L Venkata Ramana Kishore and othersr, Basavaraj v. Indira and Ors

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the order daled 03.06.2021 in l.A. No 1365 of 2019 in O.S. No. 61 of 2012 passed to the Learned XXVII Additional Chief Judge, City Civil Court. at Secunderabad. Counsel for the Petitioner: SRI S. NAGESH REDDY Counsel for the Respondent No.'l: SRI KONDAPARTHY KIRAN KUMAR Counsel for the Respondent No.2: SRI D. MADHAVA RAO CIVIL REVISION PETIIION NO: 1054 OF 2021 Petition under Article 227 of the Constitution of lndia aggrieved by the order dated 03 06 2021 in l A No 1364 of 2019 in O.S. No. 60 of 2012 on the file of the court of ther XXVII Additional Chief Judge, City Civil Court, At Secunderabad. Between: lndus Palm Hotels and Resorts Ltd., Represented by its CFO Gopal Rao, Registered office at and B-2-2681Ct7l10/K Road No. 3. Banjara Hills, Hyderabad ..PETITIONERYRESPONDENT NO.2/DEFENDANT NO.2 AND

1. Mr. Abdul Munshad Baig, S/o.Late Abdul Saltar Baig, Aged about 66 Years Occ Business, R/o H.No. 1-7-68/8. S.D. Road, Secunderabad 500003 ...RESPONDENT No.1 /PETITIONER/PLAINTIFF

2. Mr. Abdul Zia Baig@Mohd. Zia Baig, S/o. Late Abdul Sattar Baig, Aged about 71 years Occ llusiness, R/o.H.No. B-z-L. Plot No. 2614. MLA Colony, Road No '12, Banjara Hills. Hyderabad 500034. FEIiPoNDENT No.2/RESPONDENT NO.1/DEFENDANT NO.1 lA NO: 1 OF 2021 in C.R.P.No.1 O54 of 2021 Petation under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to suspend the order dated 03/06/2021 in l.A. No 1364 of 2019 in o.s. No. 60 of 201) passed by the Learned XXVII Additional Chief Judge. City Civil Court, at Secunderabad. Counsel for the Petitioner: SRI S. NAGESH REDDY Counsel for the Respondent No.1 : SRI KONDAPARTHY KIRAN KUMAR The Court made the following: COMMON ORDER THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION Nos.1053 & 1OS4 of :2O2L COMMON ORDER: Since the issue involved in both the civil revision petitions is one and the same, they are being heard together and are being decided by way of this common order.

2. Challenging the common order dated 03.06.2021 passed in I.A.Nos.1364 and 1365 of 2Ol9 it O.S.Nos.60 and 6l of 2Ol2 by the learned XXVII Additional Chief Judge, City Civil Court, Sccunderabad, the present Civil Revision petitions are filed.

3. The brief lacts of the cases are that the plaintiff filed two suits vide O.S.Nos.6O and 6l of 2Ol2 seeking recovery of possession of property from the defendants, who included his brothers and lrrdus Palm Hotels and Resorts Ltd. He contended that his brothers had fraudulently obtained gift deeds o[ his property under duress and coercion but failed to make the agrecd payments trnder an MOU. The plaintiff later sought amendrnents to the plairlt to explicitly declare the gift 2 sKs,J C.R-P.I{os.lO53, lO54 of 2O21 deeds as null and void and for their cancellation, claiming the omission was due to linancial constraints and drafting errors. However, the defendalts opposed the amendments, stating that they were made with the intent to delay proceedings, that the claims were time-barred, and that the plaintiff had failed to exercise due diligence in raising these claims earlier. The defendants further submitted that allowing the amendments would change the nature of the suit and cause injustice to the defendants.

4. The trial Court vide order dated 03.06.2021 allowed the petitions observing that the proposed changes did not alter the nature of the suit but only clarified edsting claims. The trial Court ruled that amendments should be permitted in the interest of justice and to avoid multiplicity of litigation, subject to the plaintiff paying the required court fees.

