Telangana High Court
J.Ram Reddy vs K.Jyothi on 9 June, 2025
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE DR. JUSTICE G. RADHA RANI
CIVIL REVISION PETITION Nos.1245 & 1656 of 2022
COMMON ORDER:
C.R.P.No.1245 of 2022 is filed by the petitioner – plaintiff aggrieved by
the order dated 15.03.2022 passed in I.A.No.196 of 2022 in O.S.No.42 of 2015
by the learned XII Additional Chief Judge, City Civil Court, Secunderabad,
while, C.R.P.No.1656 of 2022 is filed by the defendants 1 and 2 against the
same order.
2. I.A.No.196 of 2022 is filed by defendants 1 and 2 under Order VI Rule
17 of CPC read with Rule 28 of Civil Rules of Practice to permit them to amend
the written statement filed by them and to carry out consequential amendments.
3. The plaintiff filed the suit for partition and separate possession of suit
schedule properties alleging that the same were joint family properties. The
defendants 1 and 2 filed written statement pleading that the father of defendant
No.1 late J.Chitta Reddy executed a registered Will deed dated 12.01.1981 vide
document No.2/1981 bequeathing all his properties including H.No.1-10-303 to
all his four sons i.e. defendant No.1 and his brothers namely Late J.Narayana
Reddy, Late J.Raji Reddy, and Mr.J.Narsimha Reddy. The defendant No.1
became absolute owner to an extent of one-fourth share in Ac.2-00 guntas of
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land in Survey No.50, Ac.1-30 guntas in Survey No.51, Ac.0-15 guntas in
Survey No.52 and Ac.1-13 guntas in Survey No.66 of Pedda Thokatta Village
and was in possession and enjoyment of the same. His eldest brother namely
late J.Narayana Reddy executed a registered release deed dated 09.12.1982 vide
document No.3026 of 1982 releasing his share in favor of his three brothers.
4. The defendant No.1 in the affidavit filed along with the petition under
Order VI Rule 17 of CPC stated that the original registered Will deed dated
12.01.1981 was in the custody of his elder brother Mr.J.Narsimha Reddy and he
came to know about the same two months ago. Earlier, he was under bonafide
impression that the original Will deed dated 12.01.1981 was with him and the
same could be produced at the time of his evidence. After thorough search, he
could not find the same and realized that the same was with his elder brother
Mr.J.Narsimha Reddy. As the said fact came to his knowledge at that juncture,
the same had to be incorporated in the written statement by way of amendment.
The proposed amendment related to real controversy in issue and was also
necessary due to subsequent developments, which were not to the knowledge of
the petitioner at the time of filing the written statement. He requested
Mr.J.Narsimha Reddy to furnish the original registered Will deed dated
12.01.1981 to enable him to file the same in the case. The said Mr.J.Narsimha
Reddy promised him to furnish the same, but, however, under the influence of
the plaintiff, started dodging the matter. In such circumstances, he addressed a
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registered letter dated 03.11.2021 through RPAD requesting his brother
Mr.J.Narsimha Reddy to provide him the original registered Will deed dated
12.01.1981, but he failed to respond. Such facts were subsequent events, which
could not be mentioned in the written statement filed by him. In the said
circumstances, the original Will deed could not be produced before the Court.
Already pleadings were set forth in the written statement with regard to
execution and registration of registered Will deed dated 12.01.1981. The
proposed amendment was merely an elaboration of such pleadings. No new
case was sought to be set up. The proposed amendment was related to real
controversy in issue. If the said amendment was allowed, no prejudice would
be caused to the respondent – plaintiff, on the other hand, the matter could be
effectively decided on merits and prayed to permit them to amend the written
statement filed by them and to carry out the necessary consequential
amendments in the original written statement of defendants 1 and 2.
