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Monday, December 30, 2013

Mortgage suit Or. 34 Rule 11 C.P.C.- Banker's Book Evidence Act - Appeal against preliminary decree after passing final decree - Reduction of suit claim by wrongly rejecting statement of account as per Banker's Book Evidence Act -Court has got jurisdiction to scaled down the interest of Plaintiff's Bank - Bank can maintain appeal over the preliminary decree even after passing of final decree - High court partly allowed the Appeal = State Bank of India Settipalle Branch, Tirupati, Chittoor District, Rep. by its Chief Manager...... Appellant P. Veeranarayana, S/o.P.Veeraswamy Naidu, Hindu, aged about 49 years, Occ: Business, Managing Director o M/s.Siubar Auto Parts Limited, Sattipalle, Tirupati...... Respondent = Published in judis.nic.in/judis_andhra/filename=10295

 Mortgage suit Or. 34 Rule 11 C.P.C.- Banker's Book Evidence Act - Appeal against preliminary decree after passing final decree - Reduction of suit claim by wrongly rejecting statement of account as per Banker's Book Evidence Act -Court has got jurisdiction to scaled down the interest of Plaintiff's Bank - Bank can maintain appeal over the preliminary decree even after passing of final decree - High court partly allowed the Appeal =

Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:

"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...

4. Mode of proof of entries in banker's books.- Subject to the provisions of
this Act, a certified copy of any entry in a banker's book shall, in all legal
proceedings, be received as prima facie evidence of the existence of such entry,
and shall be admitted as evidence of the matters, transactions, and accounts
therein recorded in every case where, and to the same extent as, the original
entry itself is now by law admissible, but not further or otherwise."=

State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower. 
Claiming that the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.
Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.=
After passing of final decree also ,  an Appeal is maintainable over the preliminary decree =

From the above, it would be clear that there is no rebuttal evidence on
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13. 

21.     As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.
Undoubtedly, the Supreme Court in N.M. VEERAPPA's case     
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.

        Point No.2 is accordingly answered against the appellant-bank.


25.     In the result, the decree of the trial Court stands modified as under:

1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.

2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.

3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003. 

The appeal is accordingly allowed in part.

THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR        

APPEAL SUIT No.176 OF 2004    

Dated :04-09-2013

State Bank of India Settipalle Branch, Tirupati, Chittoor District, Rep. by its
Chief Manager...... Appellant

P. Veeranarayana, S/o.P.Veeraswamy Naidu, Hindu, aged about 49 years, Occ:  
Business, Managing Director o M/s.Siubar Auto Parts Limited, Sattipalle,
Tirupati...... Respondent

Counsel for Appellant:  Mr. M. Narender Reddy

Counsel for Respondent:Mr. T.V.L. Narasimha Rao

<GIST   :

>HEAD NOTE :  

?Cases referred :
1. AIR 1967 SC 1236
2. AIR 1999 SC 896
3. (1998) 2 SCC 317


The Court made the following: -

JUDGMENT:  


        State Bank of India, which is plaintiff in O.S.No.25 of 2000 on the file
of the III Additional District Judge, Tirupati, has filed this appeal to the
extent of disallowed claim by the trial Court under judgment dated 22.03.2002.

2.      State Bank of India (for short 'the Bank') filed the aforesaid suit based
on mortgage against the respondent (hereinafter referred to as 'Borrower'),
relating to housing loan of Rs.5.5 lakhs granted to the borrower. 
Claiming that
the borrower is due and liable to pay a sum of Rs.7,12,889.41 ps. together with
interest at 13.77% per annum with quarterly rests from the date of suit
(23.07.2000), the bank filed the aforesaid suit. The said suit had been decreed
by the trial Court for a suit claim of Rs.4,14,337/- and it also granted simple
interest at 12% per annum from the date of suit. Thus, aggrieved by the
disallowed suit claim as well as granting simple interest at 12% per annum as
against the contractual rate claimed in the suit, this appeal is preferred by
the bank.

3.      I have heard Mr. M. Narender Reddy, learned counsel for the bank and Mr.
T.V.L. Narasimha Rao, learned counsel for the borrower. Both the learned counsel
have elaborately made submissions with reference to their respective claim on
the basis of documents,
which primarily comprise of statement of accounts, exhibited in the suit. The
bank as well as the borrower have produced additional documents requesting to
receive them as additional evidence, reference to which would made at an
appropriate place.
4.      Before going into the merits of the claim of the bank in the appeal, it is
necessary to deal with a preliminary objection of maintainability of the appeal
raised by the borrower.

PRELIMINARY OBJECTION:    


5.      Mr. T.V.L. Narasimha Rao, learned counsel for the borrower, contended that
the present appeal is filed against the preliminary decree granted by the trial
Court on 22.03.2002 in the mortgage suit aforesaid. Based on the said
preliminary decree the bank has filed an application for grant of final decree
in I.A.No.1478 of 2002 on 07.10.2002 requesting the trial Court to pass a final
decree in terms of the said preliminary decree on the ground that the redemption
was not availed by the borrower. The said final decree application was allowed
by the trial Court by passing a final decree dated 07.08.2003. Learned counsel,
therefore, states that, in the meanwhile, the bank had filed the present appeal
on 24.06.2002 questioning the preliminary decree and that the filing of the
final decree application and passing of the final decree was never disclosed
while filing the present appeal. Learned counsel also submits that though this
appeal was filed on 24.06.2002, it was retuned with certain office objections on
06.08.2002 but was not represented within time and the application seeking
condonation of delay of 1196 days in representing the appeal in CMP.No.22784 of
2003 was ordered only on 07.01.2004 and it is only thereafter the appeal was
numbered and admitted on 28.06.2004 and only thereafter notice in this appeal
was served on the borrower.

6.      Learned counsel for the borrower, therefore, submits that having accepted
the preliminary decree, which is impugned herein and having sought a final
decree to be passed in pursuance thereafter and having secured a final decree as
early as on 07.08.2003, the bank is estopped from pursuing this appeal against
the preliminary decree,
as it cannot be allowed to blow hot and cold. Learned counsel, further, submits
that the filing and prosecution of this appeal by the bank is also not bonafide,
as they never disclosed filing of this appeal in the application filed by them
for final decree. Thus, in view of passing of the final decree, the preliminary
decree merges in the later decree and on that ground also the present appeal is
not maintainable.