5. Heard Sri S. Nagesh Reddy, learned counsel appearing on behalf of the petitioner as well as Sri K. Kiran Kumar, learned counsel appearing on behalf of the respondents. i..--.--. 3 sKsr, C.R-P.[os. 1053, lOS4 of 2O2t

6. karned counsel lor the petitioner submitted that the trial Court erred in allowing the amendment application liled by Respondent No. 1, disregarding the proviso to Order VI Rule L7 Crc, which mandates that amendments after the commencement of trial can only be allowed if the party could not have raised the matter earlier despite due diligence. He further submitted that the amendment, sought at the fag end of the trial, introduces a time-barred cause of action, retrospectivellz altering the nature of the suit and prejudicing the Petitioner and that the relief for declaration and cancellation of the gift deed should have been sought within three years from its execurion as per Article 5g of the Limitation Act, 1963, and allowing such an amendment after 12 years defeats the principles of finality and legal certainty.

7. learnecl counsel lor the petitioner contended that the trial Court misinterpreted the judgments cited by respondent No. l, which do not apply to cases where an amendment introduces a new cause o[ action and that the order also violates Order It Rule 2 of CpC and Section 34 of the Specific Relief Act, 1963, as respondent No. I knowingly omitted the relief of declaration and is now attempting to introduce it to 4 SKS,J C.R-P-fos- 1053, 1O54 of 2O21 overcome the bar of limitation. He further contended that the amendment gravely prejudices the Petitioner, as the trial has already been conducted based on the original pleadings, and allowing it would require reopening the entire case, forcing fresh pleadings, additional cross-examination' and new arguments, causing serious injustice. Learned counsel for the petitioner contended tJlat the

8. reasons cited for the amendment, frnancial hardship and inadvertence in drafting, are vague, unsubstantiated, and frivolous, exposing it as a mere delaying tactic and abuse of the judiciat process. Therefore, the amendment should have been rejected outright, and the decision of the trial must be set aside to prevent undue advantage to respondent No'1 and uphold the principles of natural justice. Hence, he prayed the Court to set aside the common order of tlre trial Court by allowing these civil revision petitions. g. [n support of this submissions, learned counsel for the petitioner relied upon the judgment of the Honble Supreme Court in Peethani Suryanarayana and another v' Repaka _,-1. 5 SI(s,J C.R-P.[os.1053, lO54 of 2O2L Venkata Ramana Kishore and othersr, Basavaraj v. Indira and Ors2, Ideal College of Arts and Science v. Medical Education Society 3 , Ankam Govindamma v. Syed Shafeeullah+, Revajeetu Builders and Narayanaswamy and Sons and Orss, Vidyabai and Ors v. Padmalatha and Ors6, L J Ieach and Co Ltd v. Messers Jairdine Skinner and Co.7, Ma Shew Mya v. Maung Mo Hnaung8, South Konkan Distilleries and Ors v. Prabhakar Gajanan Naik and Orse, Life Insurao.ce Corporation of India v. Sanjeev Builders Private Limited and Anotherro.

10. On the other hand, learned counsel for the respondents submitted that there is no illegality in the order of the trial Court, stating that the amount prepared by respondent No.l is a consequential relief. Il there is sulf-rcient material in the plaint to show that the document was obtained under coercion, the averments themselve s indicate that the o ' (zoog) rt scc soa ' (zozc) e scc zos ' zozz 4 ALD i28 2019 1 ALD 28a ' zoog to scc 8a t 2oo9 2 scc qog ' ltn tgsz sc asz 'atR 1922 pc zag 'atR zoog sc trzz 'o 2022 16 scc t 5 SKS,J C.R-P.ltos.lO53, lO54 of 2O2l document is null and void, except for the explicit prayer declaring it as such. The entire plaint must be read holisticalty to allow the amendment petitions. The averments in the plaint already establish that the gift deed is a void document; therefore, merely adding a prayer to declare it as null and void does not prejudice the petitioner in any way' Furthermore, limitation is not a valid ground to restrict the amendment. In view of the judgment of the Honble Supreme Court in Sanjeev Builders (supra 10), the trial Court has the discretion to frame an issue regarding limitation if necessar5r, but the amendment itself cannot be rejected on that basis' Therefore, he prayed for the dismissal of the civil revision petitions.

