P.Durga Reddy and Ano Vs. B.Yadi Red - Court Judgment

HONOURABLE Dr.

JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION No.1811 of 2014 24-12-2014 P.Durga Reddy and another.Petitioners B.Yadi Reddy .

Respondent Counsel for the Revision Petitioners : Sr.V.Ravinder Rao Counsel for the Respondent : Sr.P.Venkat Reddy : ?.

Cases referred: 1.

2014(2) ALT5262.

2005(5) SCJ5193.

2007(2) SCJ5694.

2005(3) SCJ3035.

AIR2007SC25116.

(2007).SCC7377.

(2008)14 SCC3648.

2012(2) SCJ4369.

2014(3) ALD36110.

(2006).SCC38511.

2011(5) ALD44512.

AIR2004SC410213.

AIR2007SC11314.

2005(5) ALT42915.

2008(5) ALD32216.

2014(2) ALT52617.

AIR2008SC223418.

(2009)11 SCC32919.

(2005)13 SCC8920.

Andh W.R.1973-2-253 21.

(2010).SCC32922.

(2013).SCC374HONOURABLE Dr.

JUSTICE B.SIVA SANKARA RAO CIVIL REVISION PETITION No.1811 of 2014 ORDER

: 1) The unsuccessful petitioners filed this revision against the order dated 28.04.2014 in I.A.No.1866 of 2013 in O.S.No.585 of 2007 on the file of Principal Junior Civil Judge, Sangareddy.

The Petitioners who are plaintiffs initially filed the suit in O.S.No.585 of 2007 for specific performance of agreement for sale.

Prior to it one S.Gopal Reddy filed a suit in O.S.No.417 of 2007 for declaration of title against the Petitioners and both the suits were clubbed and evidence was lead in O.S.No.417 of 2007.

After evidence let in by both sides and before advancing arguments, the Petitioners filed an application under Order VI Rule 17 C.P.C seeking permission to interchange the boundaries on northern and southern side stating that there was a typographical mistake in the schedule annexed in O.S.No.585 of 2007.

In the said I.A.the Respondents filed counter affidavit and contended that on the aspect of boundaries D.Ws 2 to 5 were cross-examined and if the proposed amendment is allowed, by changing the boundaries of the schedule land which is more particularly elicited in the cross-examination, there is every possibility to the Plaintiffs to fill up the lacunae and prayed to dismiss the application.

2) After hearing both sides and after perusal of the material on record, the trial Court dismissed the application holding that the petitioners could not explain the delay in seeking amendment to get over the rigidity of proviso to Order VI Rule 17 C.P.C.basing on the expression of this Court in Veluri Raja Rajeswari V.

Veluri Santhansagar Reddy .

3) Aggrieved by the said order the Petitioners/Plaintiffs preferred the present revision contending that the Court below failed to appreciate that the mistake in the boundaries mentioned in the suit schedule is an inadvertent one and typographical error and amendment of which cannot be tested on the ground of due diligence, that soon after noticing the typographical mistake in the plaint schedule and in the body of the plaint the application was filed and hence the concept of due diligence has no application, that the defendant did not dispute the boundaries as mentioned in the plaint in the written statement, that the only question was about non- mention of boundaries in the agreement, that the Court below erroneously found fault with the Petitioners in not getting the mistake rectified at the earlier stages of the suit while it is the specific case of the Petitioners that the mistake is typographical and it was noticed recently and seeks to allow the revision by setting aside the dismissal order of trial Court.

The learned counsel during the couRs.of arguments reiterated the same.

Whereas the learned counsel for the Respondent contended that there is nothing to interfere in the order of the lower Court by this Court while sitting in the revision and prayed to dismiss the revision.

4) Now, the points for consideration are (i) Whether the impugned order requires interference and if so, with what observations?.

(ii) To what relief?.

POINT No.1: 5) The order VI Rule 17 prior to amendment by Act 46/99 scope was vividly enlightened by several expressions of the Constitutional Courts in saying even at the stage of second appeal also amendment of pleadings can be allowed, provided it does not effect or prejudice the rights of the opposite party, muchless changes the cause of action.

However, that liberal approach is curtailed by taking away the right once trial commenced by Amended Act 46/99.

It is no doubt with a liberal approach to be required as procedural law is the hand maid and not mistress of justice, there was a further amendment that was proposed and ultimately came into force by amended Act 22/2002 with effect from 01.07.2002 introducing the proviso to permit amendment which could not be sought before commencement of trial despite due diligence.

