Kore Raj Kumar vs Kale Saraiah

Heard Sri K.Buchi Babu, learned counsel for the petitioner and Sri Ashok Reddy Kanathala, learned counsel for respondent no.1.

Petitioner is the first defendant. First respondent is plaintiff and the respondents 2 to 5 are defendants 2 to 5 in O.S.No.1 of 2010 on the file of Court of Senior Civil Judge, Jangaon. Parties are referred to as arrayed in the suit.

Plaintiff filed the suit to grant preliminary decree of partition of the suit schedule properties by allotting 1/4th share to him; to appoint Commissioner to partition the suit schedule properties by meets and bounds and allot 1/4th share to him and 1/4th share each to defendants 1 to 3; he be placed in separate possession of his share; and to award mense profits.

On 16.06.2011, the trial Court framed the following issues:

“(1) Whether the suit schedule property is a joint family property of the plaintiff and the defendants nos.1 to 3 ?

(2) Whether the suit schedule property is liable for partition?

(4) Whether the suit is bad for mis-joinder of defendant Nos.4 and 5 ? and

(5) to what relief ? ”

Recording of evidence was concluded and arguments of counsel for plaintiff were heard on 02.11.2021 and 10.11.2021. Matter was adjourned to 17.11.2021 for arguments of defendant’s counsel. While so, on 17.11.2021, first respondent filed I.A.No.269 of 2021 under Order XIV Rule 5 read with Section 151 of Code of Civil Procedure praying to amend/frame the issues. He sought the amendment of first issue, to delete issue no.4 and to frame three issues as :

“(1) Whether the plaintiff and defendant Nos.1 to 3 are in joint possession ?

(2) Whether there is cause of action for filing the suit ?

(3) Whether the Court fee paid is insufficient and provision of law is incorrect?”

Plaintiff opposed the application. He contended that during the course of his arguments, he conceded to delete the word ‘family’ in the first issue and therefore no need to reframe the issue. On other issues also he has countered the claim of first defendant. He has urged that by this application first defendant is trying to fill the lacuna in the evidence.

On due consideration of respective submissions, trial Court dismissed the I.A.No.269 of 2021. The trial Court held that more than ten years after the issues were settled this application is filed without assigning cogent reasons and is intended only to fill the lacuna. The trial Court discussed the issues already framed and the issues sought to be framed by the first defendant and for the reasons recorded therein observed that by not redrafting the issues no injustice and prejudice would be caused to the petitioner.

No reasons are assigned in support of the application excepting urging that they are necessary for proper adjudication. No explanation is offered why first defendant chose to file such application at a belated stage.

Even now, except urging that plaintiff in collusion of defendants 2 and 3 trying to grab his property, there is no satisfactory explanation on filing such an application when the suit was coming up for his arguments and ten years after the issues were settled.

Learned counsel for first defendant sought to contend that such an application can be filed at any stage of the suit. In support of said contention, he placed reliance on the decision of  this Court in Venkata Subbamma vs. Praneshachari and another 2004 (3) ALD 767.

From the above decision, it is noticed that in the peculiar facts of the case and in view of undertaking given by petitioner therein, the decision of trial Court refusing to permit petitioner therein to frame additional issue was reversed.

In the case on hand, the trial Court has assigned cogent reasons to reject the prayer of the first defendant and also observed that no injustice is caused and no prejudice is caused to first defendant if the issues are amended/framed as sought by him.

Order XIV Rule 5 of CPC is an enabling provision vesting discretion in the Court to amend the issues or frame additional issues at any stage of the suit. The primary objective of the provision is technicalities should not come in the way of Court giving proper adjudication to a lis and in rendering justice. It is not meant to abuse the process of the Court. Having regard to the facts of the case and conduct of the first respondent, the trial Court declined to exercise the discretion by assigning cogent reasons. Petitioner has not shown how that finding of   the trial Court is erroneous. I see no error in the decision of the trial Court.

The suit is of the year 2010. The issues were settled in the year 2011. This application is filed after ten years when matter is coming up for arguments of defendants. What is urged in this revision was also urged in the written statement of first defendant. No explanation is offered as to why he kept quite for this long time. No new fact was discovered and it is not a case where in spite of exercising due diligence the first defendant could not realise need to recast the issues earlier.

I do not see any bona fides in the claim of first defendant. He does not want the suit proceedings to be concluded. He is abusing the process of the Court by taking recourse to filing such application at the fag end of the suit proceedings. The Civil Revision Petition is dismissed. Pending miscellaneous applications stand closed.