Andhra Pradesh High Court – Amravati
Pothuraju Subba Rao vs Vellanki Venkatadri on 2 April, 2025
`1HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
I.A.NO.1 OF 2022
IN
SECOND APPEAL NO.402 OF 2011
O R D E R:
The petitioner herein is the appellant in the second appeal. The
petitioner filed this application under Order VI, Rule 17 of the Code of Civil
Procedure, with a prayer to convert the suit for permanent injunction into the
relief of declaration of title and consequential injunction as sought by the
petitioner/appellant in the present application filed by petitioner.
2. The case of the petitioner/appellant herein is that the petitioner herein
instituted a suit in O.S.No.786 of 2004, on the file of II Additional Junior Civil
Judge, Vijayawada (“trial Judge” for short), for seeking relief of permanent
injunction for making construction of building without leaving space by
affecting free flow of air and light and also from enjoying the joint passage for
his ingress and aggress to reach M.G. Road through Darsivari Street. The
petitioner/appellant herein is the plaintiff in the suit and he instituted a simple
suit for permanent injunction in the year 2004. On considering the entire
evidence on record, the learned trial Judge came to conclusion that a suit for
injunction as regards the usage of a passage in the absence of any relief for
declaration is not maintainable and that the plaintiff is not entitled the relief
and the learned trial Judge also further came to conclusion that the plaintiff
has instituted the suit merely on apprehension that the proposed construction
of defendants will cause hindrance to his free flow of air and light to his
building. By giving the said findings, the learned trial Judge dismissed the suit
filed by the plaintiff i.e., the petitioner/appellant herein on merits on
12.08.2008. Aggrieved against the said decree and judgment passed by the
learned trial Judge, the petitioner herein preferred an appeal suit in
A.S.No.159 of 2008 before the IV Additional District & Sessions Judge at
Vijayawada. The said appeal suit was dismissed by the learned IV Additional
District & Sessions Judge at Vijayawada in the year 2011 on merits confirming
2
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
the findings arrived by the learned trial Judge. Soon after dismissal of the
appeal suit in the year 2011, the second appeal has been preferred by the
appellant in the year 2011. The petitioner/appellant also raised the substantial
question of law in the second appeal in the year 2011 that whether a suit for
perpetual injunction is not maintainable without seeking relief of any
declaration as to right of passage.
3. Heard the learned counsel on both sides.
4. As seen from the material on record, because of un-readiness of
submission of final hearing by the appellant in the second appeal from 2018
onwards the second appeal of the year 2011 has been adjourned from time to
time. The petitioner herein filed the present application for seeking
amendment that too after institution of 11 years of the second appeal.
5. Learned counsel for the petitioner/appellant placed a reliance of
Ganesh Prasad vs. Rajeshwar Prasad and others1, wherein the Apex Court
held as follows:
“In the case of P.A. Jayalakshmi v. H. Saradha and Others reported in
(2009) 14 SCC 525, the above observations were reiterated by this
Court and in the light of the same, this Court in para 9 held as under:
“9. By reason of the Code of Civil Procedure (Amendment) Act, 1976,
measures have been taken for early disposal of the suits. In furtherance of
the aforementioned parliamentary object, further amendments were carried
out in the years 1999 and 2002. With a view to put an end to the practice of
filing applications for amendments of pleadings belatedly, a proviso was
added to Order 6 Rule 17 which reads as under:
“17. Amendment of pleadings.–The court may at any stage of the
proceedings allow either party to alter or amend his pleading 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.””
1
2023 SCC OnLine SC 256
3
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
In the aforesaid case law, the Apex Court further held as follows:
In one of the recent pronouncements of this Court, in the case of Life
Insurance Corporation of India v. Sanjeev Builders Private Limited and
another, Civil Appeal No. 5909 of 2022 dated 01.09.2022, the position
of law has been explained as under:
“70. …(ii) 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.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the
controversy between the parties, and
(ii) 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).
