Or.6, rule 17 ,Order 21 Rules 97 and 101 CPC -amendment of claim petition - introduction of new case - Not maintainable - Lower court rightly dismissed the same = High court dismissed the Civil Revision Petition = Sri Venkata Ramana Arcade, Nellore,being a partnership firm, represented by its Managing Partner, M.Radha Krishnaiah.... Petitioner Y.Vijaya Lakshmamma (died) and others...Respondents = Published in judis.nic.in/judis_andhra/filename=10283
Or.6, rule 17 ,Order 21 Rules 97 and 101 CPC -amendment of claim petition - introduction of new case - Not maintainable - Lower court rightly dismissed the same = High court dismissed the Civil Revision Petition =
Under the proposed amendments, the petitioner firm sought to
introduce a wholly new foundation for justifying its claim by putting up an
agreement of sale allegedly executed in its favour in respect of the E.P.
schedule property. This agreement of sale was dated about two months prior to
the date of the filing of E.A. 444 of 2005. However, no mention thereof was made
in the original claim petition and the contents thereof indicated a different
basis altogether for the claim under Order 21 Rules 97 and 101 CPC. The case
therein was that the petitioner firm was holding possession of the property on
behalf of R.Vijaya Varma. Now, a new case is put forth that R.Vijaya Varma
executed an agreement of sale on 07.07.2005 through his G.P.A., Alluri Atchuta
Rama Raju, even before the filing of E.A.444 of 2005. The purport of this
amendment is that the petitioner firm now claims entitlement to possession of
the property in its own right and not on behalf of R.Vijaya Varma.
The dismissal of the amendment petition seeking to
introduce details of this agreement of sale in E.A.No.444 of 2005 is not based
on the merits of the amendment sought to be introduced but on the grounds stated
supra, i.e., introduction of a new case and the established lack of due
diligence in terms of the proviso to Order 6 Rule 17 CPC.
It is for the Court
dealing with O.S.No.42 of 2011 to try and adjudicate all the issues arising
therein, including the truth behind the alleged agreement of sale dated
07.07.2005, independently and uninfluenced by any observations made in these
proceedings.
Viewed thus, this Court finds no error or irregularity in the order dated
01.03.2013 passed by the Court below dismissing E.A.No.366 of 2012. CRP No.1646
of 2013 is therefore dismissed.
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NOs.4257 OF 2012 and batch
dated:02-09-2013
Sri Venkata Ramana Arcade, Nellore,being a partnership firm, represented by its
Managing Partner, M.Radha Krishnaiah.... Petitioner
Y.Vijaya Lakshmamma (died) and others...Respondents
Counsel for petitioner: Sri K.S.Gopalakrishnan
Counsel for respondents: Sri T.Lakshmi Narayana
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1) (2012) 2 SCC 300
2) (2001) 8 SCC 97
3) (2007) 6 SCC 167
4) (2011) 12 SCC 268
5) (2012) 11 SCC 341
6) (2009) 10 SCC 84
7) (2009) 2 SCC 409
8) (2008) 5 SCC 117
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NOs.4257 OF 2012
AND 1646 OF 2013
C O M M O N O R D E R
Sri Venkata Ramana Arcade, Nellore, a partnership firm, is the petitioner in
these two civil revision petitions.
The genesis of this lis can be traced to O.S.No.138 of 1994 instituted by
Y.Vijaya Lakshmamma and Y.Krishnavenamma, widows of late Y.Chandrasekhar Reddy,
before the learned Senior Civil Judge, Nellore, against ten individuals seeking
their ejectment from the plaint schedule property, viz., the building bearing
D.No.283 (new D.No.284), situated at Ward No14, Trunk Road, Nellore. By judgment
dated 09.07.2001, the trial Court decreed the suit. The same was confirmed in
appeal by the learned District Judge, Nellore, in A.S.No.69 of 2001 on
29.04.2003 and thereafter, by a learned Judge of this Court in S.A.No.647 of
2003 on 19.07.2005. The judgment of this Court was tested before the Supreme
Court of India in Special Leave to Appeal (Civil) No.21787 of 2005 but the same
was dismissed by order dated 11.11.2005.
E.P.No.151 of 2005 was instituted on the file of the Principal Senior Civil
Judge, Nellore, (hereinafter, 'the Court below') by the decree holders for
execution of this decree against C.R.Padma, the fourth respondent herein.
The
plaintiffs in the suit having died, Y.Chandrashekar Reddy, the third respondent
herein, came on record as the legal representative of the deceased second decree
holder - Y.Krishnavenamma.
While so, Sri Venkata Ramana Arcade, Nellore, the petitioner firm, filed
E.A.No.444 of 2005 in E.P.No.151 of 2005 under Order 21 Rules 97 and 101 CPC
claiming that late Y.Vijaya Lakshmamma and late Y.Krishnavenamma, through their
general power-of-attorney holder, Y.V.Ramana Reddy, the father of the third
respondent herein, executed agreement of sale dated 13.12.1997 in favour of one
R.Vijaya Varma; that R.Vijaya Varma filed O.S.No.33 of 2005 on the file of the
learned III Additional District Judge, Nellore, for specific performance of the
said agreement of sale; and that on behalf of the said R.Vijaya Varma, the
petitioner firm was in possession and enjoyment of the E.P. schedule property
since 22.07.2004.
Significantly, O.S.No.33 of 2005 was dismissed as settled out of court on
10.12.2010. Further, the execution of the agreement of sale dated 13.12.1997 was
denied by the defendants in that suit.
Initially, the petitioner firm moved E.A.No.95 of 2009 in E.A.No.444 of 2005
under Section 146 CPC to implead respondents 5 and 6 therein as legal heirs of
Y.Vijaya Lakshmamma, the deceased first respondent in E.A.No.444 of 2005. By
order dated 14.02.2011, the Court below dismissed the said E.A. Aggrieved
thereby, the petitioner firm filed C.R.P.No.4257 of 2012 before this Court. Sri
K.S.Gopalakrishnan, learned counsel for the petitioner firm, however states that
his client is not pressing C.R.P.No.4257 of 2012. The said statement is duly
recorded.
Later, the petitioner firm filed E.A.No.487 of 2011 in E.A.No.444 of 2005 to
reopen the said E.A. to enable it to file petitions for amendment of its claim
petition; for recalling PW1; and for adducing further evidence. This E.A. was
allowed by the Court below on 10.10.2011. The petitioner firm also filed
E.A.No.488 of 2011 in E.A.No.444 of 2005 to re-call PW.1 for the purpose of
adducing further evidence and for the purpose of filing amendment and evidence
receiving petitions. The affidavit filed in support of this E.A. was identical
to the affidavit filed in E.A.No.487 of 2011. This E.A. was also allowed by the
Court below. The petitioner firm then filed E.A.No.234 of 2012 in E.A.No.444 of
2005 to grant leave to it to file certain documents. By order dated 02.08.2012,
the Court below allowed the said E.A., subject to consideration of the
proof/relevance and admissibility of the said documents at the time of their
marking. Thereupon, the petitioner firm filed E.A.No.366 of 2012 under Order 6
Rule 17 CPC r/w Section 151 CPC seeking to amend its claim petition in
E.A.No.444 of 2005. Thereby, the petitioner firm wanted to insert paragraphs
4(a), (b), (c), (d) and (e) in the claim petition. By order dated 01.03.2013,
the Court below dismissed this E.A. giving rise to C.R.P.No.1646 of 2013. As the
petitioner firm is not pressing C.R.P.No.4257 of 2012, only C.R.P.No.1646 of
2013 survives for consideration.
