Miscellaneous Appeal No. 2631 of 2003 · High Court · 2011

Judgment

1. The Civil Miscellaneous Appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short, ‘CPC’), is directed against the Judgment and Decree dated 19.12.2002 in Appeal Suit No.45 of 1997 on the file the Senior Civil Judge, Adoni, Kurnool district, whereunder and whereby the Appeal Suit and I.A. No.210 of 2001 filed therein for amendment of plaint, were allowed, setting aside the judgment and decree dated

10.07.2007 in Original Suit No.45 of 1992 on the file of the Junior Civil Judge, Yemmiganur remanding the matter to the trial court for disposal afresh after carrying out the amendment. The Civil Revision Petition is filed aggrieved by the order of the court below in so far as allowing the I.A. No.210 of 2001.

2. Since both the cases are connected to each other, they are being taken up for disposal together. The

petitioners/appellants herein are defendants, and the respondent in both the cases is plaintiff, in the suit. For better appreciation of facts, the parties are hereinafter referred to, as they are arrayed in the trial court.

3. Heard both sides.

4. The brief facts are, the plaintiff filed Original Suit No.45 of 1992 before the trial Court for injunction simplicitor. The defendants filed written statement in the suit denying the title of the plaintiff over the plaint schedule property. Therefore, the plaintiff knew the defence of the defendants before commencement of trial itself, and in all fairness, the plaintiff ought to have filed the application for amendment of the plaint seeking declaration of title immediately after filing of the written statement, or at any rate, when the evidence on behalf of the defendants was adduced. That was not done so.

5. The trial court dismissed the suit on 31.7.1997. Thereafter, the plaintiff filed Appeal Suit No.45 of 1997 in the year 1997. Even at the time of filing of the appeal or immediately after filing of the appeal also, the plaintiff did not care to file a petition for amendment of the plaint. For the first time, in the year 2001 i.e. on 26.11.2001, Interlocutory Application no.210 of 2001 was filed in the appeal for amendment of plaint seeking to add the prayer of declaration of her title over the plaint schedule property. That petition was allowed by the first appellate court along with the appeal, without assigning any reasons.

6. The power under Order VI Rule 17 CPC is a discretionary one. When a party seeks a relief under the discretionary power, he must establish the equity and fairness. If they lack, then such a party is not entitled for an order exercising the discretionary power. No doubt, the prayer for amendment of pleadings should be liberally allowed so that the controversy between the parties can be set at rest once for all. But, at the same time, it is equally important that no amendment will be allowed, if it causes injustice to the opposite party. Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour. When a plaintiff has not filed the petition under Order VI Rule 17 CPC to amend the pleadings immediately after filing of written statement, then, certainly, prejudice would be caused to the other side, in such circumstances, amendment cannot be allowed. In the case on hand, the plaintiff has not evinced any interest in filing such petition for amendment of plaint immediately after the written statement was filed. During evidence also, she had not taken any such steps. Immediately after the judgment was pronounced by the trial court also, the plaintiff had not taken any such steps. Therefore, these circumstances would indicate that the plaintiff was not diligent and careful in prosecuting the case and she has not come to the court with clean hands.

7. Further more, under Article 58 of the Limitation Act, 1963, the limitation period for filing of declaration in respect to obtain any other declaration suits is 3 years from the date when the right to sue accrues. In this case, right to sue accrued to the plaintiff to file the suit for declaration when the defendants filed written statement in the year 1992 stating that they purchased the property from the husband of the plaintiff by registered sale deed dated 30.10.1961. Therefore, within three years from the date of filing of the written statement, the suit has to be filed. For about 9 years i.e. from 1992 to 2001, the plaintiff kept quiet without taking any steps for amendment the pleadings. In the absence of special circumstances, such an amendment should not be allowed by the court. The application for amendment of plaint is not made in good faith. This aspect of the case has been completely overlooked by the first appellate court and simply allowed the amendment petition, remanding the suit to the trial court to adduce necessary evidence in pursuance of the amendment, which is not permissible. Hence, the impugned judgment and decree dated 19.12.2002 are liable to be set aside.

8. In the result, the C.M.A. and C.R.P. are allowed. The judgment and Decree dated 19.12.2002 in Appeal Suit No.45 of 1997, and the order in so far as I.A. No.210 of 2001 in the appeal, on the file of the Senior Civil Judge, Adoni, Kurnool district, are set aside. The matter is remanded to the first appellate court to decide the appeal on merits in accordance with law with reference to the evidence adduced by both the parties. In view of the fact that the appeal is of the year 1997, the court below shall dispose of the same within a period of four months from the date of receipt of a copy of this judgment. No costs. ---------------------

15.2.2011 (K.C.Bhanu, J.) DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 2631 of 2003 & CIVIL REVISION PETITION No. 2939 of 2003

15.2.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 2631 of 2003 & CIVIL REVISION PETITION No. 2939 of 2003

15.2.2011 CIVIL MISCELLANEOUS APPEAL No. 2631 of 2003 & CIVIL REVISION PETITION No. 2939 of 2003 Between: Kamsala Lakshmi Narayanamma & others …Appellants/petitioners And K.S.Radha Bai …Respondent/Respondent