5. The respondent – plaintiff filed counter contending that the alleged Will
was a forged and fabricated document. It was also false that there was an
alleged release Deed dated 09.12.1982. A false defence was taken by
defendants 1 and 2 about the execution of the alleged Will. In the written
statement filed by defendants 1 and 2 nothing had been stated about in whose
possession or custody, the original Will was. The defendants 1 and 2 could
have stated in their written statement the said fact. The suit was filed in the year
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2015 and the matter was pending before the Court for the past six years. If the
alleged original Will was in existence, the petitioner would have disclosed the
same in the written statement filed by him. No explanation was given in the
written statement. It was mandatory to mention about the existence /
non-existence of the alleged documents in the written statement. As per the
amended CPC, a party had to give explanation as to in whose possession the
document was. The petitioner had never chosen to give any explanation about
the original Will in the written statement or in whose possession the said
document was. After the written statement was filed by defendants 1 and 2 on
14.07.2015, the plaintiff filed a rejoinder on 14.12.2015. Subsequently, the
chief examination affidavit was filed by the plaintiff on 28.06.2017 and cross-
examination was also completed on 29.07.2021. Only after completion of
cross-examination of plaintiff, the petitioner had come up with the above
application. There could not be any amendment when the plaintiff’s evidence
was concluded and the matter was posted for defendants’ evidence conditionally.
Post trial amendments would affect the rights of the plaintiff and the same was
impermissible under law. The written statement filed by the defendant would
clearly demonstrate that the defendant was quite aware of the defence taken by
him in the written statement. As such, the defendants could not set up a case
after conclusion of the evidence that the original Will was with his brother. The
application for proposed amendment would affect the rights of the plaintiff.
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After the trial was commenced, an amendment petition could not be allowed on
the basis of vague, unsubstantiated claim made by the party that too after
conclusion of evidence of the plaintiff and prayed to dismiss the petition.
6. The trial court i.e. the learned XII Additional Chief Judge, City Civil
Court, Secunderabad, on considering the rival contentions observed that:
“7. The petitioners filed a written statement contending that late
Chitta Reddy executed a registered Will deed dated 12.01.1981
bequeathing all his properties. The contents of Will were also
mentioned in the written statement. As per Section 65(a) of
Indian Evidence Act “secondary evidence may be given, when
the original is shown or appears to be in the possession or
power of the person against whom the document is sought to be
proved, or of any person out of reach of, or not subject to, the
process of the Court, or of any person legally bound to produce
it, and when, after the notice mentioned in section 66, such
person does not produce it”.
In view of the above said law, if the contents of the petition are
considered, it is the contention of petitioner No.1 that he has
given notice to his elder brother to produce the Will, but he did
not produce the same. The Will is registered one. Therefore,
certified copy of the said Will is secondary evidence of the
original Will. As already discussed supra, petitioner No.1 gave
a notice to his elder brother to produce the same, who is legally
bound to produce it, but he did not produce the same inspite of
notice issued under Section 66 of Indian Evidence Act.
Therefore, certified copy of Will is admissible in law as
secondary evidence as per Section 65 of Indian Evidence Act.
For filing such certified copy of Will, just leave of the Court is
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sufficient and no amendment is required for giving the
explanation that the registered Will is in the hands of the elder
brother of petitioner No.1. Since the amendment is not
necessary, this Court is not inclined to allow the petition. I hold
this point accordingly.”
and dismissed the petition observing that the petitioner – defendant No.1
could mark the certified copy of the Will as secondary evidence and no
amendment was necessary for the said purpose.
7. Aggrieved by the said order passed by the learned XII Additional Chief
Judge, City Civil Court, Secunderabad, the plaintiff and defendants 1 and 2
preferred these revisions.
8. Heard Sri Srinivas Velagapudi representing defendants 1 and 2 and Sri
R.A.Achuthanand representing the plaintiff in O.S.No.42 of 2015.
9. Learned counsel for the defendants 1 and 2 contended that the court
below having favorably considered that the pleadings were set forth with regard
to execution and registration of registered Will deed dated 12.01.1981 in the
written statement and the proposed amendment was merely elaboration of such
pleadings and no new case was sought to be set up, ought to have allowed the
petition. The court below by order dated 15.03.2022 appreciated that the Will
dated 12.01.1981 could be received as secondary evidence, but erroneously held
that no amendment of written statement was required. The amendment was
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refused as not maintainable only on the premise that the same was not necessary
as a certified copy of the Will can be received as secondary evidence and relied
upon the judgments of the Hon’ble Apex Court in State of Bihar and Others v.
