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Judgment
V. Sujatha, J
1) This civil revision petition is filed by the petitioner/plaintiff under Article 227 of the Constitution of India challenging the order dated 01.11.2024 passed in I.A.No.336 of 2024 in O.S.No.337 of 2015 by the III Additional Junior Civil Judge (Excise) Vizianagaram, whereby, the Trial Court dismissed the said interlocutory application filed Under Order VI Rule 17 of Code of Civil Procedure (for short “C.P.C.”) to permit the petitioner/plaintiff to amend the plaint.
2) For the sake of convenience, the parties to the revision will hereinafter be referred as petitioner and defendants, as arrayed before the Trial Court in I.A.No.336 of 2024.
3) The petitioner-plaintiff initially filed O.S.No.337 of 2015 as against the respondents for permanent injunction restraining them from interfering with his possession in respect of the suit schedule property, which is agricultural land of an extent of Ac.0.50 cents from out of the total extent Ac.12.15 cents in Sy.No.171/1 of Sarika Village, Vizianagaram District.
4) The case of the petitioner-plaintiff is that the suit schedule property is his exclusive property and he has been in possession and enjoyment in pursuance of the revenue records mutated in his name and that the respondents-defendants got their land on the northern side of his property. When the defendants tried to encroach into the petitioner’s land, he filed the present suit. During pendency of the suit, as the respondents-defendants encroached into the land of the petitioner-plaintiff and continuing in possession, he filed an application for appointment of an Advocate Commissioner to localize the schedule property and to note down the physical features. The trial Court was pleased to appoint an Advocate Commissioner for the said purpose and the Advocate Commissioner surveyed the land with the help of Mandal Surveyor and noted down the physical features and in the said survey, it has come to light that an extent of Ac.0.11 ½ cents of schedule property was encroached by the respondents-defendants and the Commissioner submitted his report to that effect by enclosing a sketch prepared by the Mandal Surveyor, Vizianagaram. The said Advocate Commissioner was summoned to the Court and was examined as C.W.1 and the Advocate Commissioner’s report and rough sketch were marked as Exs.X.1 to X.3. Having come to know about the report and evidence of the Advocate Commissioner, the petitioner filed I.A.No.336 of 2024 under Order VI Rule 17 of C.P.C. requesting the Court below to permit him to amend the plaint from one of injunction to declaration and recovery of possession.
5) The Trial Court upon hearing argument of both the counsel, dismissed the said I.A.No.336 of 2024 on the ground that the matter cannot be reopened at the fag end stage of arguments without assigning sufficient cause. Aggrieved by the said order, the present revision petition is filed.
6) When the present revision came up for admission on 13.12.2024, this Court has passed the following interim order.
“Considering the submissions made by the learned counsel for the petitioner, there shall be an interim stay of all further proceedings in O.S.No.337 of 2015 on the file of the III Additional Junior Civil Judge (Excise), Vizianagaram till the next date of hearing.”
7) The said interim order has been extended from time to time.
8) During hearing, learned counsel for the petitioner-plaintiff contended that the amendment can be allowed at any stage of the suit. As the respondents-defendants encroached the suit schedule property of the petitioner-plaintiff during pendency of the suit, he has filed the present application seeking amendment of the plaint, therefore, to decide the real controversy, the present petition has to be allowed. Therefore, he requested this Court to allow the revision.
9) Learned counsel for the respondents-defendants supported the order of the Court below in all respects and requested this Court to dismiss the revision petition.
10) Admittedly, the petitioner-plaintiff filed O.S.No.337 of 2015 seeking permanent injunction restraining the defendants, their men, from interfering with the peaceful possession and enjoyment of the suit schedule land in an extent of Ac.0.50 cents from out of the total land of Ac.12.50 cents on its northern side. During pendency of the suit, when the respondents-defendants, who are in occupation of northern side of the suit schedule property, tried to encroach over the petitioner’s property, the petitioner got appointed the Advocate Commissioner through the Court below. The Advocate Commissioner was examined as C.W.1; advocate Commissioner’s report and rough sketch were marked as Exs.X.1 to X.3. Advocate Commissioner surveyed the suit schedule property with the help of Mandal Surveyor and noted down the physical features and submitted his report and sketch vide Exs.X.1 to X.3. The said report discloses that an extent of Ac.0.11 ½ cents was encroached by the respondents-defendants. Therefore, the petitioner-plaintiff filed the present I.A.No.336 of 2024 to amend the plaint prayer from “suit for permanent injunction” to “suit for declaration and recovery of possession”.
11) The petitioner-plaintiff filed the petition under Order VI Rule 17 of C.P.C. For better appreciation, this Court feels it appropriate to extract Order VI Rule 17 of C.P.C., which is as follows:
“17. Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such 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 controversy 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.”
12) Normally, when petitions under Order VI Rule 17 of C.P.C. are filed at pretrial stage, Court would order such applications granting leave to parties to amend their pleadings and if it is post-trial amendment, then Court may put on guard in allowing such applications since it would cause prejudice to the other parties to the suit or proceedings.
