HON'BLE SRI JUSTICE B.N. RAO NALLA
C.R.P. No. 3628 of 2010
04.10.2012
Uppalapati Ramanamma w/o.Seshaiah
Ravella Pitchaiah and others
Counsel for the petitioner: Sri S.Venkateswarlu
Counsel for Respondents 1 to 3 and 6: Sri M.Sudhir Kumar
<GIST :
>HEAD NOTE :
? Cases referred :
-Nil-
ORDER:
This revision is filed against the order dated 02.06.2010 in
I.A. No.631 of 2010 in O.S. No.349 of 2005 on the file of the Principal Junior
Civil Judge, Ongole.
2. The revision petitioner is defendant No.1 and the respondents are the
plaintiffs and defendant Nos. 2 to 4. The suit is filed for partition of the
suit schedule property. The plaintiffs filed the present I.A. No.631 of 2010
under Order 6 Rule 17 of Code of Civil Procedure (for short 'CPC') for amendment
of the plaint and the plaint schedule.
3. For the sake of convenience, the parties hereinafter referred to as they
arrayed in the I.A. To give more clarity, the revision petitioner, who is
respondent No.1 (defendant No.1) in the I.A, is hereinafter referred to as the
respondent.
4. The case of the petitioners is that in the plaint the extent of the
plaint schedule property was wrongly shown as Ac.3-301/2 cents bearing Survey
Nos.164, 168,169/1,169/3 and 170/1. In fact, the extent of
Ac.1-181/2 cents from out of Ac.3-301/2 cents was acquired by the Government
long back for providing house sites to backward people and it was assigned to
them and they also raised residential houses in the said extent. An extent of
Ac.0.39 cents was sold under a registered sale deed by petitioner No.1, father
of petitioner Nos.2 to 5 and husband of petitioner No.6 to the father of
respondent. Now an extent of
Ac.1-73 cents only remains which is the plaint schedule property. Because of
oversight, it was mentioned as Ac.3-301/2 cents in the plaint as well as in the
plaint schedule instead of Ac.1-73 cents. Therefore, they sought permission to
strike out the extent of Ac.3-301/2 cents by substituting Ac.1-73 cents in the
plaint as well as in the plaint schedule.
5. The case of the respondent is that in her written statement at Paragraph
No.6 she pleaded that 'the suit schedule land an extent of Ac.1.73 cents is not
in existence on land and there is no such joint extent of land in the said
boundaries still. Moreover, the petitioners gave different extents and survey
numbers at different stages. They are not assertive regarding the material
aspects. The petitioners did not come to the court with clean hands.' The
petitioners previously filed
I.A.No.734 of 2006 to amend the plaint on similar grounds and the same was
dismissed and the matter was carried to this Court in revision. As per the
orders in the revision, the amendment was carried out in the plaint as well as
in the plaint schedule regarding the extent, survey numbers and boundaries.
While so, the petitioners filed the present I.A. to delete the amended portions
in the plaint and the plaint schedule. Filing amendment petitions one after
another is unsustainable in law. The petitioners filed the present I.A. to fill
up the lacunae which were pointed out by the respondent in her written
statement, and also to take away her defence. If the I.A. is allowed, much
prejudice would be caused to the respondent and it also changes the very
structure of the suit.
6. Taking into consideration the material available on record and the
submissions made on either side, the trial Court allowed the I.A. subject to
payment of costs of Rs.1,000/- to the respondents, holding that if the amendment
is not permitted, it would cause prejudice to the petitioners as they would not
able to present the real facts before the Court to decide the main controversy
in the suit.
7. Heard both sides and perused the material on record.
8. The learned counsel for the respondent (revision petitioner) contended
that the trial Court has failed to notice that earlier the petitioners had filed
I.A.No.734 of 2006 for amendment and the same was dismissed and they carried the
matter to this Court by filing revision and as per the orders in the revision,
the amendment was carried out, and after a lapse of four years, the petitioners
again have come-up with the present I.A. to delete the amended portions in the
plaint and the plaint schedule, without even seeking leave of the trial Court.
The learned counsel also contended that the trial Court failed to notice that
the petitioners have given different extents and survey numbers at different
stages and they are not assertive regarding the material aspects. The learned
counsel alleged that the petitioners to cover-up their laches, filed the present
I.A. for amendment.
9. The learned counsel for the petitioners (respondents 1 to 3 and 6 herein -
plaintiffs) submitted that the impugned order passed by the trial Court needs no
interference at the hands of this Court as no prejudice would be caused to the
respondent if the amendment is carried out, and that she can get an opportunity
to rebut the same. As such, there are no merits in the C.R.P. and the same is
liable to be dismissed.
10. On a perusal of the record, it appears that the trial is not yet
commenced. It is on the record that the petitioners had amended the plaint and
the plaint schedule as per the orders of this Court in
C.R.P. No.3286 of 2007 dated 24.10.2008. The present I.A. is filed for
amendment of the plaint and the plaint schedule stating that inadvertently they
did not mention the exact extent of the plaint schedule property in the plaint
as well as in the plaint schedule. The contention of the respondent (revision
petitioner) is that earlier I.A.No.734 of 2006 was filed by the petitioners to
amend the plaint on similar grounds and the same was dismissed and the matter
was carried to this Court in the revision and as per the orders in the revision,
the plaint as well as the plaint schedule property was amended, and as such, the
present I.A. for amendment is unsustainable in law. Now, it is to be seen
whether the present amendment can be allowed, and if it is allowed, would it
alter the nature of the suit or change the cause of action? The case of the
petitioners is that they did not inform their counsel before the trial Court
about the extent of land acquired by the Government and the extent of land sold
by them out of the extent mentioned in the plaint as well as in the plaint
schedule. Having regard to the facts and circumstances of the case and also
having regard to the submissions made on either side, this Court is of the
considered opinion that if the present amendment is allowed, no prejudice would
be caused to the respondent and that the nature of the suit would not alter and
the cause of action would not change. Further, denial of such amendment will go
to the very root of the matter, and as such, it is necessary to permit the
petitioners to amend the plaint and the plaint schedule so as to effectively
adjudicate the controversies involved in the suit once for all.
11. In view of the above discussion, this Court is of the view that the
impugned order does not suffer from any illegality or irregularity warranting
interference from this Court, and as such, the Civil Revision Petition is liable
to be dismissed.
12. In the result, the Civil Revision Petition is dismissed. No order as to
costs.
_________________
B.N. RAO NALLA, J
Date:04.10.2012