For more clarity, the order VI Rule 17 is required to be reproduced which reads 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 controveRs.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 6) From the above, the proviso is an exception to the taking away the right of amendment once the trial is commenced, to subserve the ends of justice in saying, where 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.

This is the important rider required to be satisfied, no doubt in other respects, the law existing prior to the amendment by Acts 46/99 and 22/2002 comes to the aid of the Court if that condition is satisfied.

It was the interpretation initially laid down by the Apex Court in Salem Advocate Bar Association, T.N V.

Union of India known as Salem Bar Association case-2.

The said scope of order VI Rule 17 after amendment by Act 22 of 2002 with effect from 01.07.2002 was enlightened in the said expression of Salem Bar Association Case-2 supra was relied upon in Ajendraprasadji N.Pande V.

Swami Keshavprakeshdasji N.

that under the proviso no application for amendment shall be allowed after trial has commenced, unless despite of due diligence, the matter could not be raised before commencement of the trial.

It is to say that once trial of the case has commenced, no application of pleadings shall be allowed unless the above requirement in the proviso of due diligence is satisfied.

No doubt it was held in Kailash V.

Nankhu that trial commences from hearing and settlement of issues and filing of chief affidavit of plaintiff.

It is referring to some of the expressions among other in Andhra Bank V.

ABN AMr.Bank N.V it was held that delay itself is no ground for refusal of prayer for amendment as the only question to be considered by Court is whether such amendment would be necessary for decision of the real controveRs.between the parties in suit and at that stage the Court cannot go into question of merit of amendment.

Once trial commenced, amendment sought, to satisfy the requirement of due diligence.

It was also held by taking a similar view in the other expression in Ramachandra Sakharam Mahajan V.

Damodar Trimbak Tanksale that when the amendment sought for would enable the Court to pinpointedly consider the real dispute between the parties and thereby help to render a decision more satisfactorily, it ought to be allowed.

In Rajkumar Gurawara (dead) through LRs V.

S.K.Sarwagi & Co.PVT.LTD.it was held at Para No.13 that though pre-trial amendments can be allowed on such terms where Court finds just, for once trial commenced the showing of due diligence as per proviso to Order VI Rule 17 C.P.C is the prerequisite.

These expressions in fact say the basic requirement of due diligence is to be satisfied, once trial is commenced, though for the pre-trial amendment it can be liberal made subject to other rideRs.It is in the wake of the above, in J.Samuel V.

Gattu mahesh , it was held in paras 16 to 22 in nutshell by referring to Ajendraprasadji supra that the word due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested.

Due diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attend an anticipatory relief.

An advocate representing some one must engage in due diligence to determine that the representations made are factually accurate and sufficient.

The term due diligence is specifically used in the Code so as to provide a test for determining whether to exercise the discretion the situations of requested amendment after the commencement of trial or not.

The term due diligence determines the scope of a partys constructive knowledge, claim and is very critical to the outcome of the suit.

No doubt, typographical errors or mistakes that can be considered otherwise, however, when plaint is supposed to be singed by the party and at the advice of the counsel signed and verified the pleading by showed some attention, this omission could have been noticed and rectified there itself, that also cannot be construed as due diligence.

In Veluri Raja Rajeswari supra this Court also held the pre-requisite where trial commenced to show due diligence for not seeking the amendment of the pleading earlier.

In the later expression of this Court in Waheeda Begum V.

Md.Yakub by referring to several expressions including the Rajkumar Gurawara supra particularly at para No.24 that as per the expression, it confers jurisdiction on the Court to allow either party to alter or to amend the pleadings at any stage of pleadings and on such terms as may be just, provided such amendment seeks determination of the real question and controveRs.between the parties; that pre-trial amendments are to be allowed more liberally, than those amendments sought to be made after commencement of the trial.

It also referred J.Samuel supra particularly in para No.26 in saying that no application for amendment shall be allowed after the trial has commenced, unless the Court has come to the conclusion that in spite of due diligence, the party could not raise the matter before the commencement of the trial.

It also referred the expression in Rajesh Kumar Agarwal V.

K.K.Modi that the Court can take note of events subsequent to the filing of the suit, where necessary, to shorten the litigation.