7.      Mr. M. Narender Reddy, learned counsel for the bank, submits that there is
no impediment for maintainability of the present appeal inasmuch as this appeal
was presented on 24.06.2002 long before the final decree application was filed.
Learned counsel submits that,
no doubt, there was delay in representing the appeal when the office raised
objections but since the said delay was condoned, the time for representation
stands extended and thereafter, the appeal has been duly numbered and admitted.
Learned counsel submits that even though the bank is aggrieved to the extent
disallowing of its suit claim in entirety, while passing the preliminary decree,
to the extent of the decreed suit claim there was no impediment for the bank in
seeking final decree. Learned counsel also submits that if the bank waited for
the result of this appeal, it could not have recovered even the suit claim
covered by the preliminary decree and there was no reason,
in law, disabling the bank from seeking final decree on the basis of preliminary
decree pending appeal against the preliminary decree.  Learned counsel relied
upon a decision of the Supreme Court in
SITAL PERSHAD v. KISHORI LAL1 which has considered similar question and held  
that, in such circumstances, the appeal is maintainable.

8.      In order to decide the said preliminary objection, it would be appropriate
to notice the relevant facts in the aforesaid decision.
The appellant before the Supreme Court suffered a preliminary decree in a
mortgage suit. However, the interest, as claimed by the respondent, was not
decreed and to that extent, the respondent had filed an appeal before the High
Court. Meanwhile, the respondent applied for passing of final decree, which
application was allowed and thereafter, the respondent took out the execution of
the said final decree. Meanwhile, the appeal filed by the respondent to the
extent of disallowed claim, was allowed by the High Court. Based on the said
subsequent event, the appellant objected to the execution of final decree
earlier passed in view of subsequent modification of preliminary decree. The
executing Court, however, rejected the said objection and out of that the matter
reached the Supreme Court. The Supreme Court held at para 5 as under: 

The question before us in the present appeal therefore is which of these two
views is correct. Before we consider this question   we may state certain well-
settled propositions with respect to preliminary and final decrees in mortgage
suits and the effect of an appellate decree in general on the decree of the
trial court. Generally speaking, the decree of the appellate court supersedes
the decree of the trial court even when it confirms that decree and therefore it
is well-settled that only the appellate court can amend the decree thereafter:
[see Muhammad Sulaiman Khan v. Muhammad Yar Khan (1888) ILR All 267 (FB)]. It is    
equally well-settled that where an appeal has been taken from a preliminary
mortgage decree and is decided, the time for preparation of final decree is
three years from the date of the appellate decree even though the appellate
court may not have extended the time for payment provided in the        preliminary
decree, where no final decree has been prepared in between :    see Jowad 
Hussain v. Gendan Singh, 53 Ind App 197 : (AIR 1926 PC 93). This applies even to
a case where the decree of the appellate court is made more than three years
after the time fixed for payment in the preliminary decree :
[see Fitzholmes v.
Bank of Upper India, 54 Ind App 52 : (AIR 1927 PC 25). Further it is well-
settled that the mere fact      that there is an appeal from a preliminary decree
does not oust the jurisdiction of the trial court to prepare a final decree even
while the appeal is pending unless there is a stay order :
[see Sat Prakash v.
Bahal Rai ILR 53 All 282 : (AIR 1931 All 386 (FB)]. Even if a final decree has
been passed an appeal from a preliminary decree is not incompetent and it is not
necessary for a party to appeal both from the preliminary decree and the final
decree in order to maintain his appeal against the preliminary decree.
In such a case where the preliminary decree is set aside the final decree is
superseded whether the appeal is brought before or after the passing of the
final decree :
[see Talebali v. Abdul Aziz, ILR 57 Cal 1013 : (AIR 1929 Cal 689
(FB)]. Further it was observed in the last case that where an appellate court
sets aside or varies a preliminary decree it can, and indeed could, give
        direction for the setting aside or varying of the final decree, if the
existence of the final decree is brought to its notice as in all cases it ought
to be."

[Emphasis supplied]

        The legal position, therefore, is conclusively answered by the aforesaid
passage, particularly, the emphasized portion and in view of that the
preliminary objection raised by the learned counsel for the borrower is liable
to be rejected and is accordingly rejected.

9.      The brief facts of the case are as follows:

        (a) As stated above, the bank had sanctioned a housing loan for Rs.7 lakhs
to the borrower but the actual amount disbursed was
Rs.5.5 lakhs. The said amount was repayable in 168 monthly installments at
equated monthly installments (EMI) of Rs.7,150/- per month with effect from
31.03.1996. It is pleaded in the plaint that to secure such loan with interest
at 17.25% with quarterly rests, agreed upon, the borrower created an equitable
mortgage by deposit of title deeds. As per the terms of the loan, when the
outstanding against loan was not paid in spite of repeated demands, a legal
notice, Ex.A7 dated 16.06.2000, was issued and served on the borrower under
acknowledgment, Ex.A8 and thereafter, the present suit was filed on 23.07.2000.

        (b) The borrower filed a written statement denying the suit claim and
disputed the amount claimed, as outstanding. It was also stated that the EMI's
were paid by the borrower and recovered and
in fact, from October 1998 onwards the borrower paid ad hoc amounts of
Rs.14,000/- per month to clear off the loan at an early date.
It is also stated that though the legal notice was replied under reply dated
03.07.2000, the suit is filed without referring thereto.
The borrower had also claimed that he had paid excess amount on Rs.1.04 lakhs,
as such, the suit claim is not tenable and there is no cause of action for the
suit.

10.     On the aforesaid pleadings, the trial Court framed the following issues:
1. Whether the defendant availed loan of Rs.5,50,000/- from the plaintiff bank
and agreed to pay the amount in 180 equal monthly installments and executed term
loan agreement on 31.3.95 and a letter dt.31.3.95?

2. Whether the defendant deposited title deed and created an equitable mortgage
and executed From A letter of deposit of title deed on 3.4.95 in favour of
Plaintiff Bank?

3. Whether the defendant executed a revival letter on 28.1.98 acknowledging his
liability and whether the suit is within limitation?

