India.
6. Sri Rajasekhar, the learned Counsel representing the revision petitioners would maintain that the proposed amendment, which had been prayed for had been aimed in bringing the material particulars on record and these facts does not change the cause of action and the nature of the suit and no prejudice would be caused to the 6th defendant. The learned Counsel also would maintain that the revision petitioners/plaintiffs do not propose to adduce any further evidence, and in such a case, not giving an opportunity to the revision petitioners for denying the will would cause great prejudice to them, hence, the application has to be allowed, at least on certain terms. The learned Counsel placed strong reliance on several decisions in this regard. While further elaborating his submissions, the learned Counsel would submit that the proposed amendment became necessary in the light of the subsequent events and the step of giving an opportunity to file rejoinder also had not been followed. The learned Counsel in all fairness would maintain that no doubt there is some delay in moving the present application but, in the light of the stand taken by the petitioners/plaintiffs that they do not propose to adduce any further evidence, even such a delay, can be compensated by imposing heavy terms. The learned Counsel would maintain that if the relevant facts are not pleaded even at a later point of time, the parties may meet with certain complications, which would lead to more technical complications.
7. Per contra, Sri Mohd. Moinuddin, representing Sri Wasim Ahmed Khan, the learned Counsel appearing for R6, had taken this Court through the relevant facts and would maintain that it may be true that the rigour of the proviso to Order VI Rule 17 of the Code of Civil Procedure may be watered down to some extent, in case of necessity arising out of the subsequent events. The learned Counsel also would maintain that on a careful scrutiny of the facts, it is clear that even after the impleading application had been allowed, for nearly three years the revision petitioners slept over the matter and at the fag end when the matter had been posted for arguments, this application had been brought up and no cogent reasons for allowing the application had been specified in the affidavit, filed in support of the application. Hence, in any view of the matter, it cannot be said that even from the date when the sixth defendant was brought on record, the petitioners/plaintiffs have been diligent by moving any appropriate application for a period of about three years.
8. Heard the learned Counsel on record.
9. The petitioners/plaintiffs filed I.A. No. 161 of 2008 in O.S. No. 846 of 2002 on the file of the IV Additional Senior Civil Judge (Fast Track Court), Vijayawada, under Order 6 Rule 17 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code') for the purpose of convenience, praying for the under noted proposed amendment:
Proposed amendment:
Para - XVIII -A: During the pendency of the suit, making appearance and filing his written statement along with the 2nd defendant, the 1st defendant died on 01.10.2005. His wife predeceased him. The plaintiffs came to learn in the village that his son: Ramachandra Patnal is brought up by his maternal uncles and now his whereabouts are not known to the plaintiffs. After the sale of the property of the said Ramachandra Patnal, he is not seen in the village of Royyuru or nearby places. He lost his title and interest in respect of his share of properties of the joint family of the 1st defendant. Hence, the plaintiffs submitted to the Hon'ble Court, that there are no legal heirs to their knowledge and the trial of the suit was commenced. The 2nd defendant who is on record as alleged lessee of the 1st defendant during his lifetime also did not furnish the particulars of the legal heirs of his so-called master. He did not also mention in his proof affidavit dated 14.03.2006, which was treated as chief examination as D.W.1, he did not state that whether the deceased 1st defendant died intestate or executed any document. While matters stood thus, the 6th defendant, who got filed a petition on 18.04.2006 in I.A. No. 326 of 2006 claimed that he is the legatee of the deceased 1st defendant and as such he is the absolute owner of the said property bequeathed to him, under the Will dated 18.11.2004.
It is humbly submitted by the plaintiffs that the alleged will dated 18.11.2004 which is relied on by the 6th defendant which is said to have been executed by the deceased 1st defendant must be a fabricated document and to the knowledge of every person in the village, there is whisper that the said Bommadevara Krishna Murthy executed such a will to a stranger, leaving his own son. Hence these plaintiffs are not admitting the said will dated 18-11-2004 against which the 6th defendant claims the plaint schedule property and as such the 6th defendant has to prove the said will. Hence, the plaintiffs submit that the 6th defendant is not at all a legal heir to the deceased 1st defendant and he is not a relative to the deceased and that he cannot be treated as legal representative of the deceased 1st defendant.
10. It is stated in the affidavit filed in support of the application, that they purchased the plaint schedule property under different sale deeds and during the pendency of the suit the first defendant died intestate and his wife predeceased him and his only son being elsewhere his whereabouts are not known. The second defendant called himself as a lessee was colluding with the first defendant. It is also stated that at one stage, after examination of the second defendant, the 6th defendant claiming himself as the owner of the plaint schedule property and he is a legatee of the deceased-first defendant, impleaded himself in the suit. He filed his written statement and the petitioners had no opportunity of filing rejoinder. The trial of the suit commenced and the evidence on plaintiffs' side was closed. The said party examined himself as D.W.1 and D.W.4 was also examined. This evidence was let in to prove the will, dated 21.10.2004, said to have been executed by the deceased-1st defendant in his favour. It is also stated that during the course of examination, the 6th defendant submitted some documents-extract of adangals issued by the Mandal Revenue Officer, Thotlavalluru as Ex.B-26 and 27 and certain facts and particulars in relation to these documents also had been narrated. It is also stated that they were advised that any amount of cross-examination without pleadings may not be of any consequence and, hence, on such advice, the petitioners moved the said application.
