Jampala Vengamma & Ors. v. Polineni Chandramma & Ors.

THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No.5421 OF 2009 ORDER: The Revision petitioners are the plaintiffs in O.S.No.33 of 2007 on the file of the Court of the Additional District Judge, Family Court, Anantapur. This Civil Revision Petition is directed against the order dated 2.11.2009 in I.A.No.291 of 2009 wherein the Court below has permitted the defendants 12 to 20 to amend the written statement. The suit is filed for partition of the suit schedule properties and the same has been contested by the defendants. After settling the issues, the trial has commenced and an affidavit has been filed by P.W.1 in lieu of his chief-examination. At that stage, the respondents 1 to 10 herein, who are the defendants 12 to 20, filed I.A.No.291 of 2009 under Order 6 Rule 17 of C.P.C. seeking permission to amend the written statement by adding the additional grounds namely that the suit was bad for non-joinder of necessary parties and that the suit itself was not maintainable since the suit schedule property was in possession of all the co-owners.

Though the said application was opposed by the plaintiffs, the Court below by order dated 2.11.2009 allowed I.A.No.291 of 2009 on payment of costs of Rs.400/-. Aggrieved by the same, the present Civil Revision Petition is filed by the plaintiffs. I have heard learned counsel the Revision petitioners/plaintiffs and perused the material on record. The learned counsel for the petitioners vehemently contended that in view of the bar under the proviso to Rule 17 of Order 6 of C.P.C., the Court below committed a grave error in allowing the amendment after the commencement of the trial. It is also contended that since the defendants 12 to 20 failed to offer any proper explanation except stating that by mistake and oversight they did not raise the said plea in the written statement initially filed, the Court below ought to have dismissed the application in limini. The law is well-settled that the Court should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side.

The discretion conferred on the Courts under Order 6 Rule 17 of C.P.C. is very wide and it is always open to the Courts to allow the amendment of pleadings if the Court is of the opinion that such amendment is necessary for the purpose of determining the real questions in controversy between the parties. It is true that by virtue of Amendment Act No.22 of 2002 a proviso has been inserted to Order 6 Rule 17 of C.P.C. which restricts the power of the Court to allow the amendment of pleadings after the commencement of trial 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. However, it is clear from the language of the proviso to Order 6 Rule 17 of C.P.C. that the restriction brought under the amendment is not absolute and even after commencement of trial the amendment of pleadings is permissible if the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial.

In the instant case, it was pleaded by the defendants that they could not raise the plea sought to be added by way of amendment by mistake and oversight. Admittedly both the additional pleas sought to be raised by the defendants 12 to 20 by way of amendment to the written statement are only legal pleas which do not in any way affect the nature of the suit. In the circumstances, the Court below, having been satisfied with the explanation offered by the defendants, thought it fit to allow the amendment observing that the proposed amendment would enable the Court to have proper adjudication of the suit by determining the real question in controversy between the parties. The said discretion exercised by the Court below, on proper application of the mind to the facts and circumstances of the case, cannot be held to be arbitrary or perverse. However, the learned counsel for the petitioner while placing reliance upon VIDYABAI v.