4. Whether the defendant paid the amount to the plaintiff as per the E.M.I fixed
by the Plaintiff?

5. To what relief?

11.     On behalf of the bank, P.W.1, Assistant Manager of the Bank was examined
whereas the borrower examined himself as D.W.1.
On behalf of the bank, the loan documents were marked as Exs.A1 to A13 whereas
no documentary evidence is produced and marked on behalf of the borrower.

12.     While answering issues 1, 2 and 3 in favour of the bank,
the trial Court has recasted issue No.4. The trial Court, however,
did not accept the entries shown in Exs.A6 and A13, which are certified copies
of loan ledger extract and extract of arrears of account respectively and found
that Rs.2,74,051.97 ps. has been wrongly not given credit to and consequently,
reduced the suit claim to Rs.4,14,337.44 ps. and granted simple interest at 12%
per annum on the said amount. Thus, the bank is, in appeal, aggrieved by order
of the trial Court disallowing part of the suit claim and denying the
contractual rate of interest.

13.     Based on the aforesaid, the points for consideration in the appeal are:

1. Whether the finding of the trial Court in not accepting Exs.A6 and A13 is
justified?

2. Whether denying contractual rate of interest in a suit for mortgage is
justified?

14.     Before answering the questions, as above, it is necessary to deal with
ASMP.No.1685 of 2013, filed by the borrower, requesting this Court to receive
the Recalculated Housing Loan Account Statement; Recast Notional Housing Loan  
Arrears Account and Letter dated 23.04.2013, as additional evidence. The
documents filed along with the said application and letter received by the
borrower under the Right to Information Act, are, therefore, sought to be filed
as additional evidence.  So far as the account statement calculated by the
borrower is concerned, apparently, it is a self-serving document,
for the statement is signed by the borrower and his counsel. In law, therefore,
such self-serving calculation sheet, as against the claim of the bank based on
certified account statement cannot be sustained.  The said statement of accounts
described as recalculated housing loan account statement and recast notional
housing loan arrears account have no evidentiary value and cannot be received in
evidence.
Further, the letter of the bank issued to the borrower counsel under RTI Act
merely gives details of loan disbursed date-wise and the payment made by the
borrower date-wise are of no assistance, as all those aspects are not in
controversy. I am, therefore, not inclined to order the said application and the
same is accordingly dismissed.

15.     Similarly, the appellant-bank had filed ASMP.No.2343 of 2004 requesting
the Court to receive the consolidated statement of account as additional
evidence. It is stated that the said consolidated statement is prepared merging
Exs.A6 and A13 and the said statement is signed by the Chief Manager of the
Bank.  Firstly, the said document is prepared by, allegedly, consolidating
Exs.A6 and A13 and as such, the said document is not a statement of account
maintained by the bank in usual course of business nor the said document is
certified as required under Section 3 of the Banker's Books Evidence Act and as
such, the said document is also not admissible. The miscellaneous petition is
accordingly rejected.

POINT No.1:


16.     A look at the pleadings of the parties would show that there is no
controversy with regard to raising of the loan, its quantum, equitable mortgage
and the terms and conditions of the said loan.  Ex.A12 filed on behalf of the
bank contains the terms and conditions of the said loan dated 22.05.1995 and
under Ex.A5, admittedly,
the borrower has given letter of revival of the said loan on 21.01.1998.
Further, the said claim is based on Ex.A6, ledger extract and Ex.A13, copies of
arrears account. I have seen the original documents, both of which have been
certified as required under the Bankers Book of Evidence Act. In the absence of
any rebuttal evidence, therefore,
a statutory presumption arises in support of the said two documents with respect
to the correctness of entries therein.

17.     Learned counsel for the respondent, however, disputed the very document
Ex.A13 by contending that the said document was not referred to in the pleadings
nor filed along with plaint but has been filed subsequently when P.W.1 was being
examined. According to the learned counsel, there cannot be two separate
accounts maintained by the bank and according to him, Ex.A6 alone reflects the
true accounts position and no reliance can be placed on Ex.A13.

18.     Learned counsel for the bank, however, submits that both the said accounts
are required to be maintained by the bank as per instructions of the Reserve
Bank of India and for every loan account, the arrears account and the ledger
account are separately maintained and he submits that though the plaint, by
mistake, does not refer to Ex.A13, that by itself is no ground to reject the
said document.

19.     It is not in dispute that the suit claim of the bank is based upon Exs.A6
and A13 and P.W.1 states in his evidence that 'Each loan account of our bank
will be maintained under two separate heads,
for the convenience of computer processing. Under the first head all the
disbursements made to the borrower by the Bank will be shown.
In the other head, amounts due by the borrower, monthly installments due and
interest accrued thereon will be shown ... The amount shown under Ex.A13 is
reflected under Ex.A6 already. In Ex.A6 the schedule repayable amounts are only
shown by way of installment. But they are not actual payments, made by the
defendant. In Ex.A6, the actual amount due on 23.07.2000 (date of suit) is
shown. Subsequent to, the filing of the suit defendant paid an amount of
Rs.24,500/- in two installments and plaintiff has no objection for deducting
that amount from the suit amount". A suggestion given to P.W.1 may also be
noticed, which says, "It is not true to say that Ex.A13 does not reflect true
facts as we have not produced the original ledgers before the Court." In this
context, defendant, D.W.1, states in cross-examination dated 17.04.2011 as
follows: "The payment made by me mentioned in the ledger, are correct. A6 is the
ledger extract". Regarding Ex.A3, however, he did not make any statement.

20.     Sections 2(3) and 4 of the Banker's Book Evidence Act provides as follows:

"2(3). "banker's books" include ledgers, day-books, cash-books, account-books,
and all other records used in the ordinary business of a bank, whether these
record are kept in the written form or stored in a micro film, magnetic tape or
in any other form of mechanical or electronic date retrieval mechanism, either
onsite or at any offsite location including a back-up or disaster recovery site
of both"
...

4. Mode of proof of entries in banker's books.- Subject to the provisions of
this Act, a certified copy of any entry in a banker's book shall, in all legal
proceedings, be received as prima facie evidence of the existence of such entry,
and shall be admitted as evidence of the matters, transactions, and accounts
therein recorded in every case where, and to the same extent as, the original
entry itself is now by law admissible, but not further or otherwise."