13) According to Order VI Rule 17 of C.P.C., the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such 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 controversy between the parties. The principles to allow petitions under Order VI Rule 17 of C.P.C. are well settled, namely; the amendment shall not alter the basic structure or nature of the claim and that the amendment shall not take away the valuable right that accrued to the respondents or such amendment would not amount to withdrawal of unequivocal admissions made in the pleadings as held by the Apex Court in “Rajkumar Guruwara (dead) through LRs Vs. S.K. Sarwagi and Company Private Limited and another (2008) 14 SCC 364”. In view of the law declared by the Apex Court in the above judgment, the Court has to find out whether the proposed amendment would fall within the parameters laid down by the Apex Court and if it would fall within the ambit of the guidelines, Courts can allow such amendments, otherwise reject the same.
14) In “A.Krishna Rao Vs. A.Narahari Rao and others 2015 (1) ALT 113” while dealing with an application under Order VI Rule 17 of C.P.C., this Court held that “even if the proposed amendment has the effect of raising a conflicting plea, that by itself would not constitute ground to reject the amendment, for it is for the plaintiff to ultimately justify his pleadings and prove the same with reference to evidence. After all, procedure is handmaid of justice and a party cannot be deprived of his right to raise pleadings by way of amendment, unless the proposed amendment results in failure of justice.”
15) In “Revajeetu Builders and Developers Vs.Narayanaswamy and Sons and others 2009 (8) SCJ 401”the Apex Court laid down certain guidelines for granting or denying relief under Order VI Rule 17 of C.P.C., viz; as follows:
"On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
Whether the amendment sought is imperative for proper and effective adjudication of the case;
Whether the application for amendment is bona fide or mala fide;
The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
Refusing amendment would in fact lead to injustice or lead to multiple litigation;
Whether the proposed amendment constitutionally or fundamentally nature and character of the case; and
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.”
16) In view of the guidelines laid down by the Apex Court, which are illustrative and not exhaustive, it is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, the courts while deciding such prayers should not adopt a hyper-technical approach. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. In the present facts of the case, no fresh claim is made, the proposed amendment would not change the nature and character of the suit constitutionally or fundamentally.
17) In “Rajesh Kumar Aggarwal and others v. K.K.Modi and others AIR 2006 SC 1647” the Apex Court made it clear that merits of the proposed amendment cannot be gone into at the stage of allowing amendment and the object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
18) Order VI Rule 17 of C.P.C. consists of two parts, namely; first part is discretionary and leaves it to the Court to order amend pleadings and second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of deciding real controversy between the parties. The real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties. If it is, amendment will be allowed and if it is not, amendment shall be refused. Even if the principle laid down in the above judgment is applied to the present facts of the case, the Court cannot negate the relief of amendment since the petitioners wanted to clean the dirt by brining certain facts to the notice of Court by amending plaint by filing petition under Order VI Rule 17 of C.P.C.
19) In “Oruganti Ramulu and another Vs. P.Ravindar Goud 2023 (3) ALD 171 (TS)”, relied on by the learned counsel for the petitioner, the question of amendment of pleadings of suit from perpetual injunction to suit for declaration of title came up for consideration, the High Court for the State of Telangana at Hyderabad relying on the judgments referred supra, held that as there is no change of nature of suit, the amendment can be allowed. Further, the disputes between the plaintiff and the defendants have to be resolved and real controversy has to be decided on consideration of the pleadings.
20) In any view of the matter, first part of Order VI Rule 17 of C.P.C. conferred discretionary power on the Court to order for amendment of pleadings. The petitioner-plaintiff filed O.S.No.337 of 2015 seeking permanent injunction restraining the defendants, their men, from interfering with the peaceful possession and enjoyment of the suit schedule land in an extent of Ac.0.50 cents from out of the total land of Ac.12.50 cents on its northern side. During pendency of the suit, when the respondents-defendants, who are in occupation of northern side of the suit schedule property, tried to encroach the petitioner’s property, the petitioner got appointed the Advocate Commissioner through the Court below. The Advocate Commissioner appointed by the Court below surveyed the suit schedule property with the help of Mandal Surveyor and noted down the physical features and submitted his report. During the survey, it has come to light that an extent of Ac.0.11 ½ cents was encroached by the respondents-defendants. Therefore, the petitioner-plaintiff filed the present petition to amend the prayer from that of “permanent injunction” to that of “declaration and recovery of possession”. But the trial Court without discussing anything about the requirements under Order VI Rule 17 of C.P.C., dismissed the petition.
21) In the present case, there are two options to the plaintiff viz., (i) filing of the fresh suit seeking declaration of title, recovery of possession and mandatory injunction, and (ii) seeking amendments amending the plaint from perpetual injunction to declaration of title, recovery of possession. When filing of fresh suit is permissible, it is equally permissible to seek amendment of the plaint as held by the Hon’ble Apex Court in “Sampath Kumar Vs. Ayyakannu 2002 (6) ALD 63 (SC)”. As the petitioner-plaintiff filed petition for amendment of the prayer in the plaint, the same can be allowed at any stage of the suit. The dominant purpose of allowing the amendment is to minimize the litigation.
22) In view of my foregoing discussion, I find that the order of the trial Court is erroneous as it has failed to exercise discretion properly and such finding is liable to be set aside by exercising power under Article 227 of the Constitution of India.
23) In the result, the civil revision petition is allowed setting aside the order dated 01.11.2024 in I.A.No.336 of 2024 in O.S.No.337 of 2015 on the file of the III Additional Junior Civil Judge (Excise), Vizianagaram, granting leave to the petitioner to amend the plaint as claimed in I.A.No.336 of 2024. No costs.
24) Consequently, miscellaneous applications pending if any, shall also stand dismissed.