THE HON’BLE SRI JUSTICE G.BHAVANI PRASAD CIVIL REVISION PETITION No.2413 of 2009 DATED:23-12-2009 Between: P.Laxma Reddy. ..... PETITIONER And Gatla Bhujandar Reddy & another. .....RESPONDENTS ORDER: This petition is directed against the dismissal of I.A.No.272 of 2009 in O.S.No.176 of 2003 on the file of the Principal Junior Civil Judge, Sangareddy by the order, dated 15-04-2009, thus rejecting the request of the petitioner-plaintiff to amend the plaint by including in the prayer of the suit a request for mandatory injunction to remove the illegal construction raised by the respondents-defendants over the Gram Panchayat road ( compound wall). 2. Heard the learned counsel for the revision petitioner and the learned counsel for the respondents. 3. A copy of the plaint furnished by the learned counsel for the revision petitioner shows that the plaintiff alleged in the plaint itself about the existence of 8ft wide road/path in between the houses of the plaintiff and the defendants and the attempts by the defendants were alleged to be to make construction by ‘overcoming’ the public road. 4. Learned counsel for the petitioner, Sri K.B.Ramanna Dora, contends that the petitioner-plaintiff wanted to convey by such pleading that the attempt by the defendants to encroach upon the plaintiff’s property described in the plaint schedule was also by covering the said road in between the houses by making the construction. 5. Sri P.Venkat Reddy, learned counsel for the respondents, brought to notice that the plaint schedule clearly described only private property and had absolutely no reference to the public path, described as western boundary, and now by permitting the amendment, the subject matter in the suit would change. 6. Learned counsel for the respondents also brought to notice the proviso to Order 6 Rule 17 of the Code of Civil Procedure, 1908 under which allowing any application for amendment after the trial has commenced was prohibited, 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. 7. The interpretation of the said proviso by the apex Court in RAJKUMAR GURAWARA (DEAD) THR. L.RS. v. M/S S.K.SARWAGI AND CO.PVT.LTD AND ANR[1] was also relied upon by the learned counsel. 8. The apex Court pointed out that pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial and the question of prejudice to the opposite party may arise particularly after the completion of the evidence in which event it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. The apex Court also referred to the settled law that grant of application for amendment is subject to certain conditions namely: 1. When the nature of the proceedings is changed by permitting the amendment. 2. When the amendment would result in introducing new cause of action and intends to prejudice the other party. 3. When allowing the amendment, law of limitation was defeated. 9. The provision and the principles are beyond dispute but in the present case an application filed by the revision petitioner- plaintiff to make the Gram Panchayat a defendant in the suit is admittedly pending though filed subsequent to this application for amendment. One of the primary reasons for the trial Court to dismiss this application is that the plaintiff had failed to make the Gram panchayat a party to the suit. The trial Court would have been more appropriate and reasonable if it had decided both the applications together. The trial Court referred to the original plaint seeking to restrain the defendants from interference with the property of the plaintiff and also the directions of this Court in W.P.No.6992 of 2004 about the liberty given to the plaintiff to seek appropriate remedy against the authority if it failed to prevent the illegal construction of the defendants over the public road. Though it is claimed that the plaintiff did not make the panchayat as a party and did not seek any injunction concerning the public road, the plaint described even originally about the existence of a road in between the houses of the plaintiff and the defendants and the attempts by the defendants to make constructions covering the said road also. Therefore, notwithstanding the omission of the plaintiff to make the panchayat a party seeking appropriate relief regarding the road also originally, his requests for impleading the Gram Panchayat and for any amendment to the plaint in that regard have to be decided on their own merits, but not solely based on the original default of the plaintiff in not making the gram panchayat as a party and in not seeking any injunction in respect of the road. 10. Of course, while so considering the claim of the plaintiff, the trial Court should be definitely guided by the limitations imposed by the proviso to Order 6 Rule 17 of the Code of Civil Procedure and the principles laid down by the apex Court in this regard in the decision above cited as well as the other precedents concerning the manner in which a request for amendment has to be appreciated. Therefore, without expressing any opinion on the merits of the case for amendment, in the light of a reference since inception to the public road in between the houses being affected by the attempts for making construction and in the light of the orders of this Court in W.P.No.6992 of 2004, giving liberty to the plaintiff to seek redressal of his grievance before an appropriate forum, if the statutory authority failed to take action on the illegal construction of the respondents over the public road, the impugned order has to be set aside and the trial Court should be requested to consider the request to make the Gram Panchayat a party and this request for amendment of the plaint together and decide the same on merits in accordance with law. 11. Accordingly, the order in I.A.No.272 of 2009 in O.S.No.176 of 2003 on the file of the Principal Junior Civil Judge, Sangareddy, dated 15-04-2009, is set aside and the petition is remanded to the trial Court for hearing and determination on merits in accordance with law along with the application filed by the plaintiff for impleading the Gram Panchayat as a party to the suit and such determination shall be uninfluenced by any observations made by this Court in this order. 12. The Civil Revision Petition is ordered accordingly. There shall be no order as to costs. ________________________ G. BHAVANI PRASAD, J 23rd December, 2009 Tsy [1] AIR 2008 SUPREME COURT 2303