        From the above, it would be clear that there is no rebuttal evidence on
behalf of the borrower to rebut the statutory presumption of correctness
attached to Exs.A6 and A13. 

21.     As noted above, both Exs.A6 and A13 are certified as required under the
aforesaid provision. I, therefore, see no impediment to accept the outstanding
amount shown thereunder as correct. The trial Court, therefore, was not
justified in reducing the suit claim than what is mentioned in the said
document. The finding of the trial Court on the said issue No.4 reducing the
suit claim of the bank is, therefore, liable to be set aside and is accordingly
set aside. It is, however, to be noted, as per P.W.1's statement extracted
above, that a sum of Rs.24,500/- paid by the defendant subsequent to Ex.A6 is
required to be given credit to in the suit claim. Hence, in modification of the
decree of the trial Court, the suit claim shall stand decreed for
Rs.7,12,889.41/- - Rs.24,500/- = Rs.6,88,389.41/-.

        Point No.1 is accordingly answered in favour of the appellant.


Point No.2:


22.     With regard to the claim for interest by the bank, as per the contractual
rate, as claimed in the suit is concerned, Mr. M. Narender Reddy, learned
counsel for the bank, placed reliance upon a decision of the Supreme Court in
STATE BANK OF INDIA v. YASANGI VENKATESWARA RAO2 and it is contended that          
entering into a mortgage is a matter of contract between the parties and if the
parties agree that in respect of the amount advanced against a mortgage compound
interest will be paid, the Court cannot interfere and reduce the amount of
interest agreed to be paid on the loan so taken.  Learned counsel, therefore,
submits that considering Section 21-A of the Banking Regulation Act, the Supreme
Court held that charging compound interest as per the agreement cannot be said
to be excessive and cannot be reduced.

23.     Per contra, learned counsel for the borrower placed strong reliance upon a
decision of the Supreme Court in N.M. VEERAPPA V. CANARA BANK3,  which held        
that the Court has discretion under Order 34 Rule 11 of the Code of Civil
Procedure, 1908, to order payment of interest at a rate lower than the
contractual rate.
The provisions of Section 21-A of the Banking Regulation Act were also
considered in the aforesaid decision but it was held that the said provision
does not intend to override CPC and particularly, Order 34 Rule 11 CPC.  Hence,
the power of the civil Court to reduce the rate of interest from the date of
suit is not affected. 
In furtherance of the said proposition, the learned
counsel submits that the borrower has been bonafide and he had paid EMI's
regularly from 01.04.1996 to 01.05.2000, as admitted by P.W.1. In addition, the
borrower paid Rs.1,28,900/- between 20.10.1997 and 04.05.2000 and in addition
thereto, further sum of Rs.24,500/- was paid after filing of the suit.
All this, therefore, shows that the borrower has been fair while dealing with
the bank but the appellant-bank has not been equally fair to the borrower.
Learned counsel, therefore, submits that the trial Court exercised discretion
under Order 34 Rule 11 CPC and granted simple interest at 12%. He, therefore,
urges that this Court would not interfere with that part of the discretion
exercised by the trial Court looking at the bonafides of the borrower.

24.     Undoubtedly, the Supreme Court in N.M. VEERAPPA's case    
(3 supra) categorically held that the civil Court has discretion under Order 34
Rule 11 CPC to reduce the rate of interest depending on the facts and
circumstances of each case. The circumstances, as pointed out by the learned
counsel for the borrower, being not in dispute,
I am not inclined to interfere with the discretion exercised by the trial Court
and as such, the interest at 12% granted by the trial Court is affirmed.

        Point No.2 is accordingly answered against the appellant-bank.


25.     In the result, the decree of the trial Court stands modified as under:

1. The suit claim of Rs.6,88,389.41 ps. shall carry simple interest at 12% from
the date of suit till realization.

2. The appellant - bank shall also give due credit to the amounts, if any, paid
by the borrower subsequent to the final decree dated 07.08.2003.

3. The trial Court is directed to pass a fresh final decree in terms of this
decree and such final decree to be passed by the trial Court would stand
substituted for the final decree passed by the trial Court in I.A.No.1478 of
2002 dated 07.08.2003. 

The appeal is accordingly allowed in part. As a sequel,
the miscellaneous applications, if any, shall stand dismissed.
There shall be no order as to costs.
____________________  
VILAS V. AFZULPURKR, J  
September 4, 2013

Rent control case - Eviction petition not maintainable in the absence of land-lord and tenant relationship - Rent control case is filed with out having any registered sale deed for eviction - with out permission of original owner , no rent control case is to be filed - Appellate court found the dispute about the title raised by tenant is a bonafide - Rent control court has no jurisdiction to decided the title except whether the denial of title is bonafide or not - Revision court has no jurisdiction to reassess the entire evidence done by appellant court in the absence of blatant mistakes under sec.22 of Act - High court dismissed the revision = Vanumu Kondamma (died) per LRs.... petitioners Polavarapu Simhachalam... Respondent = Published in judis.nic.in/judis_andhra/filename=10293

Rent control case - Eviction petition not maintainable in the absence of land-lord and tenant relationship - Rent control case is filed with out having any registered sale deed  for eviction - with out permission of original owner , no rent control case is to be filed - Appellate court found the dispute about the title raised by tenant is a bonafide - Rent control court has no jurisdiction to decided the title except whether the denial of title is bonafide or not - Revision court has no jurisdiction to reassess the entire evidence done by appellant court in the absence of blatant mistakes under sec.22 of Act - High court dismissed the revision =
The respondents-tenants filed counter in all the rent control cases taking
the same plea and denying that the 1st revision petitioner is the owner of the
petition schedule property.  They also denied that they took lease of the
property from the husband of the 1st revision petitioner.  
It is also contended
by the respondents that the property originally belongs to Kesanapalli Narasinga
Rao, who is the absolute owner of the property, from whom, the father of
respondent-tenants directly took lease of the property.  
They have also denied
that the 1st revision petitioner's husband purchased the property.  The
respondents-tenants also stated that the husband of the 1st revision petitioner
used to collect the ground rent as agent of Kesanapalli Narasinga Rao from all
the tenants under single receipt.  
It is also contended that the requirement of
the premises for personal occupation of the revision petitioners is not bona
fide.  It is also stated by the respondents-tenants that the Rent Control Court
has no jurisdiction with respect to vacant land since the respondents-tenants
have taken the land from Kesanapalli Narasinga Rao.  Hence, sought for dismissal
of the eviction petitions. =

