Skip to content


Rudraraju Durgaraju and anr. Vs. Sagiraju Dadda Venkataraju and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 229 of 1877
Judge
Reported inAIR1979AP14
ActsCode of Civil Procedure (CPC),1908- Order 6, Rule 17
AppellantRudraraju Durgaraju and anr.
RespondentSagiraju Dadda Venkataraju and ors.
Appellant AdvocateT. Veerabhadrayya, Adv.
Respondent AdvocateP. Sitaramaraju, Adv.
Excerpt:
.....dismissed by tribunal stating cause of action was different from one which was found in original suit - appeal before high court - court found that no doubt cause of action was different - in case amendment not allowed parties shall have to driven to otherwise avoidable separate suit - amendment was necessary for determination of real question in controversy - amendment application allowed. - - the amendment introduced a new ground of claim (than the one) which was specifically prayed before the high court to be kept open and the character of the suit as well as the subject matter and the cause of action will be altered by virtue of the amendment and the plea taken in the amendment also is inconsistent with the one already taken in the plaint, go holding, the learned district..........legal representative smt rudraraju bangarayya the 4th defendant became absolutely entitled to the suit property, and on her death on 5-31974 the suit properties devolved on the plaintiffs as sole heirs, with absolute rights, and the defendants have no right to question the same or interfere with their rights, title, possession or enjoyment of the same.'9. the learned district judge, after considering the entire matter, held that there was inordinate delay in filing the application for amendment. the amendment introduced a new ground of claim (than the one) which was specifically prayed before the high court to be kept open and the character of the suit as well as the subject matter and the cause of action will be altered by virtue of the amendment and the plea taken in the amendment.....
Judgment:
ORDER

1. This revision by the plaintiffs under Sec. 115 of the Code of Civil Procedure is directed against the order dated January 25, 1977 made in I. A. No. 599 of 1976 in A. S. No. 89 of 1970 on the file of the District Judge's Court, West Godavari at Eluru.

2. Dismissal by the court below of a petition by the 1st petitioner under Order 6 Rule 17 C.P.C, seeking the amendment of the plaint is the occasion for the filing of the above revision petition.

3. The 1st petitioner filed suit O. S. No. 71/67 on the file of the Subordinate Judge's Court, Eluru for a declaration of his title to the property in question and for injunction. He claimed the property under registered will dated January 19, 1981 (Ex. 1) executed by his maternal grandmother S. Bangarayya who died on September 4, 1961. Defendants 1 to 3 claimed reversionary rights in the property. 4th defendant is the mother at the 1st plaintiff. Defendants 1 to 3 contested the suit stating that Bangarayya has only a limited interest in the property in question and after her death they are entitled to the property and that Bangarayya has no right to bequeath the property by a will. It is also their further contention that the will dated January 19, 1967 was not true and it was not binding and as reversioners of Bangarayya, they are entitled to the property in question. The 4th defendant did not contest the suit. She supported the plaintiff.

4. The trial court held that the limited interest of Bangarayya was enlarged into an absolute estate under Sec. 14 of the Hindu Succession Act. But for the will the 4th defendant could have been entitled to the property and defendants 1 to 3 could not be entitled to the property. The will was found to be true and valid. Therefore. the suit was decreed by the trial Court on September 26, 1969

5. Defendants 1 to 3 preferred an appeal A. S. No, 88 of 1970. That appeal was dismissed on October 3. 1972. Thereafter, the 1st defendant preferred a second appeal before this court i e, S A. No, 295 of 1974. During the pendency of the second appeal the 4th defendant died on March 5, 1974. The plaintiff was declared as her legal representative.

6. while disposing of the second appeal, Venkatrama Sastri, J. held that finding of the appellate court with respect to the truth and validity of the will was not satisfactory and therefore the matter was remanded to the court below for fresh disposal. As regards the question of applicability of Section 14 of the Hindu Succession Act, at the instance of the counsel on either side, that question was kept open.