It may be noted that E.A.No.234 of 2012 was filed by the petitioner firm on the
strength of the very same affidavit filed in support of E.A.Nos.487 and 488 of
2011, except for the prayer portion. The affidavit filed in support of
E.A.No.366 of 2012 was again a reiteration of the contents of the affidavits
filed in the earlier E.As. The sum and substance of this common affidavit was
that the claim petition had been filed with the then available material through
the previous counsel but thereafter, the Managing Partner of the petitioner firm
secured other material documents. However, as the facts which were put to RW1,
the third respondent herein, during his cross-examination were not pleaded in
detail at the initial stage in the claim petition by the previous counsel, the
Managing Partner of the petitioner firm stated that it had become essential to
seek amendment of the claim petition. He further stated that the amendments
would not change the cause of action pleaded in the original claim petition and
that the amendments were only a detailed explanation and in addition to the
facts already pleaded in the claim petition. He also stated that though the
proposed amendments were sought after commencement of the enquiry, in order to
avoid further litigation and also in the interest of justice, the same ought to
be allowed though belated. He asserted that the proposed amendments were
essential to adjudicate the real questions in controversy and for avoiding
multiplicity of proceedings. Para-3 of the affidavit is relevant and is
extracted hereunder:
"3. We have no knowledge about court proceedings. Inspite of our due
diligence, all necessary documents were not placed before our previous counsel
due to lack of proper instructions and guidance from my previous counsel.
During cross examination of RW-1 by my present counsel I was advised to supply
all the documents which were confronted to RW-1 during his cross examination.
Unless necessary amendments detailed in the annexed petition are sought for,
there is likelihood of the respondent/3rd respondent to point out the same
during the course of argument on the ground that evidence without pleading
cannot be entertained. In such an event I will be forced to sustain irreparable
loss and hardship. I am having good grounds to succeed in the claim petition.
For proper adjudication of the above claim petition, the proposed amendments are
very much essential. As due to inadvertence of our previous counsel, the
proposed amendments were not incorporated in the claim petition, the proposed
amendments are sought for under acute circumstances. The proposed amendments
explain that it is only a different or additional approach to the same facts
already on record for just determination of the annexed claim petition. Hence,
I am advised to file this petition."
It is on the strength of the aforestated pleadings that the petitioner
firm sought to amend E.A.No.444 of 2005 by incorporating paragraphs 4(a) to (e)
therein. The gist of these paragraphs is to this effect:
The agreement of sale dated 13.12.1997 was executed by Y.Vijaya Lakshmamma
and Y.Krishnavenamma, through their GPA, Y.V.Ramana Reddy, in favour of R.Vijaya
Varma. Since the date of handing over of the possession of the entire building
by Y.Vijaya Lakshmamma and Y.Krishnavenamma, through their GPA, Y.V.Ramana
Reddy, to R.Vijaya Varma, the petitioner firm was in possession thereof and was
paying property taxes, electricity charges and municipal tap charges for the
entire building, including the E.P. schedule property. The petitioner firm had
entered into a partnership agreement in respect of the business with R.Vijaya
Varma and his associate, Alluri Atchuta Rama Raju, on 22.07.2004 itself and was
running its branch therein from March, 2005. R.Vijaya Varma executed registered
GPA dated 09.05.2005 in favour of Alluri Atchuta Rama Raju empowering him to
deal with the entire property of Y.Vijaya Lakshmamma and Y.Krishnavenamma,
including the E.P. schedule property. The Managing Partner of the petitioner
firm and his two sons thereafter purchased the entire building, including the
E.P. schedule property, from R.Vijaya Varma through his GPA, Alluri Atchuta Rama
Raju, under agreement of sale dated 07.07.2005. O.S.No.33 of 2005 was filed by
R.Vijaya Varma against the third respondent herein and five others, wherein
Y.Vijaya Lakshmamma, Y.Krishnavenamma and the third respondent herein
maliciously denied the execution of the agreement of sale dated 13.12.1997 in
favour of R.Vijaya Varma. The third respondent herein, in collusion with the
said R.Vijaya Varma, got the said suit withdrawn on 10.12.2010. However, mere
withdrawal of the suit through collusion would not extinguish the sale of the
entire property, including the E.P. schedule property, under the agreement of
sale dated 07.07.2005 executed by R.Vijaya Varma through his GPA, Alluri Atchuta
Rama Raju, in favour of the Managing Partner of the petitioner firm and his two
sons. Reference was also made to some other litigation between the parties.
It is relevant to note that E.A.No.444 of 2005 was filed on 02.09.2005.
Therein, the Managing Partner of the petitioner firm stated that during the
pendency of the suit, O.S.No.138 of 1994, C.R.Padma, the fourth respondent in
E.P.No.151 of 2005, vacated the E.P. schedule property and thereafter, Y.Vijaya
Lakshmamma and the third respondent herein delivered possession of the property
to R.Vijaya Varma and his associate, Alluri Atchuta Rama Raju, on 22.07.2004.
The petitioner firm claimed that it was in partnership with the said R.Vijaya
Varma and his associate, Alluri Atchuta Rama Raju, and was carrying on business
in home appliances under the name and style of 'Sri Venkata Ramana Arcade' in
the said property since 22.07.2004. A specific averment was made therein that
the petitioner firm was in possession and enjoyment of the E.P. schedule
property from 22.07.2004 for and on behalf of the purchaser, R.Vijaya Varma.
Reference was made to the agreement of sale dated 13.12.1997 allegedly executed
by the original decree holders in favour of R.Vijaya Varma, and the suit,
O.S.No.33 of 2005, filed for specific performance thereof. Reference was also
made to O.S.No.251 of 2005 filed by Y.Vijaya Lakshmamma and the third respondent
herein before the I Additional Junior Civil Judge, Nellore, against the
petitioner firm for a permanent injunction in respect of the first and second
floors of the subject building The petitioner firm further stated that Y.Vijaya
Lakshmamma and the third respondent herein had gone back on the terms of the
agreement of sale dated 13.12.1997 and taking advantage of the eviction decree
in O.S.No.138 of 1994, they were trying to evict it. The petitioner firm claimed
that it was obstructing the same as a third party, not being bound by the
eviction decree. The cause of action was stated to have arisen on 22.07.2004
when possession of the E.P. schedule property was delivered, since which date
the petitioner firm claimed that it was carrying on business therein along with
R.Vijaya Varma.