 The Appellate Authority found
that since there is no registered sale deed in favour of the 1st revision
petitioner by her husband, she failed to prove her title to the petition
schedule property.  The Appellate Authority found that Ex.B.16, which is true
copy of the property tax demand register issued by the Municipal Corporation
shows that the house bearing D.No.26-14-4 with old Assessment No.8034 stands in  
the name of Kesanapalli Narasinga Rao.  The Appellate Authority basing on
Exs.A.11 and B.16, held that denial of title by the respondents-tenants is bona
fide. 
By relying on the evidence, the Appellate Court, which is final fact finding
Court, held that the denial of title and landlord and tenant relationship by the
respondents-tenants to be bona fide one.  
I cannot re-appreciate the same within
the revisional jurisdiction under Section 22 of the Act in view of the judgments
discussed above.  More so, the Rent Control Court cannot decide the title, only
it can find out whether the denial is bona fide or not.  It is not as if the 1st
revision petitioner is not without any remedy to evict the respondents, but he
has to approach the civil court and establish his title for evicting the
respondents-tenants.  
The jurisdiction of authorities under the Rent Controller
is limited to find out whether the denial of title of landlord by the
respondents-tenants is bona fide or not, they cannot make a roving enquiry of
the title aspect.

In view of the above facts and circumstances, I am of the opinion that there is
no error committed by the Appellate Authority in allowing the appeals of the
respondents-tenants.

 Accordingly, all the civil revision petitions are dismissed. There shall be no
order as to costs.


THE HONOURABLE SRI JUSTICE A.RAJASHEKER REDDY            

CIVIL REVISION PETITION Nos.5660 of 2006 and batch  

dated:04-09-2013

Vanumu Kondamma (died) per LRs.... petitioners

Polavarapu Simhachalam... Respondent  

Counsel for the petitioners:Smt. P.Anjana Devi Satyanarayana

Counsel  for the Respondent:  Sri G.Ram Gopal


<Gist :

>Head Note:

?Cases referred:

1. 2003(6) ALD 84
2. AIR 1987 SC 2028
3. AIR 2002 SC 67
4. 1994) 4 SCC 422
5. 2008(4) ALT 96
6. 1996(3) ALD 650
7. 2004(6) ALD 161
8. 2002) 3 SCC 626
9. 2005(4) ALD 45
10. 2012(1) ALT 470
11. 2010(1) ALT 363
12. 1998(1) ALD 224
13. 1995(2) ALT 61
14. 2008(4) ALD 586
15. 2002(1) SCC 176

HON'BLE SRI JUSTICE A.RAJASHEKER REDDY        

CIVIL REVISION PETITION Nos.5660 of 2006,  
2453 /2007, 2428 /2008, 3661 /2008, 925 /2008,
924 /2008, 474 /2007, 1162 /2007, 1180 /2007,
1277 /2007, 1294 /2007, 1296 /2007

COMMON  ORDER:    

        All these civil revision petitions are disposed of by this common order,
since the issue involved in these cases is common, the landlord is the same in
all the cases and all the premises form part of one property.
       
        The facts of the case, which are necessary for disposal of these revision
petitions, are as follows:
        The revision petitioner No.1 filed rent control cases against the
respondents-tenants stating that she is the owner of the petition schedule
property bearing D.No.26-14-4/1 to 26-14-4/14.  It is her case that her husband
originally took lease of site from Smt.K.Annapurnamma, wife of Kalidas in the
year 1954.  Thereafter, he constructed two rows of buildings.  Later after some
time, the husband of the 1st revision petitioner purchased the property for
Rs.1,600/- under a registered sale deed.  Thus, the husband of the 1st revision
petitioner became the owner, and after his death, the 1st revision petitioner
became the owner of the property.  The 1st revision petitioner is collecting
rents from the respondents-tenants, the rent is stated to be Rs.100/- per month.
The revision petitioners 2 and 3 were added as legal representatives, since the
1st revision petitioner died after disposal of the R.C.As. by the Appellate
Authority.

        It is the case of the revision petitioners that the respondents-tenants
paid rents upto November, 1993.  
The 1st revision petitioner demanded the
respondents-tenants to vacate the premises in November, 1993 for her personal
occupation, then the respondents-tenants stopped paying rents and filed
O.S.No.1314 of 1993 on the file of the IV Additional Junior Civil Judge,
Visakhapatnam for permanent injunction restraining the revision petitioners from
evicting the tenants except under due process of law.  
It is also stated that
the 1st revision petitioner is having two daughters who are residing elsewhere
and she required the premises for her accommodation and also for her daughters.
Hence, sought for eviction of the respondents herein-tenants.

        The respondents-tenants filed counter in all the rent control cases taking
the same plea and denying that the 1st revision petitioner is the owner of the
petition schedule property.  They also denied that they took lease of the
property from the husband of the 1st revision petitioner.  It is also contended
by the respondents that the property originally belongs to Kesanapalli Narasinga
Rao, who is the absolute owner of the property, from whom, the father of
respondent-tenants directly took lease of the property.  They have also denied
that the 1st revision petitioner's husband purchased the property.  The
respondents-tenants also stated that the husband of the 1st revision petitioner
used to collect the ground rent as agent of Kesanapalli Narasinga Rao from all
the tenants under single receipt.  It is also contended that the requirement of
the premises for personal occupation of the revision petitioners is not bona
fide.  It is also stated by the respondents-tenants that the Rent Control Court
has no jurisdiction with respect to vacant land since the respondents-tenants
have taken the land from Kesanapalli Narasinga Rao.  Hence, sought for dismissal
of the eviction petitions.

        In all the rent control cases, the case of the revision petitioners and
the respondents-tenants is the same and the points framed by the Rent Controller
are also same, the evidence is almost same in all the rent control cases.
Basing on the pleadings, the Rent Controller framed the following points for
consideration:-
1) Whether there is landlord and tenant relationship between the 1st revision
petitioner and respondents-tenants ?
2) Whether the denial of title of the 1st revision petitioner herein over the
schedule property in the rent control cases by the respondents-tenants is bona
fide ?