Modern Tent House and Another1, Gurbakhsh Singh and Others v. Buta
Singh and Another 2 , Life Insurance Corporation of India v. Sanjeev
Builders Private Limited and Another 3.
10. Learned counsel for the plaintiff on the other hand contended that the
defendant No.1 was aware about the defence put forth by the plaintiff. In fact,
no proper explanation was given to seek post trial amendment, as it was not a
matter of right between the parties. The court below failed to consider the scope
of amendment application filed under Order VI Rule 17 of CPC and in an
application for amendment of the written statement, an order could not be
passed, which was extraneous to Order VI Rule 17 of CPC. The court below
passed the order beyond the scope of the relief sought by defendant No.1 in the
proposed amendment. The court below ought not to have made an observation
directing defendant No.1 to file an application for secondary evidence, which
was extraneous for the purpose for which the application for amendment was
sought by defendant No.1. The order passed by the court below was beyond its
jurisdiction. In post trial amendment, a party had to show due diligence to
1
(2017) 8 SCC 567
2
(2018) 6 SCC 567
3
(2022) 16 SCC 1
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maintain an application for amendment. The defendant No.1 knew that his
defence would entirely rest on the alleged Will dated 12.01.1981. But there was
no whisper in the written statement as far as the proposed amendment was
concerned. The defendant No.1 had not stated anything about in whose
possession the original Will was. When there was no foundation laid in the
pleadings on record, the court below granting permission under Order VI Rule
17 of CPC to file another application for secondary evidence was against the
law and relied upon the judgments of the Hon’ble Apex Court in Ajendra
Prasadji N.Pandey and Another v. Swami Keshav Prakash Dasji N. And
Others 4, Chander Kanta Bansal v. Rajinder Singh Anand 5, Bachhaj Nahar
v. Nilima Mandal and Another 6 , M.Revanna v. Anjanamma (Dead) by
Legal Representatives and Others7 and of the High Court of Andhra Pradesh
at Amaravathi in Jonnala Subba Reddy v. Yerra Varaha Narasimham and 2
others8.
11. Now the point for consideration in these revisions is whether the order
passed by the trial court is in accordance with law or beyond its jurisdiction and
is liable to be set aside?
4
2006 SCC 12 1
5
(2008) 5 SCC 117
6
AIR 2009 SC 1103
7
AIR 2019 SC 940
8
C.R.P.No.420 of 2021 dated 15.07.2022
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12. Order VI Rule 17 of CPC deals with amendment of pleadings. It reads 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.
A proviso was added after the Civil Procedure Code (Amendment) Act,
2002 as follows:
Provided that no application for amendment shall be allowed
after the trial was commenced, unless the Court comes to the
conclusion that inspite of due diligence, the party could not
have raised the matter before the commencement of trial.
13. Thus, under Order VI Rule 17 of CPC, the plaintiff or defendants may at
any stage of the proceedings can file an application for amendment of plaint or
written statement. But under the proviso to Order VI Rule 17 of CPC, no
application for amendment shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that inspite of due diligence, the party
could not have raised the matter before the commencement of trial. The object
of bringing the amendment is to shorten the litigation and to speed up the
disposal of the suits.
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14. The Hon’ble Apex Court in Chander Kanta Bansal v. Rajinder Singh
Anand (cited supra), held that:
“The entire object of the amendment to Order VI Rule 17 of
CPC as introduced in 2002, is to stall filing of applications for
amending a pleading subsequent to the commencement of trial,
to avoid surprises and the parties had sufficient knowledge of
the others case. It also helps in checking the delays in filing the
applications. Once the trial commences on the known pleas, it
will be very difficult for any side to reconcile. In spite of the
same, an exception is made in the newly inserted proviso where
it is shown that in spite of due diligence, he could not raise a
plea, it is for the court to consider the same. Therefore, it is not
a complete bar nor shuts out entertaining of any later
application. The reason for adding proviso is to curtail delay
and expedite hearing of cases.
