IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT HYDERABAD
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
SECOND APPEAL No. 1035 OF 2010.
DATED 16TH DECEMBER, 2010.
BETWEEN
Somepalli Kotaiah and anr
…Appellants
and
Dama Venkaiah and ors
….Respondents.
HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA
SECOND APPEAL No. 1035 OF 2010.
JUDGMENT:
The dismissal of the appeal suit in AS.No. 3 of 2007 through judgment and decree dated 25.3.2010 passed by the learned Senior Civil Judge, Addanki, confirming the decree and judgment dated 28.3.2007 passed in O.S.No. 265 of 1995 by the learned Principal Junior Civil Judge, Addanki, led the unsuccessful appellants/plaintiffs to file the present Second Appeal.
The suit in O.S.No. 265 of 1995 was filed by the appellants/plaintiffs for partition of the plaint schedule property into two equal shares and allot one such share to them. It is the admitted case of both the parties that the fathers of the appellants/plaintiffs and respondents/defendants purchased the suit schedule property jointly under the registered sale deed Ex.A.1 in the year 1981, and that immediate after purchase of the said property, the fathers of both the parties enjoyed the said property and after them, both the parties herein are enjoying the same. When the respondents/defendants caused obstruction in using the passage to have ingress and ingress in their suit land, the appellants/plaintiffs filed the suit for the relief stated supra. During the pendency of the said suit, the elders intervened, and on their advise, both parties entered into agreement Ex.A.2 on 28.11.1996. Even then also, disputes continued between the parties in respect of the usage of passage. It was the specific case of the appellants/plaintiffs that their father and the father of the defendants separated the suit schedule property for the sake of their convenience, but, in fact, there is no partition of the joint suit property by metes and bounds. It was the case of the respondents/defendants that immediately after the purchase of the suit schedule property under Ex.A.1, the fathers of both the parties divided the said property into two plots and therefore, the plaintiffs are not entitled to seek new and second partition. Based on the rival pleadings, the trial Court framed the necessary issues and after full-fledged trial, dismissed the suit.
Aggrieved by the dismissal of the suit, the appellants/plaintiffs preferred the appeal suit in AS.No. 3 of 2007, which was also ended in dismissal by judgment and decree dated 25.3.2010. Hence this Second Appeal.
At the time of disposal of the Second Appeal, I considered the substantial questions of law framed in the grounds of Second Appeal, which read as under:
1. Whether the Appellate Court has power to permit the plaintiff/appellant to amend the prayer of the suit? If so, the rejection of the prayer to amend the relief portion by the appellate Court did not amount to non exercise of jurisdiction causing irreparable loss or injustice ?
2. Whether by permitting the amendment to the plaint seeking the relief of right of way by way of prescription by amending the plaint at the stage of appeal is barred by limitation especially keeping in view of Order 6 Rule 17 CPC ?
3. Whether the Courts are powerless to order amendment to enforce the agreement Ex.A.2 to avoid the multiplicity of proceedings ?
4. Whether the agreement Ex.A.2 is not binding on the parties and can be enforced in law?
The learned Counsel for the appellants submitted that inasmuch as the lower appellate Court has not exercised its power vested in it in proper perspective to order for amendment of the plaint of the suit, it amounts to causing of irreparable loss or injustice to the appellants, and that amendment of the plaint at the stage of appeal is not barred by limitation as provided under Order 6 Rule 17 CPC.
Heard. Perused the record
In the backdrop of these contentions, I shall now proceed to scrutinize the evidence, both oral and documentary, available on record, so as to examine as to whether the lower appellate court has appreciated the evidence in proper perspective or whether any interference is called for by this Court.
Before adverting to the so called substantial questions of law, be it noted that the scope of this Court under Sec. 100 C.P.C. is quite narrow and limited. Therefore, within the ambit of the appellate jurisdiction of this court under Sec. 100 CPC, let us examine, whether the substantial questions of law raised need consideration and warrant any interference.
It appears, during the pendency of the appeal, the appellants/plaintiffs filed an interlocutory application for amendment of the pleadings on the ground that during the pendency of the suit, Ex.A.2 agreement was executed by both the parties in respect of usage of passage for ingress and ingress into the disputed suit schedule land. They contended that inasmuch as there are subsequent charges during the pendency of the suit proceedings, the lower appellate Court ought to have allowed the said interlocutory application for amendment of the plaint. It is the submission of the learned Counsel for the appellants that the amendment of plaint is on the foot of the agreement dated 28.11.1996. Before the lower Appellate Court, the respondents/defendants raised objection that the alleged amendment is barred by limitation and that the same shall not be allowed at this belated stage, otherwise, it would cause prejudice to them. It is further submitted that the plaintiffs have to file a separate suit for implementation of the said agreement. The lower Court on a consideration of the above contentions, dismissed the said interlocutory application, rightly observing that the amendment which was sought by the plaintiffs is unwarranted and it changes the total nature of the suit and there by it would cause prejudice to the respondents, and, that, therefore, this type of amendment cannot be allowed as against the principles laid down by the authoritative pronouncements of this Court and Apex Court.
Order VI Rule 17 CPC provides that the Court, may, at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and onsuch terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controvery between the parties, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In the present case, both the parties have due diligence about entering into the agreement Ex.A.2 and though the said document was brought on record at Ex.A.2, however, they have not taken appropriate steps to seek amendment of the plaint on the foot of execution of the said document.
The principle applicable to the amendment of the plaint is well settled. It is also settled law that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and the Apex Court, provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is also settled principle of law that subsequent events to the institution of the suit, so far they are in consonance with the original cause of action, should be permitted to be brought on record by way of amendment. However, in the present case, the plaintiffs having due diligence about the entering into the agreement of Ex.A.2 during the pendency of the suit, have not taken appropriate steps to amend the plaint, but, however, at the appeal stage, they have moved the application for amendment of the palint, which, in my considered opinion, cannot be allowed. The amendment of the plaint at the appellate stage for substantiating the allegations of the plaintiffs is totally unwarranted as the same is belated and further that, in case, it is allowed, the whole suit has to be reopened afresh. In that view of the matter, the lower appellate Court has rightly rejected the application of the appellants for amendment of the plaint. For the foregoing discussion, I do not see any question of law, much less a substantial question of law, that arises for consideration in the second appeal.
The Second appeal is accordingly dismissed. There shall be no order as to costs.
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JUSTICE ASHUTOSH MOHUNTA
Dated 16.12.2010
Msnro
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