It is by referring to the expressions, it was held on the facts in Waheeda begum supra that the petitioners could establish that in spite of due diligence they could not raise the matters before commencement of trial and the bar laid down under proviso to Order VI Rule 17 C.P.C thus no way applied and consequently dismissal of the amendment petition by the trial Court is held unjustified.

7) Even the decision of Single Judge of this Court in Narne Estates (P) Ltd V.

N.Gopal Naidu the law laid down in Ajendraprasadji supra was referred in holding that petition filed five years later to the plaint adding prayer for declaration of G.P.A executed in favour of the 1st respondent by various land owners while he was working as Director of the Company, for amendment of the same held unsustainable for lack of due diligence, though otherwise as held in Pankaja V.

Yellappa and State of A.P.V.

Pioneer Builders , the mere delay itself is not a ground to reject the amendment when it results to multiplicity of proceedings.

The other decision placed reliance of this Court in Rachabattuni Govinda Rao V.

Jonnadula Sambasiva Rao on facts held the amendment sought in the suit for recovery of amount, to incorporate a statement to the effect that the consideration was paid through a cheque drawn on S.B.I, after the facts elicited in the cross-examination of P.W-1 held cannot be allowed for lack of due diligence.

The decision in another expression of single Judge of this Court in Siluveru Lakshmamma V.

Siluveru Sankaraiah on facts held the after thought amendments after commencement of trial can be disallowed as unexplained delay and latches are also grounds to negate the amendment.

The Court referred Pioneer Builders supra and also Salem Bar Association case supra before arriving the conclusion.

The other expression of this Court in Muthukur Gram Panchayat rep.

by its Executive Officer V.

Kakuturu Ramesh Reddy was in the suit for permanent injunction filed claiming easementary right to restrain the defendant-panchayat from making any constructions in the suit site, plaint sought amendment after commencement of trial and during cross- examination of plaintiff was dismissed for lack of due diligence.

The other expression of the Apex Court in Chander Kanta Bansal V.

Rajinder Singh Anand it was held that in a suit for injunction restraining the defendant from obstructing the lane in the suit property, defendant seeking amendment of written statement after closure of evidence of both sides to file partition agreement that was not brought in the couRs.of evidence and the same when allowed by amendment to bring in evidence tantamounts to retracting what as pleaded in the written statement held amendment cannot be allowed for lack of due diligence in saying that while exercise of discretion, care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of allowing amendment.

It was held that amendment which appears clearly to be an after thought to be disallowed.

8) The other decision placed reliance is of the Apex Court in Peethani Suryanarayana V.

Repaka Venkata Ramana Kishore where it was held that Court holds power to allow such amendment, provided the application is bonafide and does not cause injustice to either side and does not affect the rights already accrued to the other side.

It was on facts in the suit for partition amendment of plaint saying some typographical error is there as to subject matter that requires correction when it causes no prejudice to the so called pendentelite purchasers of suit land by correction of survey Nos.462 and 463 from what plaint originally described of Survey No.165, when that Survey No.165 is re-assigned as 463 and the mentioning is to correct the typographical mistake.

For that conclusion referred Sajjan Kumar V.

Ram Kishan para-5 holding the amendment sought is for the purpose of bringing to the record the real question in controveRs.between the parties and refusal to permit the amendment would create needless complications at the stage of execution in the event of the appellant-plaintiff succeed in the suit.

In fact, the boundary description survey number or boundaries if outcome of bonafide mistakes can be allowed if not come under Sections 152 or 153 C.P.C atleast under Section 151 C.P.C to subserve the ends of justice.

In this regard, it was laid down way back in the expression of this Court in Kalkonda Pandu Rangaiah V.

Kalkonda Krishnaih as follows: As a result of the above discussion my conclusions on the three points formulated above are as follows:- Where clerical or arithmetical mistakes occur in copying the plaint schedules from the documents anterior to the suit the proceedings in the suit can always be corrected under Section 152 C.P.C.In such cases even the documents on the basis of which the suit was filed may be amended either in a suit under Section 31 of the Specific Relief Act or in a proper case even by an application under Section 152 C.P.C provided it is a case of misdescription and not one of disputed identity.

In such cases, if Section 152 is invoked it would obviate a suit which would ultimately bring the same result.

In all cases, where clerical or arithmetical errors creep-in in the plaint and as a consequence in the decrees as well, they can be rectified at any time even after a final decree.