Notably, there was no mention whatsoever in the claim petition dated
02.09.2005 of the agreement of sale dated 07.07.2005 allegedly executed by
R.Vijaya Varma, through his G.P.A., Alluri Atchuta Rama Raju, in favour of the
Managing Partner of the petitioner firm and his two sons. On the other hand, the
specific case put forth therein was that R.Vijaya Varma was delivered possession
of the property pursuant to the alleged agreement of sale dated 13.12.1997
executed in his favour by the original decree holders through their G.P.A.,
Y.V.Ramana Reddy, and that the petitioner firm was in possession and enjoyment
of the said property on behalf of and through R.Vijaya Varma owing to the
partnership agreement which existed between them.
The third respondent herein filed a counter to this E.A. contending that the
same was not permissible in law and was not maintainable. He alleged that the
petitioner firm was introducing a new case by way of the amendment, which was
entirely different from the original case. He further stated that evidence of
both the sides in E.A.No.444 of 2005 had already concluded and that the
amendment petition was filed at a belated stage only to protract the
proceedings. He pointed out that the petitioner firm did not disclose the
existence of the alleged agreement of sale dated 07.07.2005 in its claim
petition and during examination-in-chief of PW1, the Managing Partner of the
petitioner firm, recorded on 19.09.2006 and his cross-examination on 17.10.2006.
He pointed out that he was cross-examined as RW1 on 04.07.2011, on which date
also the said agreement of sale was not mentioned. He therefore contended that
the said agreement of sale was brought into existence with the collusion of
Alluri Atchuta Rama Raju.
One other fact which requires to be taken note of is that the Managing Partner
of the petitioner firm and his two sons filed O.S.No.42 of 2011 before the
learned VI Additional District Judge, Nellore, seeking specific performance of
the agreement of sale dated 07.07.2005. This suit was instituted against
R.Vijaya Varma, Alluri Atchuta Rama Raju, Y.V.Ramana Reddy, Y.Chandrashekar
Reddy, the third respondent herein, and his sister, Y.Kalpana.
The Court below passed order dated 01.03.2013 dismissing E.A.No.366 of 2012.
After extracting the relevant pleadings and the case law relied upon by the
parties, the Court below opined that the proposed amendment introduced a totally
new case and that the same was not an explanation of or in addition to the
original pleadings, being inconsistent with the original case pleaded. The Court
below therefore held that the petitioner firm could not be permitted to
introduce a new case after completion of the evidence of both sides. The
application was therefore held not maintainable and was accordingly dismissed.
Sri K.S.Gopalakrishnan, learned counsel for the petitioner firm, advanced varied
arguments on its behalf. He pointed out that the other E.A.s filed by his client
for reopening E.A.No.444 of 2005, for recalling PW.1, and for adducing
additional documentary evidence were all allowed by the Court below. He
contended that once those applications were allowed, not allowing his client to
amend its claim petition would not be proper. He argued that without such
amendment no purpose would be served by allowing the other E.A.s. He contended
that as a separate suit had already been instituted in O.S.No.42 of 2011 in
respect of the agreement of sale dated 07.07.2005, the refusal by the Court
below to allow the amendment of the claim petition, bringing in the said
agreement of sale, would be fatal to the plaintiffs' case in O.S.No.42 of 2011.
Learned counsel further contended that though his client had filed the subject
E.A. under Order 6 Rule 17 CPC, the same would have no application as this was
not a suit but an execution petition. He therefore contended that the 'due
diligence' concept under the proviso to Order 6 Rule 17 CPC would have no
application.
Learned counsel also placed reliance on the Order dated 09.04.2008 passed by
this Court in W.P.No.6678 of 2005. The said writ petition was filed by Y.Vijaya
Lakshmamma and Y.Chandrashekar Reddy, the third respondent herein, against the
police authorities, the Managing Partner of the petitioner firm and his two
sons, seeking a declaration that the action of the police authorities in
interfering with the civil disputes between the petitioners and the Managing
Partner of the petitioner firm and his sons in respect of the building at Ward
No.14, Nellore town, which belonged to them was illegal. By order dated
09.04.2008, this Court observed that the police authorities could not interfere
with civil disputes and disposed of the writ petition directing the police
authorities not to interfere with the civil disputes between the writ
petitioners and the private respondents. The parties were given liberty to work
out their remedies before the civil Court.
Basing on this Order, the learned counsel for the petitioner firm contended that
Y.Vijaya Lakshmamma and Y.Chandrashekar Reddy, the writ petitioners, were well
aware of the fact that the petitioner firm was in occupation of the E.P.
schedule property and despite the same, they failed to implead it in the E.P.
This aspect is however eschewed from consideration as it is for the petitioner
firm to succeed before the Court below in E.A.444 of 2005 on the strength of its
own case and observations by this Court on the merits of the matter are not
warranted at this stage.
The only issue that arises for consideration in CRP No.1646 of 2013 is as to
whether the Court below was justified in dismissing the amendment application
filed by the petitioner firm.
At the outset, the contention urged by Sri K.S.Gopalakrishnan, learned counsel,
that Order 6 Rule 17 CPC would have no application to the subject proceedings
requires to be rejected. Order 21 Rule 101 CPC postulates that all questions
arising between the parties to a proceeding on an application under Order 21
Rule 97 or Rule 99 CPC shall be determined by the Court dealing therewith and
not by a separate suit. Order 21 Rule 103 CPC makes it clear that the order
passed upon adjudication of such an application would have the same force and be
subject to the same conditions as to an appeal or otherwise as if it were a
decree. Therefore, the Court below while hearing the claim petition filed by
the petitioner firm has to apply the procedure applicable to a suit and
consequently, Order 6 Rule 17 C.P.C would have application if an amendment is
sought in the claim petition. Further, the petitioner firm itself filed the
subject E.A under this provision. It cannot therefore retract from its own
action at this stage. A party to the litigation cannot be permitted to
approbate and reprobate at its convenience to suit its own interests.
While conscious of the fact that the correctness or falsity of the case in the
amendment should not be gone into at the time of considering as to whether an
application for such amendment should be allowed or not, this Court is equally
alive to the settled legal proposition that an amendment which introduces a
totally different, new and inconsistent case or changes the fundamental
character of the case already instituted should be refused. No amendment which
would cause injustice to the opposite party would normally be permitted unless
the same can be compensated by costs. Though amendments are to be permitted
ordinarily at any stage of the proceedings, the discretionary power conferred on
the Court in this regard must be exercised with balance and equanimity. The
primary and predominant consideration of the Court would be to see as to whether
such amendment is necessary for determining the real question in controversy and
whether the same can be allowed without causing prejudice to the other side.
After the amendment of Order 6 Rule 17 CPC in the year 2002, the proviso thereto
restricts and curtails the power of the Court to allow amendment of pleadings
once the trial has commenced. In such a situation, the Court must come to the
conclusion that in spite of due diligence, the party could not have sought such
amendment before commencement of the trial. Due diligence, in this context,
would mean the reasonable level of diligence expected of and exercised by a
prudent man while conducting his affairs. These legal principles are culled out
from the following case law.
In J.SAMUEL V/s. GATTU MAHESH 1, the Supreme Court observed that the Court's
discretion to grant permission to a party to amend his pleadings would be
dependant on two conditions - firstly, no injustice should be done to the other
side and secondly, the amendment must be necessary for the purpose of
determining the real question in controversy between the parties. The Supreme
Court further observed that to balance the interests of the parties in pursuit
of doing justice, the proviso to Order 6 Rule 17 CPC had been added, which
postulated 'due diligence' as a test to determine whether to exercise discretion
in permitting a requested amendment after commencement of the trial.