The proviso limits the power to allow amendment after the
commencement of trial but grants discretion to the court to
allow amendment if it feels that the party could not have raised
the matter before the commencement of trial in spite of due
diligence. It is true that the power to allow amendment should
be liberally exercised. The liberal principles which guide the
exercise of discretion in allowing the amendment are that
multiplicity of proceedings should be avoided, that
amendments which do not totally alter the character of an
action should be granted, while care should be taken to see that
injustice and prejudice of an irremediable character are not
inflicted upon the opposite party under pretence of amendment.
So whether a party has acted with due diligence or not, would
depend upon the facts and circumstances of each case. This
would, to some extent, limit the scope of amendment to
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crp_1245 & 1656_2022pleadings, but would still vest enough powers in courts to deal
with the unforeseen situations whenever they arise.”
Due diligence is also interpreted as follows:
“16. The words “due diligence” has not been defined in the
Code. According to Oxford Dictionary (Edition 2006), the
word “diligence” means careful and persistent application or
effort. “Diligent” means careful and steady in application to
one’s work and duties, showing care and effort. As per Black’s
Law Dictionary (Eighth Edition), “diligence” means a continual
effort to accomplish something, care; caution; the attention and
care required from a person in a given situation. “Due
diligence” means the diligence reasonably expected from, and
ordinarily exercised by, a person who seeks to satisfy a legal
requirement or to discharge an obligation. According to Words
and Phrases by Drain-Dyspnea (Permanent Edition 13-A) “due
diligence”, in law, means doing everything reasonable, not
everything possible. “Due diligence” means reasonable
diligence; it means such diligence as a prudent man would
exercise in the conduct of his own affairs.”
15. In M.Revanna v. Anjanamma (Dead) by Legal Representatives and
Others (cited supra) also, the Hon’ble Apex Court held that:
“Leave to amend may be refused if it introduces a totally
different, new and inconsistent case, or challenges the
fundamental character of the suit. The proviso to Order VI Rule
17 of the CPC virtually prevents an application for amendment
of pleadings from being 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 the trial. The proviso, to an extent, curtails
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crp_1245 & 1656_2022absolute discretion to allow amendment at any stage. Therefore,
burden was on the person who sought an amendment after
commencement of the trial to show that inspite of due diligence,
such an amendment could not have been sought earlier. There
cannot be any dispute that an amendment cannot be claimed as
a matter of right, and under all circumstances. Though normally
amendments are allowed in the pleadings to avoid multiplicity
of litigation, the Court needs to take into consideration whether
the application for amendment is bona fide or mala fide and
whether the amendment causes such prejudice to the other side
which cannot be compensated adequately in terms of money.”
16. The High Court of Andhra Pradesh at Amaravathi in Jonnala Subba
Reddy v. Yerra Veraha Narasimham & 2 Others (cited supra) also after
considering the judgments of the Hon’ble Apex Court in Salem Advocates Bar
Association, Tamil Nadu v. Union of India [AIR 2005 SC 3353] and
J.Samuel and Others v. Gattu Mahesh and Others [(2012) 2 SCC 300], held
that:
“12. A conspectus of the above referred case Law would go to
show that exercise of due diligence is a ‘Sine qua non’ for
considering the application for the amendment of pleadings
after commencement of Trial and the Court has to come to a
conclusion that even after exercise of said due diligence, the
party could not have raised the matter before commencement of
trial.”
18. In J.Samuel and Others v. Gattu Mahesh and Others
[(2012) 2 SCC 300] case, the Hon’ble Apex Court laid down
certain tests as to what was ‘due diligence’ with reference to
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Order VI Rule 17 of CPC and proviso thereto and held as
follows:
“13. Due diligence is the idea that reasonable
investigation is necessary before certain kinds of
relief are requested. Duly diligent efforts are a
requirement for a party seeking to use the
adjudicatory mechanism to attain an anticipated
relief. An advocate representing someone must
engage in due diligence to determine that the
representations made are factually accurate and
sufficient. The term `Due diligence’ is
specifically used in the Code so as to provide a
test for determining whether to exercise the
discretion in situations of requested amendment
after the commencement of trial.