7. After the matter was remanded back the petition giving rise to the above revision was filed on June 15, 1976, seeking the amendment of the plaint. The appeal after remand was received in the court below on December 20, 1975. Subsequent to the remand, the 2nd defendant died and her legal representatives were brought on record as appellants Nos. 4 to 13 as per the order in I.A. No. 244/76. Though Mangamma died during the pendency of the second appeal and the 1st petitioner was recorded as her legal representative, the sister of the 1St petitioner was not brought an record as the legal representative of the 4th defendant.

8. The material part of the amendment sought for by the petitioner reads thus :

'Assuming without admitting that the Hon'ble Court finds that the will dated 19-1-1967 is not proved, still on the death of Sagiraju Bangarayya on 4-9 1987, her only legal representative Smt Rudraraju Bangarayya the 4th defendant became absolutely entitled to the suit property, and on her death on 5-31974 the suit properties devolved on the plaintiffs as sole heirs, with absolute rights, and the defendants have no right to question the same or interfere with their rights, title, possession or enjoyment of the same.'

9. The learned District Judge, after considering the entire matter, held that there was inordinate delay in filing the application for amendment. The amendment introduced a new ground of claim (than the one) which was specifically prayed before the High Court to be kept open and the character of the suit as well as the subject matter and the cause of action will be altered by virtue of the amendment and the plea taken in the amendment also is inconsistent with the one already taken in the plaint, go holding, the learned District Judge dismissed the application for amendment. Hence this revision.

10. Sri T. Veerabhadraiah, learned counsel appearing for the petitioner contended for the position that the main relief claimed both in the original plaint as well as in the amendment is the same, that being one relating to the title of the property in question. All the parties are on record. No new case is sought to be introduced. Only a new ground is sought to be urged in support of the relief already claimed and with a view to avoiding multiplicity of proceedings, powers under Order 6 Rule 17, C. P. C. should have been exercised by the court below in favour of the petitioner. It is also further contended by Sri Veerabhadraiah that events taken place subsequent to the institution of the suit shall have to be taken into consideration

11. The learned counsel cited certain decisions stating the circumstances under which an amendment should be allowed.

12. Without disputing the prepositional position sought to be put forth on the basis of the decisions cited by the learned counsel for the petitioner Sri Sitarama Raju, learned counsel for the respondents stated that the application for amendment is hopelessly belated and the matter that was given up at High Court level. the petitioners should not be permitted to reagitate it once again.

13. The point therefore that arises for consideration is whether the amendment sought for by the petitioners under Order 6 Rule 17, C.P. C. on the basis of the events happening subsequent to the institution of the suit should be allowed?

14. As per Order 6 Rule 17, C P. C. the court has been given power at any stage of the proceedings to allow either party to amend the pleadings and such an amendment should be made only when it is necessary for the purpose of determining the real questions in controversy between the parties.

15. The real question in controversy between the parties is whether the plaintiffs are entitled to the property in question under the will or as reversioners to their mother after her death took place subsequent to the institution of the suit. The 1st petitioner would be entitled for the property in question on the basis of the will Ex. A-1 executed by his maternal grand-mother. If for my reason the will is found to be bad in law the death of the testatrix furnishes him with another ground for claiming the property in question.

16. Therefore, in the first place, no objection can be taken as regards the stage at which the amendment of this type can be sought for. To be fair to the learned counsel for the respondents, he did not object to that aspect of the matter.

17. In A. N. Shah V. Annapurnamma : AIR1959AP9 a Division Bench of this Court held that in proper cases, the court is entitled to take note of the subsequent events and grant relief to the parties if by so doing, it can shorten litigation and best attain the ends of justice. This power can be exercised by the court of appeal as an appeal is only in the nature of rehearing.

18. Justice Raghavan in Velammalv, C. Gounder, : AIR1971Mad469 made the following pertinent observation at page 410 with respect to the circumstances under which an amendment can be allowed.