In ESTRALLA RUBBER V/s. DASS ESTATE (P) LTD 2, the Supreme Court held that delay
in making an application under Order 6 Rule 17 CPC would not, on its own, be a
ground for rejection of the application. The Supreme Court observed that serious
prejudice should be caused to the other side and accrued rights must be taken
away as a result of such amendment for it to be rejected. However, this judgment
was rendered prior to the amendment of Order 6 Rule 17 CPC in the year 2002 and
would therefore have to be construed accordingly.
In ANDHRA BANK V/s. ABN AMRO BANK N.V.3, the Supreme Court reiterated that
delay in itself would not be a ground for rejecting a plea for amendment of the
pleading and that the Court could not go into the merit of the amendment to
decide as to whether such a plea for amendment should be permitted. This case
also did not turn upon the amended proviso to Order 6 Rule 17 CPC.
In STATE OF MADHYA PRADESH V/s. UNION OF INDIA 4 and again in ABDUL REHMAN
V/s. MOHD. RULDU 5, the Supreme Court held that the proviso to Order 6 Rule 17
CPC, to some extent, curtailed the absolute discretion to allow amendment at any
stage and that if the application was filed after commencement of the trial, it
had to be established that in spite of due diligence it could not have been
sought earlier. The main purpose of allowing the amendment, per the Court,
should be to minimize litigation.
In REVAJEETU BUILDERS V/s. NARAYANASWAMY 6, on an analysis of English and
Indian case law, the Supreme Court carved out the following principles which
should weigh with the Court while dealing with an application for amendment:
(1) whether the amendment sought is imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is bonafide or malafide;
(3) the amendment should not cause such prejudice to the other side which cannot
be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on
the amended claims would be barred by limitation on the date of application.
The Supreme Court however clarified that the above principles were only
illustrative and not exhaustive.
In VIDYABAI V/s. PADMALATHA7, the Supreme Court observed that the proviso to
Order 6 Rule 17 CPC is couched in a mandatory form and therefore, the Court's
jurisdiction to allow an application for amendment is taken away thereunder
unless the conditions precedent therefor are satisfied, viz., it must come to a
conclusion that in spite of due diligence the party could not have raised the
matter before the commencement of the trial. The Supreme Court observed that it
is the primary duty of the Court to decide as to whether such an amendment is
necessary to decide the real dispute between the parties. Only if such a
condition is fulfilled, the amendment is to be allowed. The proviso appended to
Order 6 Rule 17 CPC was held to restrict the power of the Court and placed an
embargo on exercise of its jurisdiction and unless the jurisdictional fact as
envisaged therein is found to exist, the Court would have no jurisdiction at all
to allow the amendment.
In CHANDER KANTA BANSAL V/s. RAJINDER SINGH 8, the Supreme Court, taking note of
the fact that 'due diligence' has not been defined in the CPC, referred to the
dictionary meaning of 'diligence', which is to the effect that it means careful
and persistent application or effort or a continual effort to accomplish
something; care; caution; the attention and care required from a person in a
given situation, and observed that 'due diligence' means the diligence
reasonably expected from and ordinarily exercised by a person who seeks to
satisfy a legal requirement or to discharge an obligation. Reference was also
made to 'Words and Phrases' by Drain-Dyspnea (Permanent Edn. 13-A) wherein 'due
diligence' was defined in law to mean doing everything reasonable and not
everything possible. The Supreme Court therefore concluded that 'due diligence'
would mean reasonable diligence and would mean such diligence as a prudent man
would exercise in the conduct of his own affairs.
The petitioner firm in the present case claimed that the subject amendments
would not change the cause of action pleaded by it in the original claim
petition and that they were only a detailed explanation of and in addition to
the facts already pleaded.
Applying the settled legal principles set out supra, this Court finds that this
was not so. Under the proposed amendments, the petitioner firm sought to
introduce a wholly new foundation for justifying its claim by putting up an
agreement of sale allegedly executed in its favour in respect of the E.P.
schedule property. This agreement of sale was dated about two months prior to
the date of the filing of E.A. 444 of 2005. However, no mention thereof was made
in the original claim petition and the contents thereof indicated a different
basis altogether for the claim under Order 21 Rules 97 and 101 CPC. The case
therein was that the petitioner firm was holding possession of the property on
behalf of R.Vijaya Varma. Now, a new case is put forth that R.Vijaya Varma
executed an agreement of sale on 07.07.2005 through his G.P.A., Alluri Atchuta
Rama Raju, even before the filing of E.A.444 of 2005. The purport of this
amendment is that the petitioner firm now claims entitlement to possession of
the property in its own right and not on behalf of R.Vijaya Varma.
As regards compliance with the requirements of the proviso to Order 6 Rule 17
C.P.C, except for a bald averment that it had no knowledge of Court proceedings
and that despite due diligence all the necessary documents were not placed
before the previous counsel, there is no explanation forthcoming as to why the
agreement of sale allegedly executed just two months prior to the filing of the
claim petition was not even mentioned therein. This Court need say no more as
the merits of this claim are not to be gone into by this Court at this stage.
The inexorable fact however remains that the petitioner firm sought to introduce
a wholly new case through the proposed amendments and despite the completion of
evidence in E.A.No.444 of 2005, it did not choose to put forth any valid reasons
to satisfy the Court below that despite due diligence it could not seek such
amendment prior to the commencement of the trial. The Court below therefore
rightly found that the amendment introduced a totally new case and that there
was no satisfactory explanation as to due diligence having been exercised by the
petitioner firm before the commencement of the trial.
Though Sri K.S.Gopalakrishnan, learned counsel, would argue that allowing of the
applications for reopening of E.A.No.444 of 2005, for recalling of a witness and
for adducing of additional evidence would be rendered pointless in the event
amendment of the claim petition is not allowed, the considerations which would
weigh with the Court below for each of the applications being different, this
Court is not inclined to agree. In so far as the amendment petition was
concerned, the Court below rightly applied settled legal propositions and held
against the petitioner firm. This Court is also not persuaded to agree with the
learned counsel that dismissal of this application would have a negative impact
on O.S.No.42 of 2011 filed for specific performance of the alleged agreement of
sale dated 07.07.2005.
The dismissal of the amendment petition seeking to
introduce details of this agreement of sale in E.A.No.444 of 2005 is not based
on the merits of the amendment sought to be introduced but on the grounds stated
supra, i.e., introduction of a new case and the established lack of due
diligence in terms of the proviso to Order 6 Rule 17 CPC.
It is for the Court
dealing with O.S.No.42 of 2011 to try and adjudicate all the issues arising
therein, including the truth behind the alleged agreement of sale dated
07.07.2005, independently and uninfluenced by any observations made in these
proceedings.
Viewed thus, this Court finds no error or irregularity in the order dated
01.03.2013 passed by the Court below dismissing E.A.No.366 of 2012. CRP No.1646
of 2013 is therefore dismissed. C.R.P.No.4257 of 2012 is also dismissed as it is
not pressed. Pending miscellaneous petitions in both the CRPs shall also stand
dismissed. There shall be no order as to costs.
