Patchipulusu Mahalakshmi and anr. Vs. Nagolu Ramanamma and ors. - Court Judgment

Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 5 in the plaint-a schedule the questions involved in the suit cannot be effectively adjudicated. though this was not the ground on which the application was dismissed by the learned additional district judge, vizianagaram, i am thoroughly satisfied that this application itself is a misconceived one since, such application cannot be maintained by the defendants.orderp.s. narayana, j.1. defendants 1 and 2, o.s. no. 77 of 1984 on the file of additional district judge, vizianagaram moved an application in i.a. no. 2758 of 2002 under order vi rule 17 read with order vii rule 3 of the code of civil procedure (hereinafter referred to as 'the code') praying to amend the plaint schedule by adding item no. 5 to the plaint-a schedule.2. the first plaintiff, who is the mother-in-law of the first revision petitioner filed the aforesaid suit for partition of the plaint schedule properties and had died during the pendency of the suit and the daughters of the first plaintiff were brought on record as legal representatives, as plaintiffs 2 to 5 and a preliminary decree was passed for partition of plaint-a schedule immovable properties. aggrieved by the said preliminary decree the revision petitioners - defendants 1 and 2 preferred an appeal in a.s. no. 737 of 1987 on the file of this court. it is also stated that this court by judgment dated 5th day of april, 2002 had remanded the matter with certain directions and in view of the same, the said property also has to be included ' as item no. 5 in the plaint-a schedule. hence, the defendants filed the aforesaid interlocutory application for the relief of amendment of plaint-a schedule.3. the said application was opposed by the sixth respondent in the said application stating that the suit was filed in the year 1984 and the defendants filed written statements at the earliest point of time and they had not taken the stand that the saw mill properly is also the joint family property. it was further stated that though the defendants were aware that the property is in enjoyment of mr. p. sanyasi rao, they have not raised the said objection at the appropriate time and having kept quiet for 18 years and having allowed the trespassers to be in possession beyond the statutory period, the revision petitioners-defendants 1 and 2 cannot be permitted to pray for the amendment of the plaint.4. the learned additional district judge, vizianagaram by order dated 6-1-2003, dismissed the said application. aggrieved by the same, the present revision petition is preferred.5. sri n.v. ranganadham, learned senior counsel representing the revision petitioners had drawn attention of this court to the order of remand made in as no. 737 of 1987 and would contend that in view of the findings recorded by this court while making the order of remand it would be definitely essential to amend the plaint, by including item no. 5 also in the plaint-a schedule property. the learned counsel would also maintain that in the absence of item no. 5 in the plaint-a schedule the questions involved in the suit cannot be effectively adjudicated. in the interest of all the parties to the present partition action, it would be just to permit the amendment of the plaint by including item no. 5 in plaint-a schedule. the learned senior counsel would also maintain that in view of the peculiarity of an action relating to partition and especially in the light of remand order, defendants 1 and 2 also can maintain such an application to amend the plaint.6. per contra, sri upendra representing the respondents would contend that the language of order vi, rule 17 of the code is clear and categorical. counsel also would maintain that by virtue of the remand order definitely an additional issue can be framed in relation thereto and the same can be decided. the counsel would contend that at any rate, the defendants cannot pray for such a relief to amend the plaint since the same is impermissible. the learned counsel also submitted that no doubt this was not the ground on which the application was dismissed by the learned additional district judge, but, however, in view of the fact that the application itself is not, maintainable, the order impugned in the crp does not warrant any interference.7. heard both the counsel and perused the affidavit filed in support of the application praying for the amendment of plaint, the counters-affidavit filed by the sixth respondent and also the impugned order.8. as already referred to supra, this court in a.s. no. 737 of 1987 made an order of remand on the 5th day of april, 2002. it is no doubt true that this court observed that as there is no issue or finding with respect to the above-mentioned two items, there is no option except to remand the matter to the court below for fresh consideration and disposal.9. the operative portion of the order of remand reads as hereunder:'it is also contended on behalf of the appellants that the court below did not consider regarding the debts as evidenced under ex.b10 and b11 and supported by the evidence of dws.4, 5 and 7. that apart, there is also no proper consideration in regard to item 3 of a schedule, which is given towards pasupukumkuma to the 2nd defendant. having regard to the same, the appeal is allowed. the matter is remanded to the court below for fresh disposal on merits in accordance with law. the court below is directed to frame a specific issue on all the aforesaid three aspects and dispose of the same, after giving notice to both the parties.'10. having been inspired by the said order of remand and certain findings recorded by this court, defendants 1 and 2 moved the present application to amend the plaint for inclusion of item no. 5 in plaint-a schedule.11. order vi, rule 17 of the code dealing with amendment of pleadings, 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 a 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 real questions in controversy between the parties:provided that no application for amendment shall be allowed after the trial as commenced unless the court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.'12. order vii, rule 3 of the code specifies where the subject-matter of the suit is immovable property.'where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.'13. it is pertinent to note that order vi, rule 17 of the code specifies, 'the court may at any stage of the proceedings allow either party to alter or amend his pleadings'. by any stretch of imagination it cannot be said that the parties can move an application of this nature praying for amendment of the pleadings of the opposite party. definitely the parties are entitled to amend their own pleadings but not praying for permission to amend the pleadings of the opposite party, since such a course is not permissible under law. when specific provision is there in relation thereto, such a course cannot be adopted and the same cannot be permitted even while exercising the inherent powers under section 151 of the code. though this was not the ground on which the application was dismissed by the learned additional district judge, vizianagaram, i am thoroughly satisfied that this application itself is a misconceived one since, such application cannot be maintained by the defendants. it is needless to say that especially in the light of the remand order of this court the revision petitioners - defendants 1 and 2 are at liberty to amend their own pleadings, if they are so advised, raising these pleas. except making this observation, no other relief can be granted in favour of the revision petitioners in the present crp. in the light of the same, the other aspects need not be considered:14. the civil revision petition is devoid of merits and the same shall stand dismissed. no costs.