'The suit as originally filed was one for maintenance and the cause of action for the suit was the husband's neglect to maintain the plaintiffs. By reason of the husband's death, the right of the plaintiffs has enlarged giving rise to claim for partition and separate possession of a half share as and from the date of the death of the husband. Ordinarily the decree in a suit should accord with rights of the parties as they stand at the date of the institution of the suit; But where it is shown that the original relief claimed has by reason of the subsequent change of circumstances become inappropriate or that it is necessary to have a decision of the court on altered circumstances in order to shorten the litigation or to do complete justice between the parties, it is incumbent up an the court to take note of the altered circumstances which happened subsequent to the filing of the suit, and mould its decree according to the circumstances at the time the decree is made.

In the present instance, the plaintiffs claimed future maintenance and after the death of the first defendant no decree for maintenance subsequent to the date of his death could be granted as the plaintiffs will be entitled to higher right namely one of partition. In order therefore to facilitate the gram of a decree and shorten the litigation it is just and necessary that the amendment is ordered'

19. The Supreme Court in Shikharchand v. D.J.P. Karini Sabha, : [1974]3SCR101 observed at p.1182:

'Ordinarily, a suit is tried in all its stages on the cause of action as is existed on the date of its institution. But it is open to a Court including a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation or (3) to do complete justice between the parties (See Rai Charan v. Biswanath, AIR 1915 Cal 103)'.

20. P. Venkateswarllu v. Motor & General Traders : [1975]3SCR958 is a case where is was held that the High Court in revision is bound to take note of subsequent events in disposing of under the Andhra Pradesh Buildings (Lease, Rent and Eviction) control Act, 1960.

21. What therefore follows from the fore going discussion is that the power conferred upon the court to permit amendments of the pleadings can be exercised at any stage of the proceedings. That power is conferred with a view to securing the determination of the real issues in controversy between parties. The foundation for the civil proceedings, the changed or altered circumstances or events may give rise to different causes of action specially when the relief sought for remains substantially the same. Even in that case also, the Court is empowered to exercise its discretion in such a way as to permit the amendment introducing, if needs be. a new cause of action also. These powers are conferred upon the Court with a view to facilitating the shortening of otherwise avoidable prolonged litigation proceedings and that is also needed in the interests of administration of justice.

22. We shall now judge the facts of the case in the light of the foregoing propositions position. The 1st plaintiff instituted that the suit for a declaration of his title and for injunction with respect to the property in question on the ground that he is entitled for the same on account of the will executed by his maternal grandmother. The truth of the validity of the will was questioned. During in the pendency of the proceedings, particularly at the second appeal stage, 4th defendant, the mother of the 1st plaintiff died. 4th defendant was supposed to be the legal heir of the testatrix of the will Ex. A-1 and therefore, subsequent to the death of 4th defendant, the persons who were entitled to the property in question are 1st plaintiff and his sister, the 2nd plaintiff. The cause of action no doubt is different from the one found in the original suit itself. If the amendment is not to be allowed, the parties shall have to be driven to otherwise avoidable separate suit. If it is amended, it results in the shortening of the proceedings also. The amendment is necessary for the determination of the real questions in controversy.

23. But the only point argued by the learned counsel for the respondents is that the paint specifically given up by the counsel on either side during the course of second appeal should not be permitted to be formulated as a subject matter of the amendment. It is not as if that aspect of the matter results in their relinquishment or abandonment of the right accrued otherwise to the parties concerned Therefore, that circumstance may not have any impact upon the rights of the parties.

24. I am therefore of the opinion that in the interests of justice and with view to avoiding otherwise avoidable multiplicity of proceedings and with a view to shortening the litigation, the amendment sought for should have been allowed.

25. The decision of the Court below is therefore set aside. The sought for amendment is allowed.

26. The civil revision petition is there fore allowed, but, in the circumstances, without costs.

27. Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //