Annapureddy Chinna Venkatamma vs Annapureddy Krishna Reddy and others

This revision petition is filed by the plaintiff aggrieved by the judgment and order of the Principal Junior Civil Judge, Nandyal, passed in IA 2136 of 1997 in OS 245 of 1990, dated 26-6-1998. By the impugned order the proposed amendment sought by the plaintiff is refused by dismissing the petition.

The learned Counsel for the petitioner strenuously contended that the proposed amendment is only clarificatory in nature and the same could have been allowed and the Court below was in error in holding that the proposed amendment changes the nature of the suit and accordingly prejudices the case of the defendant. He also submitted that by allowing the proposed amendment, the defendants would not be prejudiced. Therefore the Court below failed to exercise the jurisdiction vested in it in refusing the amendment sought for by the plaintiff and as such the impugned order is liable to be set aside. He relied upon the judgment of the Supreme Court reported in Akshaya Restaurant Vs. P. Anjanappa and Another, . On the other hand the learned Counsel for the respondents/ defendants contended that by the proposed amendment the plaintiff has sought for deleting paragraph No.4(b) by substituting a new paragraph and he also sought for the amendment of the value of the plaint schedule property. He also sought for deletion of the earlier reliefs at paragraphs 1 and 2 by substituting new prayer and if such an amendment is allowed, the defendants could be definitely prejudiced and in those circumstances the Court below has rightly refused the proposed amendment. He relied upon the judgment of the Supreme Court reported in Heeralal Vs. Kalyan Mal and Others, . He also submitted that such an amendment should not be allowed since it prejudices the case of the other side and the impugned order being a discretionary order, does not call for inference u/s 115 of the Civil Procedure Code.

In order to appreciate the rival contentions I think it appropriate to note the facts of the case. The petitioner/ plaintiff filed a suit in OS No.245 of 1990 for injunction regarding Ac.4.56 in S/No.13/1. In the suit he alleged that the plaintiff has been in possession of the plaint schedule land and the defendants have been interfering with his possession and accordingly sought for permanent injunction. Latter by filing an amendment petition in IA No.588 of 1993 sought for the amendment of the plaint contending that after his prayer for injunction was refused, the defendants have dispossessed him and the plaintiff was entitled to the half share and accordingly he is entitled for the same and consequently he sought for amendment of the plaint by inserting paras 4(a) and 4(b). He also sought for amendment of the relief column in the plaint for declaring the plaintiff''s half share in the plaint schedule land and for partition and separate possession of the plaintiff''s half share by metes and bounds from the defendants. That amendment was allowed by the Court below by its order dated 19-9-1994. Thereafter the plaintiff filed the present petition for amendment in IA No.2136 of 1997 seeking to delete paragraph No.4(b) and also seeking amendment to paras 7 and 8 regarding the Court fee. In the relief column in para 9 he prayed for substitution of relief Nos.1 and 2 by new reliefs for declaration of plaintiff''s title and for a decree for possession. The Court below refused the proposed amendment by passing the impugned order. Therefore the plaintiff has come up by way of this revision petition.

From the facts narrated above, it is clear that the plaintiff sought for amendment of the prayer in the suit from injunction to declaration and possession regarding the half share vide amendment application filed in IA No.588 of 1993 and after that amendment being allowed, the plaintiff sought for declaration and possession with regard to the half share in the suit schedule property. Now by the proposed amendment, he is seeking a relief for declaration that he is the owner of the entire land and consequently in possession of that land. If this is the case of the plaintiff, now the point would be whether the proposed amendment would be clarificatory in nature or tantamount to substituting his entire case by a new case.

The learned Counsel appearing for the petitioner relying upon the judgment of the Supreme Court reported in Akshaya Restaurant v. P. Anjanappa (supra) contended that the amendment is only clarificatory in nature and no prejudice would be caused if the amendment is allowed. But on the other hand the learned Counsel for the respondents by relying upon the judgment of the Supreme Court reported in Heeralal v. V. Kalyan Mal (supra) contends that the proposed amendment completely changes the nature of the suit by proposing to substitute his original plea for half share by the new plea for the entire property and if this amendment is allowed, the defendants would definitely be prejudiced. He further submitted that the defendants have already filed a written statement after the earlier amendment contending that the plaintiff is not entitled to any share nor has got any right in the property. He further contended that as per the Judgment of the Supreme Court in Heeralal v. K Kalyan Mal, (supra), the trial Court has rightly refused the amendment petition.

As I have noticed above, after the first amendment the plaintiff''s case is for declaration and for possession of the half share in the suit schedule land. The suit schedule land in all measures Ac.4.56 cents but by the proposed amendment now sought, he seeks declaration and possession of the entire land and if that is so; the present amendment cannot be said to be one explaining the admission made by the plaintiff in the case. After the first amendment the plaintiffs case would be that he is entitled to half share in the suit schedule property. Therefore, the present amendment seeking declaration and possession regarding the entire land cannot be said to be one modifying his earlier admission. In fact, the nature of the entire suit schedule property stands changed from half share to full share and definitely it would prejudice the case of the defendants. In this view of the matter the judgment of the Supreme Court reported in Akshaya Restaurant v. P. Anjanappa, (supra) could not apply to the facts of this case. Moreover, that judgment has been referred lo and clarified by the Honourable the Supreme Court in the latter judgment reported in Heeralal v. V. Kalyan Mal, (supra). The Supreme Court also doubted the proposition laid down in the above case by observing as hereunder :

"Even that apart the said decision of two learned judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . In that case Ray, CJ., speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000/- against the defendants. The defendants in their written statement admitted that by virtue of an agreement dated 7th April, 1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under Order VI, Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that plaintiff was stockist-cum-distributor. Such amendment was rejected by the trial Court and the said rejection was affirmed by the High Court in revision . The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned Judges that decided the case in Akshaya Restaurant (supra). In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas would be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant (supra), proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However, the aforesaid decision of the three-member Bench of this Court in Modi Spinning (supra), is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff''s case and cause him irretrievable prejudice."

From the above judgment of the Supreme Court it is clear that while granting an amendment no inconsistent plea can be allowed which would displace the plaintiffs case and cause him irreparable loss. In the instant case if the proposed amendment is allowed, it would definitely be inconsistent to the original plea raised by the plaintiff in paragraphs 4(a) and 4(b) and also to the reliefs claimed vide paragraphs (a) and (b) in the relief columns in the suit. The Court below relying upon the judgment of the Supreme Court reported in Heeralal v. V. Kalyan Mal (supra) refused the amendment proposed by the plaintiff. Having regard to these circumstances I do not think that there is an error of jurisdiction in the impugned order for interference of the Court u/s 115 of the Civil Procedure Code. Moreover, the suit is of the year 1990. It is brought to my notice that the plaintiff has been examined in part. A certified copy of the deposition which was now placed before me shows that in the deposition she stated that "after the dismissal of my injunction I got the plaint amended. Hence the suit be decreed as prayed for". From this it appears that the plaintiff has been consistently adhered to her case that she is entitled to her half share in the suit schedule property. Having regard to these circumstances I do not think that the impugned order calls for any interference. Accordingly I pass the order as hereunder :

The revision is dismissed. But in the circumstances no order as to costs.