A case of such an amendment petition under Section 152 C.P.C.filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case.

9) The law succinctly laid down from the expressions is that the requirement of satisfying the due diligence concept for the trial once commenced and in particular for post trial amendment is a mandatory requirement being a pre-requisite, besides the other considerations, where the amendment is necessary to resolve the real controveRs.and where does not cause grave prejudice or injustice to the other side and where it does not alter the cause of action or inconsistent to the existing material in the pleadings on record.

It can be allowed where the amendment is necessary to explain the material on record.

10) From this undisputedly the trial is at the fag end of both suits clubbed together and the plaint schedule boundaries are disputing by the defendants of the suit in the specific performance suit O.S.No.585 of 2007 and the same is there also in the evidence on plaintiffs side of O.S.No.417 of 2007 where the suit in O.S.No.585 of 2007 clubbed with for joint trial and the defendants in O.S.No.585 of 2007 let in evidence as D.Ws 1 and 2 and also on their side D.Ws 3, 4 and 5 examined and the plaintiff in O.S.No.585 of 2007 as D.W-1 in the chief examination not explained the same.

It is no doubt, the contention of the revision petitioner who is the plaintiff in O.S.No.585 of 2007 in seeking amendment of the two of the boundaries to the plaint schedule supra is that it could not be noticed even at that stage and it is only in the cross-examination page No.36, para No.2 it was elicited and in page 26, Para No.3 of the written statement of the defendants in O.S.No.585 of 2007, the defendants did not even dispute the boundaries.

It is in fact, the proposed amendment sought for is not for Eastern and Western boundaries, but for North to change as South and South to change as North and not even to introduce any new names, but for saying the mistake occurred by inadvertence and unnoticed.

It is no doubt true in the so called agreement for sale of which the suit for specific performance of O.S.No.585 of 2007 maintained, the sale agreement does not contain boundaries and it is only in the plaint it is specified as part of S.No.295 admeasuring Ac.0- 20 guntas within the four boundaries and now sought for amendment of the boundary name mentioned as North as South and South as North.

From this, there is nothing to show what grave prejudice being caused to the defendants in O.S.No.585 of 2007 or plaintiffs in O.S.No.417 of 2007 when they are disputing the very contract for sale in favour of plaintiff in O.S.No.585 of 2007 and its enforceability and not even admitting of sale is only within the boundaries and by change of the Northern to Southern and Southern to Northern, it is inconsistent to the stand already taken in the plaint pleadings or causes thereby any grave prejudice to the opposite party.

When such is the case, the amendment when required to resolve the real controveRs.and to avoid future complications in the event of success in execution or the like.

It is clearly stated that it could not be noticed before pre-trial stage, that too when the defendants written statement in O.S.No.585 of 2007 no way disputed the boundaries and its correctness.

Thus, it can be said that the plaintiff in O.S.No.585 of 2007 could not seek the amendment before commencement of trial despite due diligence, as it is noticed from the evidence let in, in the suits clubbed together after commencement of trial and when it is to resolve the real controveRs.as per the plaintiff in O.S.No.585 of 2007 and when delay itself is not a ground to reject the amendment, the trial Court ought to have allowed the amendment, when it no way causes withdrawal of any inconsistent admission in the pleadings or grave prejudice to other side or changes the cause of action or nature of suit, but for the said delay to compensate.

The lower Courts order dismissing the amendment application now sought to be intervened in the revision within its limited scope for saying is improper exercise of jurisdiction vested and when it causes prejudice to the revision petitioners/plaintiffs in O.S.No.585 of 2007, this Court has to interfere to set aside the order impugned in the order vide Shalini Shyam Shetty V.

Rajendra Shankar Patil that was followed in Sameer Suresh Gupta V.

Rahul Kumar Agarwal .

11) Accordingly and in the result, the revision is allowed by setting aside the dismissal order of amendment sought in I.A.No.1866 of 2014 in O.S.No.585 of 2007 by the trial Court by allowing the amendment subject to payment of costs of Rs.5,000/- by the Petitioner/Plaintiffs in O.S.No.585 of 2007 to the defendant in that suit within 15 days from the date of receipt of this order and file proof before the trial Court, failing which the order of the lower Court holds good.

There is no order as to costs in the revision.

12) Miscellaneous Petitions pending, if any, in this revision shall stand closed.

________________________ Dr.B.SIVA SANKARA RAO, J Date: -12-2014