(iv) A prayer for amendment is generally required to be allowed unless
(i) 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,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) 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.
(vi) 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.
(vii) 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.
4
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
(viii) Amendment may be justifiably allowed where it is intended to rectify the
absence of material particulars in the plaint.
(ix) 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.
(x) 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.
(xi) 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 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)”
In the case on hand, the suit has been instituted by the petitioner/
appellant in the year 2004 before the trial Court. On considering the entire
material on record, the learned trial Judge dismissed the suit on 12.08.2008
on merits and against the said finding, the petitioner/appellant herein preferred
an appeal suit in A.S.No.159 of 2008 in the year 2008 before the IV Additional
District & Sessions Judge at Vijayawada and the said appeal suit was also
dismissed on merits on contest of both sides in the year 2011. Having
defeated in both the Courts, the petitioner/appellant herein preferred second
appeal in S.A.No.402 of 2011. Because of un-readiness of the appellant for
submission of final hearing till 2022, the second appeal has been adjourned
from time to time and in the month of July, 2022 i.e., on 08.07.2022 the
petitioner/appellant come up with the present application that too at the stage
of final hearing with a prayer that he wants to convert the suit for bare
injunction into declaration of title and consequential relief of permanent
injunction.
5
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
6. As stated supra, the appellant raised a substantial question of law in
the present second appeal itself in the year 2011 that whether a suit for
perpetual injunction is not maintainable without seeking any relief of
declaration of title as to right of passage. Admittedly, the petitioner/appellant
has not filed any petition for seeking amendment of conversion of suit of
permanent injunction into declaration of title during the pendency of the suit
before the trial Court or during the pendency of the appeal suit before the First
Appellate Court or during the pendency of the second appeal before this Court
from 2004 onwards till the year 2022.
7. The law is well settled that an application for amendment may be
rejected if it seeks to introduce totally different, new and inconsistent case or
changes the fundamental character of the suit. Order VI Rule 17 of the Code
of Civil Procedure prevents an application for amendment after the trial has
commenced unless the Court comes to the conclusion that despite due
diligence the party could not have raised the issue. It is also further clear that
the burden is on the party seeking amendment after commencement of trial to
show that in spite of due diligence such amendment could not be sought
earlier.
8. In a case of Basavaraj vs. Indira and others2, the Apex Court held
as follows:
“The burden is on the person who seeks an amendment after
commencement of the trial to show that in spite 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.”
In a case of Revajeetu Builders and Developers vs. Narayanaswamy
and sons and others3, the Apex Court held as follows:
2
2024 LiveLaw (SC) 178
6
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
“The factors to be taken into consideration by the court while dealing
with an application for amendment. One of the important factors is as
to whether the amendment would cause prejudice to the other side or
it fundamentally changes the nature and character of the case or a
fresh suit on the amended claim would be barred on the date of filing
the application.”
9. In view of the principles laid down in the aforesaid case laws and for
the aforesaid reasons, I am of the considered view that with a malafide
intention after 18 years of the institution of the suit, the petitioner/appellant
come up with an application for seeking amendment of conversion of simple
suit for permanent injunction into the relief of declaration of title and
consequential relief of permanent injunction, that too at the stage of second
appeal, after institution of 11 years of second appeal and if the proposed
amendment is allowed, certainly it will change the nature of the suit.
Therefore, the present application is liable to be dismissed.
In the result, the application in I.A.No.1 of 2022 is dismissed.
__________________________
V. GOPALA KRISHNA RAO, J.
Dt.02.04.2025.
PGR
3
(2009) 10 SCC 84
7
VGKR, J.
I.A.No.1 of 2022 in sa_402_2011
HONOURABLE SRI JUSTICE V. GOPALA KRISHNA RAO
I.A.No.1 of 2022
In
S.A.No.402 of 2011
Dt.02.04.2025
PGR
[ad_1]
Source link