11. In the counter filed by the 6th respondent/6th defendant, it was specifically stated that the plaint was amended as per the orders made by the Court, allowing an application in I.A. No. 365 of 2006 on 26.07.2006, in pursuance of which, the 6th defendant was impleaded. Further facts relating to the examination of D.Ws. 3 and 4 and Ex.B-25 also had been narrated. It is stated that the question of seeking amendment of the pleadings or the second time on the same cause of action would not arise and even otherwise it would not alter the situation. The plaintiffs having availed the opportunity and having not moved any application, at the fag end i.e., at the stage of arguments thought of filing this application. Hence, the same is to be dismissed.
12. Certain further facts also had been narrated in detail in Ex.B-25.
13. Order VI Rule 17 of the Code reads as hereunder:
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.
14. No doubt, strong reliance was placed on the decision reported in Sajjan Kumar v. Ram Kishan (2005) 13 SCC 89, and submissions at length were made that in the light of the decision of the Apex Court, the proposed amendment may be allowed on imposition of heavy terms.
15. Further, strong reliance was also placed by the learned Counsel on the decision reported in Usha Devi v. Rijwan Ahmad : 2008 (2) ALT 21 (SC) : 2008 (1) SCJ 945 : AIR 2008 SC 1147. It was observed at paragraph 11 as under:
As to the submission made on behalf of the respondents that the amendment will render the suit non-maintainable because it would not only materially change the suit property but also change the cause of action it has only to be pointed out that in order to allow the prayer for amendment the merit of the amendment is hardly a relevant consideration and it will be open to the defendants-respondents to raise their objection in regard to the amended plaint by making any corresponding amendments in their written statement.
16. Reliance was also placed on the decision reported in Ram Sarup Gupta (Dead) By L.R.S. v. Bishnu Narain Inter College 0043/1987 : AIR 1987 SC 1242, at paragraphs 6 and 7, it was observed as under:
The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words, which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Shri Chandramaul : (1966) 2 SCR 286 : AIR 1966 SC 735 a Constitution Bench of this Court considering this question observed (at p. 738 of AIR):
If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.Before we examine the pleas raised by the defendants in their written statement it is necessary to keep in mind that the plaintiff himself stated in para 4 of the plaint that the property in dispute has been in occupation of the school as licensee under the permission of Raja Ram Kumar Bhargava erstwhile owner of the property. Defendants 11 to 17 in paras 10 to 16 of their written statement while dealing with the question of license expressly stated that the school had made pucca constructions and had been making various substantial additions and alterations in the building without any objection. Raja Ram Kumar Bhargava had given away the premises in dispute permanently to the school and they have been in occupation of the premises for the last 20 years and during that period they have been making substantial additions and alterations in the building including re-plastering, re-flooring etc., by incurring heavy expenses. In para 18 of their written statement they pleaded that the license was coupled with a grant and in any case it was a permanent and irrevocable license in favour of the school and the same could not be revoked by the plaintiff. The pleadings so raised make it apparently clear that the defendants had raised a specific plea that the license was coupled with grant, it was a permanent and irrevocable license and in pursuance of the license the licensee had carried out work of permanent character incurring expenses for the advancement of the purpose for which the license had been granted. In fact, issues numbers 4, 5 and 6 framed by the trial Court relate to the question whether license was irrevocable. The issues so framed involved the question of irrevocability of the license under both the Clauses (a) and (b) of Section 60 of the Act. The plaintiff went to trial knowing fully well that defendants' claim was that the license was irrevocable, on the ground that they had made permanent constructions and incurred expenses in pursuance of the license granted for the purpose of school. The plaintiff knew the case he had to meet, and for that purpose he produced Raja Ram Kumar Bhargava in evidence in support of his plea that the license was a simple license and it was not irrevocable as pleaded by the defendants. This question has been considered in great detail by T.S. Misra, J. and we are in agreement with the view taken by him.
17. It is no doubt true that there may be certain pleas to be raised even after the commencement of the trial. Certain subsequent events may arise and such subsequent events may necessitate the parties to move appropriate applications to amend their respective pleadings. Even in such a case, a proposed amendment to be based on such subsequent events, the rigour of the proviso to Order VI Rule 17 of the Code, cannot be totally watered down, if the Court is otherwise satisfied about the diligence and after recording reasons, the courts may exercise the discretion of permitting amendments based on such subsequent events. If the facts of the present case are carefully examined, though it is stated that no opportunity for filing rejoinder had been given, it is evident that even after the party was impleaded having prosecuted the case further for sufficiently a long time i.e., about 3 years, at the fag end when the matter had been posted for arguments, this application had been thought of. Hence, this Court is thoroughly satisfied that the petitioners are unable to specify the ingredients of the proviso even if it is to be taken as a subsequent event because of the lapse of time even after the Court allowing the application for impleading of the party.
18. It is however, brought to the notice of the Court that an issue relating to the validity of the will had been settled. It is needles to say that the said issue has to be decided in accordance with law, in the light of the evidence adduced by the parties.
19. Hence, viewed from any angle, the order under challenge does not suffer from any illegality whatsoever warranting interference under Article 227 of the Constitution of India and, accordingly, the Civil Revision Petition shall stand dismissed, at the stage of admission. No order as to costs.