-------------------------------------------
SANJAY KUMAR, J.
2nd SEPTEMBER, 2013.
Under the proposed amendments, the petitioner firm sought to
introduce a wholly new foundation for justifying its claim by putting up an
agreement of sale allegedly executed in its favour in respect of the E.P.
schedule property. This agreement of sale was dated about two months prior to
the date of the filing of E.A. 444 of 2005. However, no mention thereof was made
in the original claim petition and the contents thereof indicated a different
basis altogether for the claim under Order 21 Rules 97 and 101 CPC. The case
therein was that the petitioner firm was holding possession of the property on
behalf of R.Vijaya Varma. Now, a new case is put forth that R.Vijaya Varma
executed an agreement of sale on 07.07.2005 through his G.P.A., Alluri Atchuta
Rama Raju, even before the filing of E.A.444 of 2005. The purport of this
amendment is that the petitioner firm now claims entitlement to possession of
the property in its own right and not on behalf of R.Vijaya Varma.
The dismissal of the amendment petition seeking to
introduce details of this agreement of sale in E.A.No.444 of 2005 is not based
on the merits of the amendment sought to be introduced but on the grounds stated
supra, i.e., introduction of a new case and the established lack of due
diligence in terms of the proviso to Order 6 Rule 17 CPC.
It is for the Court
dealing with O.S.No.42 of 2011 to try and adjudicate all the issues arising
therein, including the truth behind the alleged agreement of sale dated
07.07.2005, independently and uninfluenced by any observations made in these
proceedings.
Viewed thus, this Court finds no error or irregularity in the order dated
01.03.2013 passed by the Court below dismissing E.A.No.366 of 2012. CRP No.1646
of 2013 is therefore dismissed.
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NOs.4257 OF 2012 and batch
dated:02-09-2013
Sri Venkata Ramana Arcade, Nellore,being a partnership firm, represented by its
Managing Partner, M.Radha Krishnaiah.... Petitioner
Y.Vijaya Lakshmamma (died) and others...Respondents
Counsel for petitioner: Sri K.S.Gopalakrishnan
Counsel for respondents: Sri T.Lakshmi Narayana
<GIST:
>HEAD NOTE:
?CASES REFERRED:
1) (2012) 2 SCC 300
2) (2001) 8 SCC 97
3) (2007) 6 SCC 167
4) (2011) 12 SCC 268
5) (2012) 11 SCC 341
6) (2009) 10 SCC 84
7) (2009) 2 SCC 409
8) (2008) 5 SCC 117
THE HON'BLE SRI JUSTICE SANJAY KUMAR
CIVIL REVISION PETITION NOs.4257 OF 2012
AND 1646 OF 2013
C O M M O N O R D E R
Sri Venkata Ramana Arcade, Nellore, a partnership firm, is the petitioner in
these two civil revision petitions.
The genesis of this lis can be traced to O.S.No.138 of 1994 instituted by
Y.Vijaya Lakshmamma and Y.Krishnavenamma, widows of late Y.Chandrasekhar Reddy,
before the learned Senior Civil Judge, Nellore, against ten individuals seeking
their ejectment from the plaint schedule property, viz., the building bearing
D.No.283 (new D.No.284), situated at Ward No14, Trunk Road, Nellore. By judgment
dated 09.07.2001, the trial Court decreed the suit. The same was confirmed in
appeal by the learned District Judge, Nellore, in A.S.No.69 of 2001 on
29.04.2003 and thereafter, by a learned Judge of this Court in S.A.No.647 of
2003 on 19.07.2005. The judgment of this Court was tested before the Supreme
Court of India in Special Leave to Appeal (Civil) No.21787 of 2005 but the same
was dismissed by order dated 11.11.2005.
E.P.No.151 of 2005 was instituted on the file of the Principal Senior Civil
Judge, Nellore, (hereinafter, 'the Court below') by the decree holders for
execution of this decree against C.R.Padma, the fourth respondent herein.
The
plaintiffs in the suit having died, Y.Chandrashekar Reddy, the third respondent
herein, came on record as the legal representative of the deceased second decree
holder - Y.Krishnavenamma.
While so, Sri Venkata Ramana Arcade, Nellore, the petitioner firm, filed
E.A.No.444 of 2005 in E.P.No.151 of 2005 under Order 21 Rules 97 and 101 CPC
claiming that late Y.Vijaya Lakshmamma and late Y.Krishnavenamma, through their
general power-of-attorney holder, Y.V.Ramana Reddy, the father of the third
respondent herein, executed agreement of sale dated 13.12.1997 in favour of one
R.Vijaya Varma; that R.Vijaya Varma filed O.S.No.33 of 2005 on the file of the
learned III Additional District Judge, Nellore, for specific performance of the
said agreement of sale; and that on behalf of the said R.Vijaya Varma, the
petitioner firm was in possession and enjoyment of the E.P. schedule property
since 22.07.2004.
Significantly, O.S.No.33 of 2005 was dismissed as settled out of court on
10.12.2010. Further, the execution of the agreement of sale dated 13.12.1997 was
denied by the defendants in that suit.
Initially, the petitioner firm moved E.A.No.95 of 2009 in E.A.No.444 of 2005
under Section 146 CPC to implead respondents 5 and 6 therein as legal heirs of
Y.Vijaya Lakshmamma, the deceased first respondent in E.A.No.444 of 2005. By
order dated 14.02.2011, the Court below dismissed the said E.A. Aggrieved
thereby, the petitioner firm filed C.R.P.No.4257 of 2012 before this Court. Sri
K.S.Gopalakrishnan, learned counsel for the petitioner firm, however states that
his client is not pressing C.R.P.No.4257 of 2012. The said statement is duly
recorded.
Later, the petitioner firm filed E.A.No.487 of 2011 in E.A.No.444 of 2005 to
reopen the said E.A. to enable it to file petitions for amendment of its claim
petition; for recalling PW1; and for adducing further evidence. This E.A. was
allowed by the Court below on 10.10.2011. The petitioner firm also filed
E.A.No.488 of 2011 in E.A.No.444 of 2005 to re-call PW.1 for the purpose of
adducing further evidence and for the purpose of filing amendment and evidence
receiving petitions. The affidavit filed in support of this E.A. was identical
to the affidavit filed in E.A.No.487 of 2011. This E.A. was also allowed by the
Court below. The petitioner firm then filed E.A.No.234 of 2012 in E.A.No.444 of
2005 to grant leave to it to file certain documents. By order dated 02.08.2012,
the Court below allowed the said E.A., subject to consideration of the
proof/relevance and admissibility of the said documents at the time of their
marking. Thereupon, the petitioner firm filed E.A.No.366 of 2012 under Order 6
Rule 17 CPC r/w Section 151 CPC seeking to amend its claim petition in
E.A.No.444 of 2005. Thereby, the petitioner firm wanted to insert paragraphs
4(a), (b), (c), (d) and (e) in the claim petition. By order dated 01.03.2013,
the Court below dismissed this E.A. giving rise to C.R.P.No.1646 of 2013. As the
petitioner firm is not pressing C.R.P.No.4257 of 2012, only C.R.P.No.1646 of
2013 survives for consideration.
