O.S No. 51 of 2009 · Andhra Pradesh High Court

These Civil Revision Petitions, under Article 227 of the Constitution of India, are preferred against the common order of the IV Additional District Judge, Anantapur, in I.A.Nos.620 and 663 of 2011 in O.S.No.51 of 2009 dated 10.08.2011, whereby the

applications filed by the respondents-plaintiffs, under Order VI Rule 17 of the Code of Civil Procedure (CPC), praying to add the petition schedule property viz. D.No.6-316-1 of Kakkalapalli Village as joint family property, and as ‘C’ schedule property in the plaint schedule respectively, were allowed. The Court below, while permitting the amendment and overruling the objections raised by the petitioners-defendants, observed that grant of permission to amend the plaint would not tantamount to granting of relief by itself; the respondents-plaintiffs were required to establish through cogent evidence that the property in question was also purchased with the joint family funds; for considering every aspect of the case, an amendment sought could be permitted if it was found to be justifiable; an amendment sought could not be considered to be a new plea but only a plea to add the property purchased by the petitioners- defendants as the property of the joint family; and as such the petitioners were entitled to seek amendment.

Sri N.V.Anantha Krishna, Learned Counsel petitioners, would vehemently contend that, at the stage of conclusion of the evidence adduced on behalf of the petitioners- defendants, these applications were filed seeking amendment; such a belated request for amendment by the respondents- plaintiffs ought not to have been considered by the Court below; the property was the self-acquired property of the petitioners- defendants and not the joint family property; and, as such, inclusion of the property in the plaint schedule would cause needless harassment the petitioners-defendants besides subjecting them to the rigor of Section 52 of the Transfer of Property Act, 1882 (for short ‘the Act’) unnecessarily. With regards the contention of a belated request being made for amendment, it needs to be noted that the suit is of the year 2009, and the I.As., seeking amendment of the plaint schedule, were filed less than two years after the suit was filed.

No prejudice can be said to have been caused to the petitioners-defendants since the Court below has made it abundantly clear that, what has been sought was merely an amendment of the plaint, and the burden was on the respondents-plaintiffs to establish that the property in question was bought out of the funds of the joint family by leading cogent and acceptable evidence. A plea, by itself, is not proof and, since the burden of proving their claim that the property belongs to the joint family lies heavily on the respondents- plaintiffs, the petitioners-defendants cannot be said to have suffered prejudice thereby. With regards the contention of lis pen dens, if the property had been included at the time of filing of the suit itself, instead of by way of an amendment, Section 52 of the Act would nonetheless have attracted. Merely because an amendment was sought, application of Section 52 of the Act cannot by itself be a ground for refusing to permit an amendment.

The Court below had exercised its discretion in allowing the applications filed for amendment of the plaint schedule. The jurisdiction which this Court exercises, under Article 227 of the Constitution of India, is supervisory and not appellate. It is not for this Court to interfere with discretionary orders of the Court below except where a patent illegality is to be found in the order, or irretrievable prejudice is caused to the petitioners thereby. Neither of these eventualities arise in the cases on hand. I consider it wholly inappropriate, therefore, interfere and exercise jurisdiction under Article 227 of the Constitution of India. The Civil Revision Petitions fail and are, accordingly, dismissed. Dt:22.09.2011 RAMESH RANGANATHAN,J