Civil Revision Petition No. 205 of 2008 · High Court

Despite service of notice, neither is the respondent present nor has any counsel entered appearance on her behalf. The order under challenge in this revision proceedings is the order passed by the Senior Civil Judge, Bobbili, in I.A.No. 826 of 2007 in O.S.No. 11 of 2006, dated 22.12.2007.

The petitioners herein are the plaintiffs in O.S.No. 11 of

2006. They filed a petition in I.A.No. 826 of 2007, under Order VI Rule 17 CPC, seeking permission to amend plaint A, B and C schedule properties, and for consequential amendments thereof. The Court below rejected the said application on two grounds. Firstly the due diligence test, as stipulated, under Order VI Rule 17 CPC, was not satisfied and, secondly, since the application was filed after the evidence was closed, prejudice would be caused to the other party, and no party can be allowed to take advantage by collecting evidence detrimental to the interest of the other party subsequent to the closure of evidence. In the affidavit filed in support of the I.A., the first petitioner stated that a suit was filed, on behalf of the second petitioner (minor) for partitioning the plaint schedule properties and to allot their shares; prior to filing of the suit, the first petitioner had approached the Mandal Tahasildar, Ramabhadrapuram, both orally and in writing, requesting him to furnish details of patta numbers, survey numbers and extents in respect of the plaint schedule properties in the name of her husband; the office of the Mandal Tahasildar, Ramabhadrapuram showed a deaf ear; she, being helpless, filed the present Suit by mentioning the local names and approximate extents of the plaint schedule property; even after filing of the Suit, she tried her best to get information by sending an application by registered post acknowledgment due, to which the Mandal Tahasildar, Ramabhadrapuram showed a deaf ear; during the course of trial, she got issued a legal notice to the Mandal Tahasildar, Ramabhadrapuram, furnish aforementioned particulars, (which were subsequently marked through PW.1 as Exs.A.1 to A.6), for which also the Mandal Tahasildar showed a deaf ear; she summoned the Mandal Tahasildar for giving evidence and causing production of the documents through an application under Order 16 Rules 6 and 17 read with 151 CPC; on the order of the Court below dated

06.08.2007, the Mandal Tahasildar was examined as PW.2 in the Suit; and the Mandal Tahasildar produced the relevant revenue records, furnished the real patta numbers, survey numbers and extents relating to Ramabhadrapuram and Bhusayavalasa Villages in the name of her husband, which were marked as Exs.X.1 and X.2. The first petitioner stated that, inspite of due diligence, she could not get the patta numbers, survey numbers and extents of the plaint schedule property; and her failure to do so was due to dereliction of duties by the officer concerned and not because of negligence on her part. Amendment of pleadings should ordinarily be permitted since it is only on the basis of pleadings can evidence be adduced. It is only in cases where trial has commenced that proviso to Order 6 Rule 17 requires due diligence to be shown before an application for amendment of pleadings can be ordered. Commencement of trial is not a bar for entertaining an application seeking amendment of the plaint, and it is only in cases where the plaintiff is not able to show that he/she exercised due diligence despite which the amendment could not be sought for earlier, would the Court be justified in refusing to permit amendment of pleadings.

The contents of the affidavit filed in support of the I.A., as extracted hereinabove above, reflect due diligence on the part of the first petitioner. It is evident therefrom that, despite her best efforts, she could not secure the relevant patta numbers, survey numbers extents the Mandal Tahasildar, Ramabhadrapuram, and it is only after the Court below had summoned the Mandal Tahasildar, who was examined as PW.2 and had marked Exs.X.1 and X.2, did she come to know the correct patta numbers, survey numbers and extents and, soon thereafter, the present application was filed under Order VI Rule 17 CPC. The finding of the Court below that the first petitioner could not be permitted to collect evidence is wholly irrelevant since what is sought by the petitioner is mere amendment of the plaint. The order of the Court below, in I.A.No. 826 of 2007 in O.S.No. 11 of 2006, dated 22.12.2007, passed by the Senior Civil Judge, Bobbili, is set aside and, accordingly, I.A.No. 826 of 2007 stands allowed. The Court below shall permit the first petitioner to amend the plaint and, thereafter, proceed further in accordance with law. The Civil Revision Petition is, accordingly, allowed. RAMESH RANGANATHAN,J Dt:08-07-2010