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Judgment
T. Rajani, J
This revision is preferred by the petitioners/plaintiffs questioning the order, dated 04.06.2018, passed in I.A. No. 1095 of 2014 in O.S. No. 345 of 2006 on the file of the court of Principal Junior Civil Judge, Chirala, by virtue of which the court below dismissed the petition, which was filed by the petitioners seeking to amend the plaint, adding the relief of declaration with regard to Bode canal XYRS, considering that the petition was filed at a very belated stage.
Impugning the said order, this revision is preferred on the grounds that the court below ought to have allowed the application and that it incorrectly held that the plaintiffs failed to establish due diligence in filing the present application. The plaintiffs have showed due diligence in prosecuting the suit by adducing evidence. The defendants filed counter claim, in view of which the amendment of plaint is necessitated. The court below failed to consider that there is a specific pleading that there is no necessity to adduce further evidence in the event of allowing the present application. The court below ought to have seen that to decide the dispute finally, adjudication of XYRS bode canal water course is very much essential.
Heard Sri. Naga Praveen Vankayalapati, learned counsel for the petitioners and Sri. M. Chalapati Rao, learned counsel for the respondents.
The counsel for the petitioners contends that it is only by virtue of the plea taken by the respondents/defendants in the counter claim that the need for seeking for this amendment has arisen. Even if the same is considered as true, the observation of the court below, that the counter claim was filed on 15.11.2006 and issues were settled on 09.10.2009 while the present application is filed in the year 2014, holds good.
A perusal of the plaint at paragraph 'F' would show that the defendants were proclaiming that they would close XYRS outlet and would obtain ex parte orders through the court, against the plaintiffs, as if there is no XYRS outlet. Hence, from the said averments, it is clear that the plaintiffs had ample clue that the defendants would be denying the existence of XYRS outlet. In spite of there being a clear apprehension and in spite of the same being spelled out in the plaint, the petitioners chose to restrict their prayer only for a permanent injunction.
The absence of due diligence in this case is not from the date of filing the counter claim but from the date on which the defendants declared that they would close down the XYRS outlet and would get an ex parte order through court as if there is no XYRS outlet and from the time of filing the suit.
The counsel for the petitioners submits that when there is no prejudice that is caused to the other side, the amendment, as sought for, can be allowed. But in the considered opinion of this court, mere non-resulting of prejudice cannot form a ground for allowing amendments as and when sought for. The petitioners have to lay a foundation for allowing such an amendment.
The counsel for the petitioners relies on a judgment of the apex court reported in Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs (1) (2008) 4 SCC 594 : 2009 (2) ALT 30.3 (DN SC) and relies on the observations of the apex court made at paragraph 14 of the said judgment.
"We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiffs title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property-. On the other hand, where the plaintiff has clear title supported by documents, fi a trespasser without any claim to the title or an interloper without any apparent title, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, an din such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title."
In fact, the observations though are to the effect that where the plaintiffs believe that the defendants are only trespassers or wrongful claimants without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration, it also observed that alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
But such observation does not overrule the rule of due diligence. This is all only when the parties act with due diligence. In this case, there is serious lapse on the part of the petitioners/plaintiffs to act with due diligence. The petitioners, however, have an alternative remedy. Merely because there is a possibility of multiplicity of proceedings, the petitioners cannot be permitted to amend the plaint as and when they seek for the same. Moreover, as can be seen, even without a declaration in respect of XYRS Canal, the petitioners can prove the existence of the canal and interference of the defendants in the said canal and obtain injunction, which is the relief that the plaintiff seeks and needs in this case.
The other judgment relied upon M. Kamalamma v. B. Doraswamy Reddy (2) 2016 (2) ALT 244 : 2018 (1) ALD 634 also does not help the petitioners as there is no ruling to the effect that the principle of due diligence can be overlooked. Moreover, in the said case dealt with by the High Court in the above ruling the aspect of due diligence was discussed and it was found that due to the circumstances in the said case, it has to be held that the petitioners therein acted with due diligence, since a revision was found to be pending and the order in the revision became the cause of action for seeking the amendment.
In the above circumstances, this court opines that there is absolutely no reason to interfere with the impugned order.
In view of the above.