Basing on the oral and documentary evidence, the Rent Controller allowed all
eviction petitions.  Against the same, the respondents-tenants filed appeals
before the Appellate Authority.  The Appellate Authority also framed the same
points as framed by the Rent Controller and allowed the appeals filed by the
respondents-tenants by setting aside the eviction order and held that the denial
of title by the respondents-tenants is bona fide and also held that landlord and
tenant relationship between the 1st revision petitioner and the respondents-
tenants is not proved.  Challenging the same, the revision petitioners filed the
present revision petitions.

Learned counsel for the revision petitioners, Smt.P.Anjana Devi Satyanarayana,
contended that the respondents-tenants themselves admitted that they were paying
rents to the husband of the 1st revision petitioner from 1955 onwards, and
thereafter to 1st revision petitioner, as such, as per the definition of the
'landlord', a person receiving the rent is also the landlord under Section 2(vi)
of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short
'the Act').  She also contended that the oral evidence of P.Ws.1 and 2 and
Exs.A.1 to A.12, which includes special notices issued by Visakhapatnam
Municipal Corporation, in the name of husband of the 1st revision petitioner
Vanumu Sanyasi and the revision preferred by late Sanyasi and tax passbook, and
all these documents establish that since the year 1955 Vanumu Sanyasi has paid
taxes to the petition schedule property, which goes to show that the husband of
the 1st revision petitioner is having title and after his death, 1st revision
petitioner is the owner.  She also contended that person receiving rent can
maintain eviction petition, as he is landlord within the meaning of Section
2(vi) of the Act.  She placed reliance on the judgments in V.Padmavattamma v.
Pala Rathnam1 and Smt. Shanti Sharma and others v. Smt. Ved Prabha and others2.  
She also contended that a person need not necessarily be the owner, in a vast
majority of cases an owner will be a landlord but in many cases a person other
than an owner may as well be a landlord, it may be that in a given case the
landlord is also an owner but a landlord under the Act need not be the owner.
She placed reliance on the judgment in K.D.Dewan v. Harbhajan S. Parihar3.  She
also contended that earlier CRPs filed are not decided on merits, hence the plea
of res judicata is not applicable and the present CRPs are not hit by principles
of res judicata as earlier CRPs are filed in the name of the 1st revision
petitioner, inadvertently as she passed away at that time.  She placed reliance
on the judgments in Krishan Lal v. State of J & K4 and Mothukuri Ranga Rao and
another V. Royyala Laxminarayana and others5.  She also contended that the Rent
Controller cannot go into the title but only jural relationship can be examined
by the Rent Controller.  She also contended that the judgment relied on by the
Appellate Authority in Vasant Rao Ankilkar v. Nalini Bai Joshi6, wherein it is
held that the person receiving the rent cannot maintain eviction petition
without the consent of the landlord and the same is not applicable since the 1st
revision petitioner has filed the eviction petition on the ground that she is
the landlord.  She also contended that the judgment cited by the learned counsel
for the respondents-tenants in S.Saraswathi v. Y.Laxminarayana7 is in favour of
the revision petitioners.  She also contended that the case of the revision
petitioners falls within the scope of revisional jurisdiction, since the
interpretation of definition of landlord is the issue in the present cases.  She
also contended that the Appellate Authority misread the evidence and came to
wrong conclusion by holding that dispute raised by respondents-tenants is bona
fide.  She also contended that this Court can allow the revision petitions
within the scope of revisional jurisdiction as held by the Supreme Court in
Harshavardhan Chokkani v. Bhupendra N. Patel and others8.  She also contended
that tenants have claimed that they have taken the site from Kesanapalli
Narasinga Rao on lease and constructed the premises, but the said Kesanapalli
Narasinga Rao as 1st defendant filed written statement in O.S.No.1314 of 1993
filed by the respondents-tenants for injunction, stating that he does not know
the respondents-tenants and that they have not taken the petition schedule
property on lease from him, which is marked as Ex.A.11 in all the rent control
cases, Kesanapalli Narasinga Rao has not supported the case of the respondents-
tenants, which goes to show that the claim made by the respondents-tenants is
false.  She also contended that the respondents-tenants admitted that husband of
the 1st revision petitioner as well as the 1st revision petitioner was receiving
rents, but they failed to prove that as they are receiving rents on behalf of
Kesanapalli Narasinga Rao, as such, they go to show that there is landlord and
tenant relationship.  She also contended that in view of Exs.A.1 to A.12, the
title of the 1st revision petitioner is proved.  She also contended that Ex.B.16
is copy of alleged assessment extract in respect of No.2216 in the name of
K.Narasinga Rao, but the author of the said document is not examined, and as
such, it cannot be given any credence.  She also contended that assessment
number from the tax passbook marked as Ex.A.9 is 2218, whereas in Ex.B.16, it
shows as 2216 and the assessment number is not tallying.  She also contended
that if K.Narasinga Rao was the owner and he has not filed any rent control case
or suit against the 1st revision petitioner during her lifetime or subsequent to
her death.  She further contended that the said K.Narasinga Rao has not filed
any petition to implead him as a party in RCCs or RCAs or in these CRPs, but no
prudent landlord would wait 30 years without taking steps for eviction of the
tenant on the ground of willful default in payment of rents.  She also contended
that as per the respondents-tenants, K.Narasinga Rao, from whom they have taken
the lease, is said to be aged 40 to 45 years by the time evidence was adduced in
RCC No.348 of 1995, since the respondents-tenants contended that they have taken
on lease from K.Narasinga Rao in 1955 i.e., about 42 years back from the date of
evidence, as such, the age of said K.Narasinga Rao would be 2 or 3 years by the
time of taking the land on lease, which cannot be believed.  She further
contended that in the judgment cited by the learned counsel for the respondents-
tenants in Rajendra Prasad v. Narsing Prasad and another9, wherein it is held
that no roving enquiry can be made by the Rent Controller in regard to the title
of premises, and the said decision is in favour of the revision petitioners.
She further contended that the same was observed by the Rent Controller in the
present case.  She also contended that the decision relied on by the learned
counsel for the respondents-tenants in M.Sarojini Devi (died) per L.Rs. v. Jugal
Kishore Sanghi10 has no application to the facts of the present case, since the
landlord in that case has collected rents on behalf of Dharmasala earlier and
the tenant claimed title.  She further contended that in the judgment cited by
the learned counsel for the respondents-tenants in Avulapalle Mallikarjuna and
others v. N.T.Chengalarayappa11, wherein the tenant never paid rents to the
alleged landlord and the tenant claiming title and hence there is no landlord
and tenant relationship in that case and the same decision is not applicable to
the facts of the present case.