14. A party requesting a relief stemming out of a
claim is required to exercise due diligence and is
a requirement which cannot be dispensed with.
The term “due diligence” determines the scope
of a party’s constructive knowledge, claim and is
very critical to the outcome of the suit”
“19. The word “due diligence” is not exactly defined by the Act,
but in Bharat Petroleum Corporation Ltd. v. Precious
Finance Investment Pvt. Ltd., [2006 (6) BomCR 510], the
Apex Court held as follows:
“The Dictionary meaning of the expression “due
diligence” as given in the Blacks Law
Dictionary, Sixth Edition, 1990 means “Such a
measure of prudence, activity or assiduity, as is
properly to be expected from, and ordinarily
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crp_1245 & 1656_2022exercised by, a reasonable and prudent man
under the particular circumstances; not
measured by any absolute standard, but
depending on the relative facts of the special
case.” Similarly the Law Lexicon by P.
Ramanatha Aiyer, Second Edition (Reprint)
2001 explains “due diligence” to mean such
watchful caution and foresight as the
circumstances of the particular case demands.
While examining the explanation offered or
cause shown as to why in spite of due diligence
a party could not have raised the matter before
commencement of trial, the Court may have to
see the circumstances in which the party is
seeking amendment. In short the explanation as
to “due diligence” depends upon the particular
circumstances and the relative facts of each case
to reach a conclusion one way or the other.”
20. In Chander Kanta Bansal v. Rajinder Singh Anand
[(2008) 5 SCC 117], taking note of the object and purpose of
Amendment Act 22 of 2002, the Supreme Court held that, the
entire object of the said amendment is to stall filing of
applications for amending a pleading subsequent to the
commencement of trial, to avoid surprises and to ensure that
one party has sufficient knowledge of the case of the other
party.
21. In view of the tests laid down by the Apex Court in the
judgments referred supra as to what amounts to exercise of ‘due
diligence’, the petitioner in the present case did not aver
anything in the entire affidavit as to how she exercised due
diligence and despite exercise of due diligence, she could not
bring those facts on record before commencement of trial.
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When the petitioner did not raise such plea in the affidavit filed
along with this petition, the question of substantiating the same
does not arise and in fact, both the parties went into trial,
despite denial of title of this petitioner by the respondents about
10 years ago. Suggestions were also put to the witnesses
denying the title of the petitioner. But, they did not open their
eyes and slept over for a considerable period of time and when
defendants witnesses are to be cross- examined, the petitioner
realized the mistake she committed in seeking relief and filed
petition under Order VI Rule 17 C.P.C to raise a plea that the
document sued upon is fabricated, though a specific plea is
raised that the document is created one, without explaining as
to how she exercised due diligence and failed to take such steps.
22. If, the tests laid down in the two judgments referred supra,
are applied to the present facts of the case, this petitioner as an
ordinary prudent woman failed to take necessary steps before
commencement of trial. Failure to take steps at an earlier stage
without exercise of due diligence, disentitled her to claim such
relief. Therefore, on this ground alone, this petition is liable to
be dismissed.
23. Unless the petitioner satisfied the Court that, despite
exercise of due diligence, she could not have brought the facts
on record before commencement of trial. The amendment
cannot be allowed as a matter of routine.
24. Further, in “Mohinder Kumar Mehra v. Roop Rani
Mehra & Ors [AIR 2017 SC 5822]”, it was held that, the
proviso to Order VI Rule 17 prohibits the entertainment of an
amendment application after the commencement of the trial
with the sole object that once the parties proceed with the
leading of evidence then ordinarily no new pleading should be
permitted to be introduced.”
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17. In the judgments relied by the learned counsel for defendants 1 and 2, the
Hon’ble Apex Court in State of Bihar and Others v. Modern Tent House and
Another (cited supra) permitted the appellants (defendants) to amend their
written statement and to incorporate the amendment as prayed in the application
observing that:
“7. It is not in dispute that the suit filed by the respondents
against the appellants out of which this appeal arises is still
pending. It is also not in dispute that the evidence of the parties
is not yet over. In other words, the trial in the suit is going on.