11. In light of the submissions made by the both learned counsel and upon a thorough examination of the material available on record, it is evident that both civil revision petitions have been filed against the common order of the trial Court, wherein the trial Court allowed the amendment petitions on the prcmisc that the relief sought by respondent No. l/plaintiff is merely consequential and was not initially included as a prayer at the time of filing the suit. The trial 1 SKS,J C.R-P.l{os. 1O53, LO54 of 2o2l Court opined tJlat since the entire plaint revolves around the validity of thr: gift deed, a-llowing the amendment would not introduce a new cause of action but would rather clarify an existing issue

12. The first and primary contention raised by the learned counsel for tJ.e petitioner is that the amendment is barred by limitation. It is well established that the limitation period for seeking a declaration is three years from the date when the right to sue first accrues, as per Article 58 of the Limitation Act, 1963. In the present case, however, the amendment seeking declaralion of the gift deed as null and void was filed after 13 years, which, on its face, appears to be timc-barred. The petitioner argues that such a belated attempt to amend the pleadings is impermissible in law and defeats the principle of hnalit5r in litigation.

13. However, a closer examination of the plaint reveals that the entire suit is based on the contention that the gift deed was obtained fraudulently and under coercion, and the plaintiff had already sought recovery o[ possession, itlternative relief, and recovery of money. These averments suggest that 8 SKS,J C.R.P.r{os.lO53, 1054 of 2O21 the claim of the plaintiff was, from the outset, based on the alleged invalidity of the document, and the failure to include a specifrc prayer for declaring it null and void was a mere omission rather than a fundamental defect. The Hon'ble Supreme Court in Sanjeev Builders (supra) has held that delay alone cannot be a ground to reject an amendment if the claim itself is an integral part of the existing pleadings. Where the issue of delay is arguable, the amendment may be p€rmitted, and the question ol limitation can be framed as a separate issue for adjudication. Accordingly, the trial Court was justified in concluding that limitation alone does not preclude the amendment, and the civil revision petitions cannot be dismissed solely on the ground of delay.

14. The second contention raised by the learned counsel for the petitioner is that respondent No. I failed to exercise due diligence in hling the amendment petitions. It is a settled principle that when an amendment is sought after the commencement of trial, the applicant must prove that despite due diligence, the issue could not have been raised earlier. The petitioner argues that the plaintiff had ample opportunity to seek the amendment at the initial stage of litigation, yet he r- 9 sKsrJ C.R.P.t{os.1053, 1OS4 ot 2O2l chose not to do so and instead waited until the trial was almost concluded, after evidence had been led and arguments had been aclvanced. Such conduct, the petitioner contends, demonstrates a lack of due diligence and suggests that the amendment is a mere afterthought, intended to delay the proceedings and frustrate the defense of the petitioner.

15. Respondent No.1 has justified the delay by stating rhat at the time of drafting the plaint, he was in linancial distress, and multiple changes in legal counsel resulted in certain omissions. However, as rightly pointed out by the petitioner, financial constraints and changes in legal representation cannot jusl,ify the failure to exercise due diligence. The responsibility of ensuring that all necessary reliels are sought in a suit lies with the party and its legal counsel, and a party cannot be yrermitted to rectiry fundamental omissions at the last stage of proceedings merely by citing inadverten<:e or confusion.