It may be noted that E.A.No.234 of 2012 was filed by the petitioner firm on the
strength of the very same affidavit filed in support of E.A.Nos.487 and 488 of
2011, except for the prayer portion. The affidavit filed in support of
E.A.No.366 of 2012 was again a reiteration of the contents of the affidavits
filed in the earlier E.As. The sum and substance of this common affidavit was
that the claim petition had been filed with the then available material through
the previous counsel but thereafter, the Managing Partner of the petitioner firm
secured other material documents. However, as the facts which were put to RW1,
the third respondent herein, during his cross-examination were not pleaded in
detail at the initial stage in the claim petition by the previous counsel, the
Managing Partner of the petitioner firm stated that it had become essential to
seek amendment of the claim petition. He further stated that the amendments
would not change the cause of action pleaded in the original claim petition and
that the amendments were only a detailed explanation and in addition to the
facts already pleaded in the claim petition. He also stated that though the
proposed amendments were sought after commencement of the enquiry, in order to
avoid further litigation and also in the interest of justice, the same ought to
be allowed though belated. He asserted that the proposed amendments were
essential to adjudicate the real questions in controversy and for avoiding
multiplicity of proceedings. Para-3 of the affidavit is relevant and is
extracted hereunder:
"3. We have no knowledge about court proceedings. Inspite of our due
diligence, all necessary documents were not placed before our previous counsel
due to lack of proper instructions and guidance from my previous counsel.
During cross examination of RW-1 by my present counsel I was advised to supply
all the documents which were confronted to RW-1 during his cross examination.
Unless necessary amendments detailed in the annexed petition are sought for,
there is likelihood of the respondent/3rd respondent to point out the same
during the course of argument on the ground that evidence without pleading
cannot be entertained. In such an event I will be forced to sustain irreparable
loss and hardship. I am having good grounds to succeed in the claim petition.
For proper adjudication of the above claim petition, the proposed amendments are
very much essential. As due to inadvertence of our previous counsel, the
proposed amendments were not incorporated in the claim petition, the proposed
amendments are sought for under acute circumstances. The proposed amendments
explain that it is only a different or additional approach to the same facts
already on record for just determination of the annexed claim petition. Hence,
I am advised to file this petition."
It is on the strength of the aforestated pleadings that the petitioner
firm sought to amend E.A.No.444 of 2005 by incorporating paragraphs 4(a) to (e)
therein. The gist of these paragraphs is to this effect:
The agreement of sale dated 13.12.1997 was executed by Y.Vijaya Lakshmamma
and Y.Krishnavenamma, through their GPA, Y.V.Ramana Reddy, in favour of R.Vijaya
Varma. Since the date of handing over of the possession of the entire building
by Y.Vijaya Lakshmamma and Y.Krishnavenamma, through their GPA, Y.V.Ramana
Reddy, to R.Vijaya Varma, the petitioner firm was in possession thereof and was
paying property taxes, electricity charges and municipal tap charges for the
entire building, including the E.P. schedule property. The petitioner firm had
entered into a partnership agreement in respect of the business with R.Vijaya
Varma and his associate, Alluri Atchuta Rama Raju, on 22.07.2004 itself and was
running its branch therein from March, 2005. R.Vijaya Varma executed registered
GPA dated 09.05.2005 in favour of Alluri Atchuta Rama Raju empowering him to
deal with the entire property of Y.Vijaya Lakshmamma and Y.Krishnavenamma,
including the E.P. schedule property. The Managing Partner of the petitioner
firm and his two sons thereafter purchased the entire building, including the
E.P. schedule property, from R.Vijaya Varma through his GPA, Alluri Atchuta Rama
Raju, under agreement of sale dated 07.07.2005. O.S.No.33 of 2005 was filed by
R.Vijaya Varma against the third respondent herein and five others, wherein
Y.Vijaya Lakshmamma, Y.Krishnavenamma and the third respondent herein
maliciously denied the execution of the agreement of sale dated 13.12.1997 in
favour of R.Vijaya Varma. The third respondent herein, in collusion with the
said R.Vijaya Varma, got the said suit withdrawn on 10.12.2010. However, mere
withdrawal of the suit through collusion would not extinguish the sale of the
entire property, including the E.P. schedule property, under the agreement of
sale dated 07.07.2005 executed by R.Vijaya Varma through his GPA, Alluri Atchuta
Rama Raju, in favour of the Managing Partner of the petitioner firm and his two
sons. Reference was also made to some other litigation between the parties.
It is relevant to note that E.A.No.444 of 2005 was filed on 02.09.2005.
Therein, the Managing Partner of the petitioner firm stated that during the
pendency of the suit, O.S.No.138 of 1994, C.R.Padma, the fourth respondent in
E.P.No.151 of 2005, vacated the E.P. schedule property and thereafter, Y.Vijaya
Lakshmamma and the third respondent herein delivered possession of the property
to R.Vijaya Varma and his associate, Alluri Atchuta Rama Raju, on 22.07.2004.
The petitioner firm claimed that it was in partnership with the said R.Vijaya
Varma and his associate, Alluri Atchuta Rama Raju, and was carrying on business
in home appliances under the name and style of 'Sri Venkata Ramana Arcade' in
the said property since 22.07.2004. A specific averment was made therein that
the petitioner firm was in possession and enjoyment of the E.P. schedule
property from 22.07.2004 for and on behalf of the purchaser, R.Vijaya Varma.
Reference was made to the agreement of sale dated 13.12.1997 allegedly executed
by the original decree holders in favour of R.Vijaya Varma, and the suit,
O.S.No.33 of 2005, filed for specific performance thereof. Reference was also
made to O.S.No.251 of 2005 filed by Y.Vijaya Lakshmamma and the third respondent
herein before the I Additional Junior Civil Judge, Nellore, against the
petitioner firm for a permanent injunction in respect of the first and second
floors of the subject building The petitioner firm further stated that Y.Vijaya
Lakshmamma and the third respondent herein had gone back on the terms of the
agreement of sale dated 13.12.1997 and taking advantage of the eviction decree
in O.S.No.138 of 1994, they were trying to evict it. The petitioner firm claimed
that it was obstructing the same as a third party, not being bound by the
eviction decree. The cause of action was stated to have arisen on 22.07.2004
when possession of the E.P. schedule property was delivered, since which date
the petitioner firm claimed that it was carrying on business therein along with
R.Vijaya Varma.
Notably, there was no mention whatsoever in the claim petition dated
02.09.2005 of the agreement of sale dated 07.07.2005 allegedly executed by
R.Vijaya Varma, through his G.P.A., Alluri Atchuta Rama Raju, in favour of the
Managing Partner of the petitioner firm and his two sons. On the other hand, the
specific case put forth therein was that R.Vijaya Varma was delivered possession
of the property pursuant to the alleged agreement of sale dated 13.12.1997
executed in his favour by the original decree holders through their G.P.A.,
Y.V.Ramana Reddy, and that the petitioner firm was in possession and enjoyment
of the said property on behalf of and through R.Vijaya Varma owing to the
partnership agreement which existed between them.