On the other hand, the learned counsel for the respondents-tenants Sri
G.Ramgopal in all the petitions contended that the respondents-tenants have
taken the open site on lease from K.Narasinga Rao and constructed the petition
schedule property, the husband of the 1st revision petitioner used to collect
ground rent, and after his death, the 1st revision petitioner has been
collecting rents on behalf of K.Narasinga Rao.  He further contended that the
revision petitioners failed to substantiate that there is landlord and tenant
relationship between the revision petitioners and the respondents-tenants and no
independent witness is examined and no document is filed to that effect.  He
also contended that the Rent Controller in para-16 of the order by referring to
Exs.A.1 to A.12, observed that though none of the said documents establishes the
title of revision petitioner or her husband to the suit schedule premises, but
basing on the assessments relating to Municipal taxes and further referring to
Ex.A.11 filed by K.Narasinga Rao in O.S.No.1314 of 1993, proceeded to pass order
of eviction of the tenants by observing that denial of either the relationship
of landlord and tenant or the ownership of schedule property is not bona fide.
He also contended that earlier revision petitions were dismissed, as such, the
present CRPs are hit by principles of res judicata.  He also contended that when
there is bona fide title dispute, the Rent Controller cannot pass order of the
eviction and the person claiming title has to approach civil court.  He also
contended that the respondents only stated that the husband of the 1st revision
petitioner used to collect rents on behalf of K.Narsinga Rao and without
permission of the landlord, they cannot maintain eviction petition.  He placed
reliance on the judgment in Vasant Rao Ankilkar case (6 supra).  He also
contended that whenever the landlord establishes title and the tenant fails to
prove the title pleaded by him, such a person cannot be construed to be a tenant
under the landlord.  He placed reliance on the judgment in Kedar Bhatia v.
Lingarkar Panduranga Rao and others12.  He also contended that when the title of
the 1st revision petitioner is denied, it is for the revision petitioners to
prove the title, but in the present case, the Rent Controller himself observed
that the revision petitioners could not prove the title, as such, denial of the
title by the respondents become bona fide.  He also relied on the judgment in
K.P.Janakiram v. K.Suguna Bai13.  He further contended that the jurisdiction of
Rent Controller is limited to decide whether denial of title or claim made by
tenant is bona fide, it cannot decide existence of title with finality.  He
placed reliance on the judgments in Rajendra Prasad case (9 supra), S.Saraswathi
case (7 supra) and M.Sarojini Devi case (10 supra).  He also contended that
every person in possession of premises, even without title; cannot become a
tenant automatically, of any one, including that of the rightful owner, while
possession can come into existence with unilateral acts of parties, a tenancy is
the one, which would emerge only with the consent of parties.  He further
contended that unless tenancy is established, there is no basis to eviction
order.  He relied on the judgment in Avulapalle Mallikarjuna case (11 supra).
Finally, he contended that scope of revisional jurisdiction is limited and this
Court while exercising revisional jurisdiction under Section 22 of the Act
cannot re-appreciate the evidence and the revisional jurisdiction under Section
22 of the Act cannot be equated with the powers of the appellate court.  He
further contended that in examining the legality and propriety of the order
under challenge, what is required to be seen by the High Court is whether it is
in violation of any statutory provision or a binding precedent or suffers from
misreading of the evidence or omission to consider relevant clinching evidence
or where the interference drawn from the facts proved is such that no reasonable
person could arrive at or the like, and it is only in such situations that
interference by the High Court in revision in a finding of fact will be
justified and mere possibility of a different view is no ground to interfere in
exercise of revisional power.  He relied on the judgments in Mohammed Abdul
Rahman and others v. B.Manorama and another14, Harshavardhan Chokkani case (8  
supra) and N.Prabhakar Rao v. J.R.Ramesh Kumar alias Rameshji15.  He also  
contended that the person receiving the rent can maintain eviction petition only
with the permission of the landlord.  He also relied on the judgment in Vasant
Rao Ankilkar case (6 supra).

In view of the rival contentions, it is to be seen that whether the order of
eviction passed by the Rent Controller is right, whether the Appellate Authority
is justified in setting aside the order of eviction passed by the Rent
Controller.

In this case, the Rent Controller found that denial of title by the respondents-
tenant is not bona fide.  The Rent Controller also observed that the 1st
revision petitioner failed to establish her title.  But basing on some documents
regarding assessment of municipal taxes and also relying on Ex.A.11 written
statement filed by K.Narasinga Rao in O.S.No.1314 of 1993, held that the tenants
paid rents to the husband of the 1st revision petitioner and also to the
revision petitioners after her death.  The Rent Controller has not gone into the
aspect of willful default or bona fide requirement of the 1st revision
petitioner, as it found the denial of ownership and denial of landlord and
tenant relationship were not bona fide.  On the other hand, the appellate
authority after scrutinizing the evidence of P.Ws.1 & 2 and Exs.A.1 to A.12 came
to the conclusion that the assessment numbers and house numbers are not tallying 
with the petition schedule property.  As such, held that 1st revision petitioner
could not prove the title or landlord and tenant relationship.  The Appellate
Authority also found that the revision petitioner could not maintain the
eviction petition without the consent of the landlord.  The Appellate Authority
also has not believed the version of the 1st revision petitioner that she has
proved that she is the owner of the property.  The Appellate Authority found
that since there is no registered sale deed in favour of the 1st revision
petitioner by her husband, she failed to prove her title to the petition
schedule property.  The Appellate Authority found that Ex.B.16, which is true
copy of the property tax demand register issued by the Municipal Corporation
shows that the house bearing D.No.26-14-4 with old Assessment No.8034 stands in  
the name of Kesanapalli Narasinga Rao.  The Appellate Authority basing on
Exs.A.11 and B.16, held that denial of title by the respondents-tenants is bona
fide.  The Appellate Authority also relied on the evidence of P.W.2 and came to
the conclusion that she was unable to show anything about the affairs of the
petition schedule property.  The Appellate Authority also found that non-failure
of respondents to prove their title cannot improve the case of the revision
petitioners, since the 1st revision petitioner has to independently establish
the title to the suit schedule property.

