IN THE
HIGH COURT OF JUDICATURE OF ANDHRA PRADESH
AT
HYDERABAD
THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Civil Revision Petition No.1927 of 2012
Dated 23rd April, 2012
Between:
Bandaru Gopalaswamy
Educational Society
…Petitioner
and
The Kadapa NGOs
Cooperative Building Society Limited
…Respondent
Counsel for the
petitioner: Sri P.Veera Reddy
Counsel for
respondent: ---
The Court
made the following:
ORDER:
This civil revision petition is filed against order,
dated 26.03.2012, in I.A.No.238 of 2012 in O.S.No.43 of 2008, on the file of
the learned I Additional District Judge, Kadapa.
The respondent filed the above-mentioned suit for
eviction of the petitioner from the suit schedule premises. Earlier,
the respondent obtained a decree to the effect that the lease deed executed by
it in favour of the petitioner is null and void. As the relief of
recovery of possession was not claimed in the previous suit, it filed the
above-mentioned suit for the said relief. After the pleadings were
completed and the evidence was closed, the case was posted for arguments. At
that stage, the petitioner came out with I.A.No.238 of 2012 under Order VI Rule
17 CPC for permission to amend the written statement by seeking to plead that
the present suit is barred by the provisions of Order II Rule 2 CPC. This
application was dismissed by the lower Court. Hence, the petitioner
filed the present civil revision petition.
I have heard Sri P.Veera Reddy, learned counsel for the
petitioner, and perused the record.
In his affidavit filed in support of the IA, the
President of the petitioner-society averred that he had no knowledge of legal
aspects and therefore, in the written statement the proposed plea was not
mentioned. It is further stated that on legal advice, he has filed
the IA for amendment.
The lower Court having considered the said plea rejected
the same. It has observed that the petitioner is represented by a
Senior Counsel and that there was no possibility of not raising the proposed
plea by oversight or by mistake.
Under proviso to Order VI Rule 17 CPC, no application for
amendment shall be allowed after commencement of the trial 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. Even
assuming that the counsel who handled the case has omitted to raise the plea
based on Order II Rule 2 CPC, the said reason will not satisfy the requirements
of the above-mentioned proviso because had due diligence been shown, there
would not have been any possibility for the petitioner’s counsel to raise that
plea.
The judgment in Ramesh Kumar Agarwal v. Rajmala
Exports Pvt.Ltd., and others[1],
on which heavy reliance was placed by the learned counsel for the petitioner,
does not help the petitioner at all because while the propositions of law laid
down therein do not admit of any other opinion, it failed to satisfy the
parameters laid down by the Court in the said judgment. Unless it is
able to show that despite due diligence, it could not raise the issue earlier,
it is not entitled to seek amendment of the pleading.
As noted above, having regard to the nature of the plea
which is proposed to be raised, there would not have been any possibility of
omitting the same had any diligence been shown at the time of filing the
written statement.
For the above-mentioned reasons, I do not find any error,
jurisdictional or otherwise in the order of the lower Court calling for
interference of this Court in exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.
The civil revision petition is accordingly dismissed.
As a sequel to dismissal of the civil revision petition,
C.R.P.M.P.No.2595 of 2012 shall stand disposed of as infructuous.
C.V.NAGARJUNA REDDY,
J
23rd April,
2012
VGB
No comments:
Post a Comment