16. However, it is also important to consider the substantive nature of t he amendment. The entire suit is based on the premise that the gift deed is void, and the reliel sought \ 10 SKS'J C.R-P.Nos.1O53, lo34 of 2O2r through the amendment is not an entirely new cause of action but merely an additional prayer reinforcing an existing claim' The Hon'ble Supreme Court in Pankaja & Anr v. Yellapparl has held that amendments should not be rejected solely on the ground of limitation if the relief sought is necessary for the complete adjudication of the dispute

17. learned counsel for the petitioner further contends that allowing the amendment would fundamentally alter the nature of ttre suit, as the original relief sought was recovery of possession and alternative monetary relief, whereas the amendment introduces a declaratory relief regarding the validity of the gift deed. The petitioner argues that such a substantive change in the pleadings, at the final stage of trial, would require reopening the case, leading to prejudice against the petitioner.

18. However, the trial Court corrcctly observed that the cancellation of the gift deed is only a consequential reiief' When deciding the suit, the Court rvill inevitably have to determine whether the gift deed is valid or void, and if it is " (zooa) e scc +ts F -7 71 SKS,J C.R-P.l{os.1053, 1()54 of 2021 found to be void, the logical outcome would be the rejection of the document, which is equivalent to cancellation. Therefore, merely adding a specific prayer for cancellation does not materially alter the nature of the suit but rather clarifies arld strengthens t he relief already being sought.

19. Further, the Hon'ble Supreme Court has repeatedly emphasized that procedural laws should not be applied in a rigid manner if doing so would defeat substantive justice. In Varun Pahwa v. Renu Chaudharyrz, tJle Court held that amendments should be permitted if they are necessary to resolve the real issues in dispute, even if they are sought at a later stage ol-litigation. Similarly, in Abdul Rehman & Anr v. Mohd Ruldu & OrsI3, the Supreme Court observed that ii the factual basis for an amendment is already present in the original plcadings, then allowing the amendment does not amount to introducing a new case.

20. Upon a comprehensive evaluation of the pteadings, arguments, and legal precedents, it is clear that although the petitioner's (toncerns regarding delay and due diligence are " atR 20t9 supRrvt cou Rr 1186 " 12orz1 11 scc l,rr T2 sKs,J c.R-P.Nos.IO53, 1054 of 2o21 valid in certain restrrcts, they do not outweigh the need for a lair adjudication of the real issues in dispute. The reasoning of the trial Court t1:at the amendme nt merely clarihes a consequential relief and does not fundamentally alter the nature of t1le suit is well-founded. Furthermore, in light of the ruling of the Hon'ble Supreme Court in Sanjeev Builders (supra), the question of limitation should be treated as a separate issue to be adjudicated upon during trial rather than as a ground for outright rejection of the amendment.

21. Thus, considering that the trial Court exercised its discretion within the legal framework, and there is no manifest illegality or material irregularity in its ordcr, there are no valid grounds to interfere with the impugned order. Accordingly, the civil revision petitions lack merit and are liable to be dismissed.

22. In view thereof, these civil revision petitions are dismissed conhrming the common order dated 03.06.202 I passed in I.A.Nos.1364 and 1365 of 2019 in O.S.Nos.60 and 6l of 2Ol2 by the learned XXVII Additional Chief Judge, City 13 SKS.J C.RP, os.lOS3, tOS4 ot 2O;r Civil Court, Secunderabad. There shall be no order as to costs. Miscellaneous petitions, if any pending, shall also stand closed. //TRUE COPY// SD/. T. JAYASREE PUTY REGISTRAR SECTION OFFICER / To,

1. The XXVII Additionat Chief Judge, City Civil Court, Secunderabad 2. One CC to Sri S Nagesh Reddy, Advocate [OpUC] 3 lne CC to Sri Kondaparthy Kiran Kumar, Advocate tOpUCl 4. One CC to Sri D Madhava Rao, Advocate tOpUCI 5. Two CD Copies Plp/gh D HIGH COURT DATED:07l03ti2O2S COMMON ORDER CRP.Nos.1053 and 1054 ot 2021 t o,J a \ .\ 2 3 lul 2n25 P4 rcHEo ,r DISMISSING BOTH THE CIVIL REVISION PETITIONS. 06