In K.D.Dewan (3 supra), it is held that a person must be a landlord within the
meaning of the terms in Section 2(c) his being owner of the premises is neither
a pre-requisite nor a relevant factor.
In V.Padmavattamma (1 supra), it is held that a person who is receiving rent or
who is entitled to receive rent of a building, whether on his own account, or on
behalf of another or as an agent, trustee, executor, administrator, receiver or
guardian or who would so receive the rent or be entitled to receive the rent if
the building were to let out to a tenant is a landlord.
In Smt. Shanti Sharma and others (1 supra), it is held that though a person is
not the owner of the land, but the person who constructed the building structure
thereon is owner, as such he could maintain eviction petition.  It is further
held that that a person who is receiving the rents is included in the definition
of landlord.
In Krishan Lal (4 supra), it is held that when the matter is not decided on
merits, principle of res judicata has no application.
In Mothukuri Ranga Rao and another (5 supra), it is held that principles of res
judicata applies only when the earlier matter has been heard and finally
disposed of by such Court, and in that case it is also held that mere dismissal
of earlier petition for default, does not operate as res judicata in subsequent
proceedings.

In the present case, the Appellate Authority found that the husband of the 1st
revision petitioner and the 1st revision petitioner were collecting rent, but
since they are receiving rent on behalf of K.Narasinga Rao and the eviction
petition is not maintainable without the permission of the landlord as laid down
in the decision in Vasant Rao Ankilkar (6 supra).
In Kedar Bhatia (12 supra), it is held that just because tenant failed to prove
his title and the landlord establishes his title, such a person shall not be
construed to be a tenant under the landlord.
In K.P.Janakiram (13 supra), it is held that unless the tenant and landlord
relationship is established between the landlord and tenant, eviction petition
cannot be maintained.
In Rajendra Prasad (9 supra), it is held that the jurisdiction of Rent
Controller is limited to decide whether denial or claim by the tenant is bona
fide or not and it cannot decide existence of title with finality.
In M.Sarojini Devi (10 supra), it is held that the Rent Controller need not make
a roving enquiry with regard to the title of the landlord, however when the
title of the landlord is disputed, the Rent Controller has to decide whether
dispute of title is bona fide or not.
In Avulapalle Mallikarjuna case (11 supra), it is held that every person in
possession of premises, even without title; cannot become a tenant
automatically, of any one, including that of the rightful owner, and while
possession can come into existence with unilateral acts of parties, a tenancy is
the one, which would emerge only with the consent of parties and the consent can
be expressed orally, or in writing, and until the tenancy, that too, of a
particular nature was not established by the landlord, there was no basis for
the trial Court to order eviction of the tenant.
In Mohammed Abdul Rahman (14 supra), it is held in para-5 as follows:
"It is now well settled that jurisdiction of High Court under Section 22 of the
Act is revisional jurisdiction. Though the power is a little wider than
revisional jurisdiction, it is not equal to appellate jurisdiction.  A limited
scrutiny is to see that order passed by appellate authority is not vitiated by
illegality, irregularity or impropriety.  Mere possibility of a different
conclusion in background facts does not enable High Court to reverse finding of
appellate authority."

In Harshavardhan Chokkani case (8 supra), it is held in para-7 as follows:
"There can be no controversy about the position that the power of the High Court
under Section 22 of the Act is wider than the power under Section 115 CPC.
Nonetheless, the High Court is exercising the revisional power, which in its
very nature is a truncated power.  The width of the powers of the revisional
court cannot be equated with the powers of the appellate court.  In examining
the legality and the propriety of the order under challenge, what is required to
be seen by the High Court is whether it is in violation of any statutory
provision or a binding precedent or suffers from misreading of the evidence or
omission to consider relevant clinching evidence or where the inference drawn
from the facts proved is such that no reasonable person could arrive at or the
like.  It is only in such situations that interference by the High Court in
revision in a finding of fact will be justified.  Mere possibility of a
different view is no ground to interfere in exercise of revisional power.  From
the above discussion, it is clear that none of the aforementioned reasons exist
in this case to justify interference by the High Court."


In view of the above discussion and the judgments relied on by both sides, it is
found that the Appellate Authority as well as Rent Control Court held that the
1st revision petitioner could not prove her title, but the Rent Controller
relied on some of the municipal assessments, held that the 1st revision
petitioner has proved her case and ordered eviction.  Whereas, the Appellate
Authority found that the municipal assessments are not tallying with the
municipal numbers of suit schedule premises and came to the conclusion that the
1st revision petitioner has not established her title to the suit schedule
property.  The Appellate Authority also relied on Ex.A.11 and also Ex.B.16, and
held that denial of title by respondents is bona fide.

By relying on the evidence, the Appellate Court, which is final fact finding
Court, held that the denial of title and landlord and tenant relationship by the
respondents-tenants to be bona fide one.
I cannot re-appreciate the same within
the revisional jurisdiction under Section 22 of the Act in view of the judgments
discussed above.  More so, the Rent Control Court cannot decide the title, only
it can find out whether the denial is bona fide or not.  It is not as if the 1st
revision petitioner is not without any remedy to evict the respondents, but he
has to approach the civil court and establish his title for evicting the
respondents-tenants.
The jurisdiction of authorities under the Rent Controller
is limited to find out whether the denial of title of landlord by the
respondents-tenants is bona fide or not, they cannot make a roving enquiry of
the title aspect.

In view of the above facts and circumstances, I am of the opinion that there is
no error committed by the Appellate Authority in allowing the appeals of the
respondents-tenants.

 Accordingly, all the civil revision petitions are dismissed. There shall be no
order as to costs.

As a sequel, miscellaneous petitions, if any pending in all the revisions, shall
stand disposed of.

____________________  
A.RAJASHEKER REDDY, J    
Date: 04-09-2013

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.