Judgment:
ORDER

P.S. Narayana, J.

1. Defendants 1 and 2, O.S. No. 77 of 1984 on the file of Additional District Judge, Vizianagaram moved an application in I.A. No. 2758 of 2002 under Order VI Rule 17 read with Order VII Rule 3 of the Code of Civil Procedure (hereinafter referred to as 'the Code') praying to amend the plaint schedule by adding Item No. 5 to the plaint-A schedule.

2. The first plaintiff, who is the mother-in-law of the first revision petitioner filed the aforesaid suit for partition of the plaint schedule properties and had died during the pendency of the suit and the daughters of the first plaintiff were brought on record as legal representatives, as Plaintiffs 2 to 5 and a preliminary decree was passed for partition of plaint-A schedule immovable properties. Aggrieved by the said preliminary decree the revision petitioners - Defendants 1 and 2 preferred an appeal in A.S. No. 737 of 1987 on the file of this Court. It is also stated that this Court by judgment dated 5th day of April, 2002 had remanded the matter with certain directions and in view of the same, the said property also has to be included ' as Item No. 5 in the plaint-A schedule. Hence, the defendants filed the aforesaid Interlocutory Application for the relief of amendment of plaint-A schedule.

3. The said application was opposed by the sixth respondent in the said application stating that the suit was filed in the year 1984 and the defendants filed written statements at the earliest point of time and they had not taken the stand that the saw mill properly is also the joint family property. It was further stated that though the defendants were aware that the property is in enjoyment of Mr. P. Sanyasi Rao, they have not raised the said objection at the appropriate time and having kept quiet for 18 years and having allowed the trespassers to be in possession beyond the statutory period, the revision petitioners-defendants 1 and 2 cannot be permitted to pray for the amendment of the plaint.

4. The learned Additional District Judge, Vizianagaram by order dated 6-1-2003, dismissed the said application. Aggrieved by the same, the present Revision Petition is preferred.

5. Sri N.V. Ranganadham, learned Senior Counsel representing the revision petitioners had drawn attention of this Court to the order of remand made in AS No. 737 of 1987 and would contend that in view of the findings recorded by this Court while making the order of remand it would be definitely essential to amend the plaint, by including Item No. 5 also in the plaint-A schedule property. The learned Counsel would also maintain that in the absence of Item No. 5 in the plaint-A schedule the questions involved in the suit cannot be effectively adjudicated. In the interest of all the parties to the present partition action, it would be just to permit the amendment of the plaint by including Item No. 5 in plaint-A schedule. The learned Senior Counsel would also maintain that in view of the peculiarity of an action relating to partition and especially in the light of remand order, Defendants 1 and 2 also can maintain such an application to amend the plaint.

6. Per contra, Sri Upendra representing the respondents would contend that the language of Order VI, Rule 17 of the Code is clear and categorical. Counsel also would maintain that by virtue of the remand order definitely an additional issue can be framed in relation thereto and the same can be decided. The Counsel would contend that at any rate, the defendants cannot pray for such a relief to amend the plaint since the same is impermissible. The learned Counsel also submitted that no doubt this was not the ground on which the application was dismissed by the learned Additional District Judge, but, however, in view of the fact that the application itself is not, maintainable, the order impugned in the CRP does not warrant any interference.

7. Heard both the Counsel and perused the affidavit filed in support of the application praying for the amendment of plaint, the counters-affidavit filed by the sixth respondent and also the impugned order.

8. As already referred to supra, this Court in A.S. No. 737 of 1987 made an order of remand on the 5th day of April, 2002. It is no doubt true that this Court observed that as there is no issue or finding with respect to the above-mentioned two items, there is no option except to remand the matter to the Court below for fresh consideration and disposal.

9. The operative portion of the order of remand reads as hereunder:

'It is also contended on behalf of the appellants that the Court below did not consider regarding the debts as evidenced under Ex.B10 and B11 and supported by the evidence of DWs.4, 5 and 7. That apart, there is also no proper consideration in regard to Item 3 of A schedule, which is given towards pasupukumkuma to the 2nd defendant. Having regard to the same, the appeal is allowed. The matter is remanded to the Court below for fresh disposal on merits in accordance with law. The Court below is directed to frame a specific issue on all the aforesaid three aspects and dispose of the same, after giving notice to both the parties.'

10. Having been inspired by the said order of remand and certain findings recorded by this Court, Defendants 1 and 2 moved the present application to amend the plaint for inclusion of Item No. 5 in plaint-A schedule.

11. Order VI, Rule 17 of the Code dealing with amendment of pleadings, 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 a 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 real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial as commenced unless the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial.'

12. Order VII, Rule 3 of the Code specifies where the subject-matter of the suit is immovable property.

'Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.'

13. It is pertinent to note that Order VI, Rule 17 of the Code specifies, 'the Court may at any stage of the proceedings allow either party to alter or amend his pleadings'. By any stretch of imagination it cannot be said that the parties can move an application of this nature praying for amendment of the pleadings of the opposite party. Definitely the parties are entitled to amend their own pleadings but not praying for permission to amend the pleadings of the opposite party, since such a course is not permissible under law. When specific provision is there in relation thereto, such a course cannot be adopted and the same cannot be permitted even while exercising the inherent powers under Section 151 of the Code. Though this was not the ground on which the application was dismissed by the learned Additional District Judge, Vizianagaram, I am thoroughly satisfied that this application itself is a misconceived one since, such application cannot be maintained by the defendants. It is needless to say that especially in the light of the remand order of this Court the revision petitioners - Defendants 1 and 2 are at liberty to amend their own pleadings, if they are so advised, raising these pleas. Except making this observation, no other relief can be granted in favour of the revision petitioners in the present CRP. In the light of the same, the other aspects need not be considered:

14. The civil revision petition is devoid of merits and the same shall stand dismissed. No costs.