8. We have perused the amendment application filed by the
appellants. We find that firstly, the proposed amendment is on
facts and the appellants in substance seek to elaborate the facts
originally pleaded in the written statement; secondly and in
other words, it is in the nature of amplification of the defense
already taken; thirdly, it does not introduce any new defense
compared to what has originally been pleaded in the written
statement; fourthly, if allowed, it would neither result in
changing the defense already taken nor will result in
withdrawing any kind of admission, if made in the written
statement; fifthly, there is no prejudice to the plaintiffs, if such
amendment is allowed because notwithstanding the defense
or/and the proposed amendment, the initial burden to prove the
case continues to remain on the plaintiffs; and lastly, since the
trial is not yet completed, it is in the interest of justice that the
proposed amendment of the defendants should have been
allowed by the Courts below rather than to allow the defendants
to raise such plea at the appellate stage, if occasion so arises.”
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18. In Gurbakhsh Singh and Others v. Buta Singh and Another (cited
supra), the Hon’ble Apex Court while considering that the nature of amendment
as proposed neither changes the character and nature of the suit nor does it
introduce any fresh ground opined that the amendment ought to have been
allowed.
19. The Hon’ble Apex Court specifically held that:
“6. While allowing amendment of plaint, after amendment of
2002, this Court in circumstances similar to the present case, in
Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors. [(2012)
11 SCC 341], had observed:
“11. The original provision was deleted by
Amendment Act 46 of 1999, however, it has
again been restored by Amendment Act 22 of
2002 but with an added proviso to prevent
application for amendment being 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. The above proviso,
to some extent, curtails absolute discretion to
allow amendment at any stage. At present, if
application is filed after commencement of trial,
it has to be shown that in spite of due diligence,
it could not have been sought earlier. The object
of the rule is that 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
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crp_1245 & 1656_2022controversy between the parties provided it does
not cause injustice or prejudice to the other side.
This Court, in a series of decisions has held that
the power to allow the amendment is wide and
can be exercised at any stage of the proceeding
in the interest of justice. The main purpose of
allowing the amendment is to minimize the
litigation and the plea that the relief sought by
way of amendment was barred by time is to be
considered in the light of the facts and
circumstances of each case. The above
principles have been reiterated by this Court in J.
Samuel & Others v. Gattu Mahesh and
Others [(2012) 2 SCC 300] and Rameshkumar
Agarwal v. Rajmala Exports (P) Ltd and
Others [(2012) 5 SCC 337]. Keeping the above
principles in mind, let us consider whether the
appellants have made out a case for
amendment.”
20. In Life Insurance Corporation of India v. Sanjeev Builders Private
Limited and Another (cited supra), the Hon’ble Apex Court held that:
“25. The principles applicable to the amendments of the plaint
are equally applicable to the amendments of the written
statements. The courts are more generous in allowing the
amendment of the written statement as question of prejudice is
less likely to operate in that event. The defendant has a right to
take alternative plea in defense which, however, is subject to an
exception that by the proposed amendment other side should
not be subjected to injustice and that any admission made in
favor of the plaintiff is not withdrawn. All amendments of the
pleadings should be allowed which are necessary for
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crp_1245 & 1656_2022determination of the real controversies in the suit provided the
proposed amendment does not alter or substitute a new cause of
action on the basis of which the original lis was raised or
defence taken. Inconsistent and contradictory allegations in
negation to the admitted position of facts or mutually
destructive allegations of facts should not be allowed to be
incorporated by means of amendment to the pleadings. The
proposed amendment should not cause such prejudice to the
other side which cannot be compensated by costs. No
amendment should be allowed which amounts to or relates in
defeating a legal right accruing to the opposite party on account
of lapse of time. The delay in filing the application for
amendment of the pleadings should be properly compensated
by costs and error or mistake which, if not fraudulent, should
not be made a ground for rejecting the application for
amendment of plaint or written statement. (See South Konkan
Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors.,
[(2008) 14 SCC 632].
