THE HONOURABLE SRI JUSTICE C.V.NAGARJUNA REDDY
CIVIL REVISION PETITION No.1723 of 2012
01-11-2012
Bhanoth Mangamma
Chitla Ram Reddy
Counsel for Petitioner: Mr.Ashok Reddy
Counsel for Respondent: Mr. Dantu Srinivas
<GIST:
>HEAD NOTE:
?CITATIONS:
2002 (6) ALT 219
ORDER:
This Civil Revision Petition is filed against order dated 13.03.2012 in
I.A.No.538 of 2011 in O.S.No.112 of 2009 on the file of the learned Senior Civil
Judge, Jangaon.
I have heard Mr. Ashok Reddy, learned counsel for the petitioner, and Mr.
Dantu Srinivas, learned counsel for the respondent.
The respondent filed the above-mentioned
suit for permanent injunction
restraining the petitioner herein from interfering with the suit schedule
property.
He has later on filed I.A.No.538 of 2011 under Order VI Rule 17 CPC
for amendment of the plaint in order to claim the relief of declaration of
title, recovery of possession and mandatory injunction to demolish the
structures.
It is the pleaded case of the respondent that
initially an order of
status quo was granted on 17.11.2009, which was extended upto 14.12.2009, and
that later on, due to non-functioning of the Court on account of an agitation,
the status quo order was not extended and
that taking undue advantage of the
absence of the interim order, the petitioner has illegally encroached upon the
suit schedule property and raised the structures.
The petitioner resisted the said application by pleading that by
permitting the amendment of the plaint, the whole nature and character of the
suit will undergo a radical change.
She has further pleaded that the averments
relating to her encroaching upon the property and raising constructions after
the expiry of the order of status quo are totally false and
that on such
averments, the amendment cannot be allowed. The lower Court, on consideration of
the rival pleas, allowed the application for amendment, by its order dated
13.03.2012. Feeling aggrieved by the said order, the petitioner filed this
Revision Petition.
At the hearing, the learned counsel for the petitioner placed reliance on
the judgment in Sayanna and another v. Thimmanna and another1 in support of his
contention and
submitted that as held by this Court in the said judgment, by
allowing the amendment of the respondent, the lower Court has allowed the whole
character of the suit altered.
Learned counsel for the respondent submitted that the facts in Sayanna
(supra) are completely different and that the lower Court has considered the
said judgment and distinguished the same on the facts of the present case.
I have carefully considered the submissions of the learned counsel for the
parties.
Taking the second submission of the learned counsel of the petitioner
first,
whether the averments on the basis of which the application for amendment
was filed are correct or not are not germane for consideration at the time of
considering the application for amendment.
Such averments can be put to test
only in the trial.
The only question that is relevant at the time of
considering the application for amendment is
whether such amendment is
permissible in law.
The law is well settled that the plaintiff in a suit for
permanent injunction is entitled to seek amendment by claiming relief of
declaration of title and recovery of possession and that such amendment does not
alter the nature of the suit. (See Sampath Kumar, Appellant v. Ayyakannu and
another2)
A perusal of the order of the lower Court would show that
it has
considered the judgment in Sayanna (supra) and distinguished the same on the
facts of the present case.
In that case, this Court held that by allowing the
application for amendment, by which the plaintiff sought to plead adverse
possession, it would prejudice the interests of the defendant as he may be
denied the rights flowing under the Occupancy Rights Certificate under Section
38-E of the A.P. (Telangana Area) Tenancy & Agricultural Lands Act, 1950.
This
Court also observed that as the amendment was sought five years after filing of
the suit, the relief claimed by way of amendment was barred by limitation.
Therefore, in my opinion, the lower Court has rightly distinguished the judgment
in Sayanna (supra) and allowed the application of the respondent.
Hence, I do
not find any error jurisdictional or otherwise in the order of the lower Court
allowing the application for amendment filed by the respondent.
For the above-mentioned reasons, this Civil Revision Petition is
dismissed.
As a sequel, CRPMP.No.2305 of 2012 filed for interim relief is dismissed
as infructuous.
_______________________
C.V.NAGARJUNA REDDY,J
01.11.2012