The third respondent herein filed a counter to this E.A. contending that the
same was not permissible in law and was not maintainable. He alleged that the
petitioner firm was introducing a new case by way of the amendment, which was
entirely different from the original case. He further stated that evidence of
both the sides in E.A.No.444 of 2005 had already concluded and that the
amendment petition was filed at a belated stage only to protract the
proceedings. He pointed out that the petitioner firm did not disclose the
existence of the alleged agreement of sale dated 07.07.2005 in its claim
petition and during examination-in-chief of PW1, the Managing Partner of the
petitioner firm, recorded on 19.09.2006 and his cross-examination on 17.10.2006.
He pointed out that he was cross-examined as RW1 on 04.07.2011, on which date
also the said agreement of sale was not mentioned. He therefore contended that
the said agreement of sale was brought into existence with the collusion of
Alluri Atchuta Rama Raju.
One other fact which requires to be taken note of is that the Managing Partner
of the petitioner firm and his two sons filed O.S.No.42 of 2011 before the
learned VI Additional District Judge, Nellore, seeking specific performance of
the agreement of sale dated 07.07.2005. This suit was instituted against
R.Vijaya Varma, Alluri Atchuta Rama Raju, Y.V.Ramana Reddy, Y.Chandrashekar
Reddy, the third respondent herein, and his sister, Y.Kalpana.
The Court below passed order dated 01.03.2013 dismissing E.A.No.366 of 2012.
After extracting the relevant pleadings and the case law relied upon by the
parties, the Court below opined that the proposed amendment introduced a totally
new case and that the same was not an explanation of or in addition to the
original pleadings, being inconsistent with the original case pleaded. The Court
below therefore held that the petitioner firm could not be permitted to
introduce a new case after completion of the evidence of both sides. The
application was therefore held not maintainable and was accordingly dismissed.
Sri K.S.Gopalakrishnan, learned counsel for the petitioner firm, advanced varied
arguments on its behalf. He pointed out that the other E.A.s filed by his client
for reopening E.A.No.444 of 2005, for recalling PW.1, and for adducing
additional documentary evidence were all allowed by the Court below. He
contended that once those applications were allowed, not allowing his client to
amend its claim petition would not be proper. He argued that without such
amendment no purpose would be served by allowing the other E.A.s. He contended
that as a separate suit had already been instituted in O.S.No.42 of 2011 in
respect of the agreement of sale dated 07.07.2005, the refusal by the Court
below to allow the amendment of the claim petition, bringing in the said
agreement of sale, would be fatal to the plaintiffs' case in O.S.No.42 of 2011.
Learned counsel further contended that though his client had filed the subject
E.A. under Order 6 Rule 17 CPC, the same would have no application as this was
not a suit but an execution petition. He therefore contended that the 'due
diligence' concept under the proviso to Order 6 Rule 17 CPC would have no
application.
Learned counsel also placed reliance on the Order dated 09.04.2008 passed by
this Court in W.P.No.6678 of 2005. The said writ petition was filed by Y.Vijaya
Lakshmamma and Y.Chandrashekar Reddy, the third respondent herein, against the
police authorities, the Managing Partner of the petitioner firm and his two
sons, seeking a declaration that the action of the police authorities in
interfering with the civil disputes between the petitioners and the Managing
Partner of the petitioner firm and his sons in respect of the building at Ward
No.14, Nellore town, which belonged to them was illegal. By order dated
09.04.2008, this Court observed that the police authorities could not interfere
with civil disputes and disposed of the writ petition directing the police
authorities not to interfere with the civil disputes between the writ
petitioners and the private respondents. The parties were given liberty to work
out their remedies before the civil Court.
Basing on this Order, the learned counsel for the petitioner firm contended that
Y.Vijaya Lakshmamma and Y.Chandrashekar Reddy, the writ petitioners, were well
aware of the fact that the petitioner firm was in occupation of the E.P.
schedule property and despite the same, they failed to implead it in the E.P.
This aspect is however eschewed from consideration as it is for the petitioner
firm to succeed before the Court below in E.A.444 of 2005 on the strength of its
own case and observations by this Court on the merits of the matter are not
warranted at this stage.
The only issue that arises for consideration in CRP No.1646 of 2013 is as to
whether the Court below was justified in dismissing the amendment application
filed by the petitioner firm.
At the outset, the contention urged by Sri K.S.Gopalakrishnan, learned counsel,
that Order 6 Rule 17 CPC would have no application to the subject proceedings
requires to be rejected. Order 21 Rule 101 CPC postulates that all questions
arising between the parties to a proceeding on an application under Order 21
Rule 97 or Rule 99 CPC shall be determined by the Court dealing therewith and
not by a separate suit. Order 21 Rule 103 CPC makes it clear that the order
passed upon adjudication of such an application would have the same force and be
subject to the same conditions as to an appeal or otherwise as if it were a
decree. Therefore, the Court below while hearing the claim petition filed by
the petitioner firm has to apply the procedure applicable to a suit and
consequently, Order 6 Rule 17 C.P.C would have application if an amendment is
sought in the claim petition. Further, the petitioner firm itself filed the
subject E.A under this provision. It cannot therefore retract from its own
action at this stage. A party to the litigation cannot be permitted to
approbate and reprobate at its convenience to suit its own interests.
While conscious of the fact that the correctness or falsity of the case in the
amendment should not be gone into at the time of considering as to whether an
application for such amendment should be allowed or not, this Court is equally
alive to the settled legal proposition that an amendment which introduces a
totally different, new and inconsistent case or changes the fundamental
character of the case already instituted should be refused. No amendment which
would cause injustice to the opposite party would normally be permitted unless
the same can be compensated by costs. Though amendments are to be permitted
ordinarily at any stage of the proceedings, the discretionary power conferred on
the Court in this regard must be exercised with balance and equanimity. The
primary and predominant consideration of the Court would be to see as to whether
such amendment is necessary for determining the real question in controversy and
whether the same can be allowed without causing prejudice to the other side.
After the amendment of Order 6 Rule 17 CPC in the year 2002, the proviso thereto
restricts and curtails the power of the Court to allow amendment of pleadings
once the trial has commenced. In such a situation, the Court must come to the
conclusion that in spite of due diligence, the party could not have sought such
amendment before commencement of the trial. Due diligence, in this context,
would mean the reasonable level of diligence expected of and exercised by a
prudent man while conducting his affairs. These legal principles are culled out
from the following case law.
In J.SAMUEL V/s. GATTU MAHESH 1, the Supreme Court observed that the Court's
discretion to grant permission to a party to amend his pleadings would be
dependant on two conditions - firstly, no injustice should be done to the other
side and secondly, the amendment must be necessary for the purpose of
determining the real question in controversy between the parties. The Supreme
Court further observed that to balance the interests of the parties in pursuit
of doing justice, the proviso to Order 6 Rule 17 CPC had been added, which
postulated 'due diligence' as a test to determine whether to exercise discretion
in permitting a requested amendment after commencement of the trial.