26. But undoubtedly, every case and every application for
amendment has to be tested in the applicable facts and
circumstances of the case. As the proposed amendment of the
pleadings amounts to only a different or an additional approach
to the same facts, this Court has repeatedly laid down the
principle that such an amendment would be allowed even after
the expiry of statutory period of limitation.”
and in the final conclusion summed up thus:
“71.1. Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of pleadings
falls far beyond its purview. The plea of amendment being
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crp_1245 & 1656_2022barred under Order II Rule 2 CPC is, thus, misconceived and
hence negatived.
71.2. All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word “shall”, in
the latter part of Order VI Rule 17 of the CPC.
71.3. The prayer for amendment is to be allowed:
71.3.1. If the amendment is required for effective and proper
adjudication of the controversy between the parties, and71.3.2. To avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not
seek to withdraw any clear admission made by the party which
confers a right on the other side and
(c) the amendment does not raise a time barred claim, resulting
in divesting of the other side of a valuable accrued right (in
certain situations).
71.4. A prayer for amendment is generally required to be
allowed unless:
71.4.1. By the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be time
barred becomes a relevant factor for consideration,71.4.2. The amendment changes the nature of the suit,
71.4.3. The prayer for amendment is malafide, or
71.4.4. By the amendment, the other side loses a valid defence.
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71.5. In dealing with a prayer for amendment of pleadings, the
court should avoid a hyper-technical approach, and is ordinarily
required to be liberal especially where the opposite party can be
compensated by costs.
71.6. Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should be
allowed.
71.7. Where the amendment merely sought to introduce an
additional or a new approach without introducing a time barred
cause of action, the amendment is liable to be allowed even
after expiry of limitation.
71.8. Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
71.9. Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable, the
prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit or
the cause of action, so as to set up an entirely new case, foreign
to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only
with respect to the relief in the plaint, and is predicated on facts
which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
71.11. Where the amendment is sought before commencement
of trial, the court is required to be liberal in its approach. The
court is required to bear in mind the fact that the opposite party
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would have a chance to meet the case set up in amendment. As
such, where the amendment does not result in irreparable
prejudice to the opposite party, or divest the opposite party of
an advantage which it had secured as a result of an admission
by the party seeking amendment, the amendment is required to
be allowed. Equally, where the amendment is necessary for the
court to effectively adjudicate on the main issues in controversy
between the parties, the amendment should be allowed. (See
Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC
OnLine Del 1897).”
21. In the light of the principles enunciated by the Hon’ble Apex Court in all
these cases, the facts of the case need to be looked into.
22. The defendants 1 and 2 have taken a plea in the written statement that the
suit schedule properties were not joint family properties and that the father of
defendant No.1 late J.Chitta Reddy executed a Will in favor of his four sons.
The defendant No.1 became absolute owner of the said properties by virtue of
the registered Will executed by his father. As such, the same was of self-
acquired status and would not become Hindu Undivided Family property by any
stretch of imagination. He was entitled to sell such lands to third parties and
reinvest the sale proceeds to acquire further property and the same were his self-
acquired property. The plaintiff was not having any right of whatsoever nature
in the suit properties. The said written statement was filed on 14.07.2015 by
defendants 1 and 2.
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23. The plaintiff filed a rejoinder to the said written statement contending that
the alleged Will was inadmissible in evidence. The defendants 1 and 2 had filed
certified copies of the alleged Will and proceedings before the Court, but failed
to produce the original alleged Will before the Court. The certified copies of
the Will were inadmissible in evidence. She contended that the alleged Will
filed by defendants 1 and 2 and partition was inadmissible in evidence for want
of production of original documents. The said document could not be received
in evidence. The document had no legal validity. There was no attestation of
the document as required under Section 63 of the Indian Succession Act, 1925.
