CIVIL REVISION PETITION No.3634 OF 2011 AND

CIVIL REVISION PETITION No.3641 OF 2011

19.12.2011

M.T.V. Murali Krishna and 2 others

M. Rama Raju and 2 others

Counsel for the petitioners: Sri C.A.R. Seshagiri Rao

Counsel for the respondents: Sri P. Chandra Sekhar Reddy

? Cases cited:

1. AIR 1979 SC 551

COMMON ORDER:

These two Civil Revision Petitions are directed against the common order dated 20.7.2011 passed by the Court of III-Addl. District Judge (FTC), R.R. District in I.A.No.233 of 2011 in A.S.No.157 of 2008 and I.A.No.272 of 2011 in A.S.No.156 of 2008.

The revision petitioners are the appellants in both A.S.Nos.156 & 157 of 2008. The said appeals were preferred aggrieved by the common judgement, dated 22.7.2008 in O.S.No.935 of 2000 and O.S.No.137 of 2001 on the file of the Court of Principal Junior Civil Judge, Rangareddy District. The above said suits were filed by the revision petitioners against the respondents herein for perpetual injunction in respect of the plaint schedule property which was described as 355 sq. yards of land consisting a well situated in Sy.No.31 bearing premises No.7-2-93 situated at Bairamalguda Village, Saroornagar Mandal, Rangareddy District. Both the suits were dismissed by the Trial Court by common judgment dated 22.7.2008. Aggrieved by the same, the revision petitioners filed A.S.No.157 and 156 of 2008. While matters were coming up for hearing, the revision petitioners filed I.A.Nos.233 & 272 of 2011 in A.S.No.157 of 2008 and A.S.No.156 of 2008 respectively under Order 6 Rule 17 of C.P.C. for amendment of the plaint. Both the said applications were dismissed by the Appellate Court by common order dated 20.07.2011, which is under challenge in these two Revision Petitions.

As could be seen from the material available on record O.S.No.935 of 2000 and O.S.No.137 of 2001 were filed by the revision petitioners for injunction simplicitor claiming title and possession in respect of the suit schedule property under Exs.A-1 & A-2 registered documents executed by the defendant No.1. As per the said documents, the plaintiffs claimed exclusive easementary rights over the plaint schedule property. According to the plaintiffs, the suit schedule land included a well. It was pleaded that they had closed the well and levelled the land so as to make use of the entire land for their dairy business. Alleging that the defendants who have no right, title or interest over the suit land attempted to interfere with the possession and enjoyment of the plaintiffs, the suits were filed for perpetual injunction.

The suits were contested by the defendants contending that the plots purchased by the plaintiffs under Exs.A-1 & A-2 Sale deeds did not include the well and that the plaintiffs were only granted easementary rights by the vendor to use the said well. It was also contended by the defendants that the said well and the adjacent land were meant for the purpose of community hall belonging to the defendants and that the plaintiffs under the guise of closing the well tried to encroach upon the entire land.

To substantiate the suit claim, the plaintiffs/revision petitioners produced an un-registered sale deed dated 24.10.1981 and the same was marked on their behalf as Ex.A-14 to show that the vendor under Exs.A-1 & A-2 Sale Deeds had conveyed 355 sq. yards of land including the well to the plaintiffs. On the basis of Ex.A-14 it was sought to be contended by the plaintiffs that they acquired exclusive rights over the plaint schedule property. However, having regard to the fact that there was no plea in the plaint with regard to execution of Ex.A-14 - un-registered sale deed, the Trial Court declined to accept the exclusive rights claimed by the plaintiffs on the basis of Ex.A-14.

On appreciation of the evidence, both oral and documentary, adduced by the parties, the Trial Court held that the plaintiffs failed to plead and prove their exclusive easementary rights over the plaint schedule property and therefore they were not entitled for the relief of perpetual injunction. Thus, both the suits were dismissed by the Trial Court.

The plaintiffs filed A.S.Nos.157 & 156 of 2008 and while the appeals were coming up for hearing they filed applications for amendment of plaint under Order 6 Rule 17 of C.P.C. so as to specifically mention about Ex.A-14 - un- registered sale deed in para-1 of the plaint. The Court below dismissed the said applications holding that the proposed amendment which was intended to cure the fatal defect pointed out in the judgment of the Trial Court is not permissible.

I have heard the learned counsel for both the parties. It is contended by the learned Counsel for the revision petitioners that Ex.A-14, on the basis of which the revision petitioners sought amendment of the plaint is already there on record and therefore the Court below ought not to have disallowed the amendment.

In support of the said contention, the learned Counsel relied upon ISHWARDAS v. STATE OF M.P.1 wherein it was held as under: "There is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage, the reason why it was not sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court."

There can be no dispute about the power of the Appellate Court to permit amendment of pleadings so as to enable the party to raise a new plea. However, it is necessary for the appellate Court to take into consideration the reason as to why such an amendment was not sought in the Trial Court. It is also relevant to note that as per Order 6 Rule 17 of C.P.C. as amended by Act 22 of 2002 no application for amendment shall be allowed after 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 the trial.

Thus it is clear that before allowing the amendment of pleading the Court must be satisfied that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

In the case on hand, in the affidavits filed in support of the applications, under Order 6 Rule 17 of C.P.C. it was pleaded that as the defendant No.1 who executed Ex.A-14 had admitted the claim of the plaintiffs over the property, the plaintiffs were advised that the admitted fact need not be proved. However in view of the observations made by the Trial Court while dismissing the suits, they were advised later to amend the plaint by making a specific plea with regard to Ex.A-14.

As noticed above, one of the grounds upon which the suits were dismissed was absence of plea with regard to Ex.A-14. Therefore if the plaintiffs/revision petitioners are allowed to amend the plaint as sought by them at the appellate stage, it would undoubtedly cause prejudice to the defendants which cannot be compensated by costs. Hence the defect of absence of plea, in the facts and circumstances of the present case, cannot be cured by way of amendment to the pleadings at the appellate stage. Moreover, absolutely no case could be made out by the plaintiffs to show that their failure to take steps for amendment of pleadings before the commencement of the trial was in spite of due diligence. Therefore, I do not find any justifiable reason to hold that the Court below had committed any error in disallowing the proposed amendment.

Accordingly, both the Civil Revision Petitions are dismissed. No costs. ______________