In ESTRALLA RUBBER V/s. DASS ESTATE (P) LTD 2, the Supreme Court held that delay
in making an application under Order 6 Rule 17 CPC would not, on its own, be a
ground for rejection of the application. The Supreme Court observed that serious
prejudice should be caused to the other side and accrued rights must be taken
away as a result of such amendment for it to be rejected. However, this judgment
was rendered prior to the amendment of Order 6 Rule 17 CPC in the year 2002 and
would therefore have to be construed accordingly.
In ANDHRA BANK V/s. ABN AMRO BANK N.V.3, the Supreme Court reiterated that
delay in itself would not be a ground for rejecting a plea for amendment of the
pleading and that the Court could not go into the merit of the amendment to
decide as to whether such a plea for amendment should be permitted. This case
also did not turn upon the amended proviso to Order 6 Rule 17 CPC.
In STATE OF MADHYA PRADESH V/s. UNION OF INDIA 4 and again in ABDUL REHMAN
V/s. MOHD. RULDU 5, the Supreme Court held that the proviso to Order 6 Rule 17
CPC, to some extent, curtailed the absolute discretion to allow amendment at any
stage and that if the application was filed after commencement of the trial, it
had to be established that in spite of due diligence it could not have been
sought earlier. The main purpose of allowing the amendment, per the Court,
should be to minimize litigation.
In REVAJEETU BUILDERS V/s. NARAYANASWAMY 6, on an analysis of English and
Indian case law, the Supreme Court carved out the following principles which
should weigh with the Court while dealing with an application for amendment:
(1) whether the amendment sought is imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is bonafide or malafide;
(3) the amendment should not cause such prejudice to the other side which cannot
be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple
litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on
the amended claims would be barred by limitation on the date of application.
The Supreme Court however clarified that the above principles were only
illustrative and not exhaustive.
In VIDYABAI V/s. PADMALATHA7, the Supreme Court observed that the proviso to
Order 6 Rule 17 CPC is couched in a mandatory form and therefore, the Court's
jurisdiction to allow an application for amendment is taken away thereunder
unless the conditions precedent therefor are satisfied, viz., it must come to a
conclusion that in spite of due diligence the party could not have raised the
matter before the commencement of the trial. The Supreme Court observed that it
is the primary duty of the Court to decide as to whether such an amendment is
necessary to decide the real dispute between the parties. Only if such a
condition is fulfilled, the amendment is to be allowed. The proviso appended to
Order 6 Rule 17 CPC was held to restrict the power of the Court and placed an
embargo on exercise of its jurisdiction and unless the jurisdictional fact as
envisaged therein is found to exist, the Court would have no jurisdiction at all
to allow the amendment.
In CHANDER KANTA BANSAL V/s. RAJINDER SINGH 8, the Supreme Court, taking note of
the fact that 'due diligence' has not been defined in the CPC, referred to the
dictionary meaning of 'diligence', which is to the effect that it means careful
and persistent application or effort or a continual effort to accomplish
something; care; caution; the attention and care required from a person in a
given situation, and observed that 'due diligence' means the diligence
reasonably expected from and ordinarily exercised by a person who seeks to
satisfy a legal requirement or to discharge an obligation. Reference was also
made to 'Words and Phrases' by Drain-Dyspnea (Permanent Edn. 13-A) wherein 'due
diligence' was defined in law to mean doing everything reasonable and not
everything possible. The Supreme Court therefore concluded that 'due diligence'
would mean reasonable diligence and would mean such diligence as a prudent man
would exercise in the conduct of his own affairs.
The petitioner firm in the present case claimed that the subject amendments
would not change the cause of action pleaded by it in the original claim
petition and that they were only a detailed explanation of and in addition to
the facts already pleaded.
Applying the settled legal principles set out supra, this Court finds that this
was not so. Under the proposed amendments, the petitioner firm sought to
introduce a wholly new foundation for justifying its claim by putting up an
agreement of sale allegedly executed in its favour in respect of the E.P.
schedule property. This agreement of sale was dated about two months prior to
the date of the filing of E.A. 444 of 2005. However, no mention thereof was made
in the original claim petition and the contents thereof indicated a different
basis altogether for the claim under Order 21 Rules 97 and 101 CPC. The case
therein was that the petitioner firm was holding possession of the property on
behalf of R.Vijaya Varma. Now, a new case is put forth that R.Vijaya Varma
executed an agreement of sale on 07.07.2005 through his G.P.A., Alluri Atchuta
Rama Raju, even before the filing of E.A.444 of 2005. The purport of this
amendment is that the petitioner firm now claims entitlement to possession of
the property in its own right and not on behalf of R.Vijaya Varma.
As regards compliance with the requirements of the proviso to Order 6 Rule 17
C.P.C, except for a bald averment that it had no knowledge of Court proceedings
and that despite due diligence all the necessary documents were not placed
before the previous counsel, there is no explanation forthcoming as to why the
agreement of sale allegedly executed just two months prior to the filing of the
claim petition was not even mentioned therein. This Court need say no more as
the merits of this claim are not to be gone into by this Court at this stage.
The inexorable fact however remains that the petitioner firm sought to introduce
a wholly new case through the proposed amendments and despite the completion of
evidence in E.A.No.444 of 2005, it did not choose to put forth any valid reasons
to satisfy the Court below that despite due diligence it could not seek such
amendment prior to the commencement of the trial. The Court below therefore
rightly found that the amendment introduced a totally new case and that there
was no satisfactory explanation as to due diligence having been exercised by the
petitioner firm before the commencement of the trial.
Though Sri K.S.Gopalakrishnan, learned counsel, would argue that allowing of the
applications for reopening of E.A.No.444 of 2005, for recalling of a witness and
for adducing of additional evidence would be rendered pointless in the event
amendment of the claim petition is not allowed, the considerations which would
weigh with the Court below for each of the applications being different, this
Court is not inclined to agree. In so far as the amendment petition was
concerned, the Court below rightly applied settled legal propositions and held
against the petitioner firm. This Court is also not persuaded to agree with the
learned counsel that dismissal of this application would have a negative impact
on O.S.No.42 of 2011 filed for specific performance of the alleged agreement of
sale dated 07.07.2005.
The dismissal of the amendment petition seeking to
introduce details of this agreement of sale in E.A.No.444 of 2005 is not based
on the merits of the amendment sought to be introduced but on the grounds stated
supra, i.e., introduction of a new case and the established lack of due
diligence in terms of the proviso to Order 6 Rule 17 CPC.
It is for the Court
dealing with O.S.No.42 of 2011 to try and adjudicate all the issues arising
therein, including the truth behind the alleged agreement of sale dated
07.07.2005, independently and uninfluenced by any observations made in these
proceedings.
Viewed thus, this Court finds no error or irregularity in the order dated
01.03.2013 passed by the Court below dismissing E.A.No.366 of 2012. CRP No.1646
of 2013 is therefore dismissed. C.R.P.No.4257 of 2012 is also dismissed as it is
not pressed. Pending miscellaneous petitions in both the CRPs shall also stand
dismissed. There shall be no order as to costs.
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SANJAY KUMAR, J.
2nd SEPTEMBER, 2013.
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