All unprivileged Wills should be inconsonance with the legal mandate as
required under Section 63 of the Indian Succession Act, 1925. It was a void
document and the defendant No.1 could not claim that he was the absolute
owner of the property by virtue of a void document. There was a legal
provision as to the mode of attestation provided under the provisions of the
24. The said rejoinder was filed by the plaintiff on 14.12.2015. Thereafter
trial commenced and the cross-examination of the plaintiff was completed on
29.07.2021. The evidence of the plaintiff was closed on 22.10.2021 and the
matter was posted for the evidence of defendants 1 and 2. The defendants had
taken several adjournments and had filed the present petition for amendment of
their pleadings on 21.01.2022. Thus, for more than six years, they kept silent
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without filing the original Will or stating as to in whose possession the original
Will was. Only in the petition filed by them under Order VI Rule 17 of CPC
read with Rule 28 of Civil Rules of Practice, they stated that the original Will
was in the custody of the elder brother of defendant No.1 by name
Mr.J.Narsimha Reddy and that defendant No.1 came to know about the said fact
only two months prior to filing of the petition. He was under the bonafide
impression that the original Will was with him. After thorough search, could
not find the same and realized that it was with his elder brother Mr.J.Narsimha
Reddy, as such issued a notice to him to produce the original Will on
03.11.2021 and that he failed to respond to the same.
25. This plea taken by him would show that he had not verified whether he
was in possession of the original Will or not though the plaintiff had filed
rejoinder in the year 2015 itself that a certified copy of the Will was
inadmissible in evidence for want of production of original documents. It
would show that defendants 1 and 2 had not acted diligently and there was no
due diligence on their part as stated by the Hon’ble Apex Court in the above
cases, what “due diligence” means.
26. The defendants 1 and 2 were aware that their entire case depended upon
the alleged Will dated 12.01.1981 to prove the nature of suit schedule properties.
But no due diligence was exercised by them for a period of six years for
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verifying in whose possession the original Will was and to bring the said
pleadings before the Court. Filing the petition after commencement of trial that
too after the evidence of plaintiff was closed shows the lack of due diligence on
their part. When no due diligence was exercised by the party, the Court ought
not to have allowed the amendment application.
27. The trial court instead made observations, which were extraneous to the
relief sought. The trial court giving directions to defendant No.1 to mark the
certified copy of the Will as secondary evidence, is un-called for. The Hon’ble
Apex Court in Bachhaj Nahar v. Nilima Mandal and Another (cited supra)
held that:
“A Court cannot make out a case not pleaded. The court should
confine its decision to the question raised in pleadings. Nor can
it grant a relief which is not claimed and which does not flow
from the facts and the cause of action alleged in the plaint,
which violates the fundamental rules of civil procedure.
When the facts necessary to make out a particular claim, or to
seek a particular relief, are not found in the plaint, the court
cannot focus the attention of the parties, or its own attention on
that claim or relief, by framing an appropriate issue. As a result
the defendant does not get an opportunity to place the facts and
contentions necessary to repudiate or challenge such a claim or
relief. Therefore, the court cannot, on finding that the plaintiff
has not made out the case put forth by him, grant some other
relief. The question before a court is not whether there is some
material on the basis of which some relief can be granted. The
question is whether any relief can be granted, when the
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crp_1245 & 1656_2022defendant had no opportunity to show that the relief proposed
by the court could not be granted. When there is no prayer for a
particular relief and no pleadings to support such a relief, and
when defendant has no opportunity to resist or oppose such a
relief, if the court considers and grants such a relief, it will lead
to miscarriage of justice. Thus it is said that no amount of
evidence, on a plea that is not put forward in the pleadings, can
be looked into to grant any relief.”
28. When the petition is filed for amendment of written statement, the Court
has to consider whether the amendment is permissible or not under Order VI
Rule 17 of CPC, but cannot go beyond the scope of the petition and cannot
direct the parties to mark the certified copy of the Will as secondary evidence,
which shows that the order passed by the Court is beyond its jurisdiction. As
such, the same is erroneous and was liable to be set aside.
29. In the result, C.R.P.No.1245 of 2022 is allowed setting aside the order of
the learned XII Additional Chief Judge, City Civil Court, Secunderabad in
I.A.No.196 of 2022 in O.S.42 of 2015 dated 15.03.2022 and C.R.P.No.1656 of
2022 filed by defendants 1 and 2 is dismissed. No order as to costs.
As a sequel, miscellaneous applications pending in both these revision
petitions, if any, shall stand closed.
_____________________
Dr. G.RADHA RANI, J
Date: 09.06.2025
Nsk.