THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.18 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 05.09.2008, in I.A.No.768 of 2007 in O.S.No.82 of 2004, on the file of the Senior Civil Judge, Adoni, whereunder and whereby, the petition, filed under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), to amend the written statement, was allowed. 2. Learned counsel for the petitioners contended that the trial of the case has been commenced and therefore, in view of the amendment of C.P.C. in 2002, the application is not maintainable; that the respondent/defendant has no right over the ancestral property, which is sought to be included for partition and hence, he prays to set aside the impugned order. 3. On the other hand, learned counsel for the respondent contended that no prejudice would be caused by including the properties; that it is only a plea, so that dispute can be settled once for all; that in pursuance of the order of trial Court, amendment has been carried out and necessary Court fee has been paid and therefore, he prays to dismiss the revision petition. 4. The amendment application is filed under Order VI Rule 17 C.P.C., which reads as follows: “Consequential amendment:- Add: In Para No.3 (a): The Defendant already taken a plea that Defendant is having share in land bearing Sy.No.352/2 extent 1.00 acre and also house bearing D.No.321 in ward No.21 at Mandigeri, in spite of that the plaintiffs have not impleaded the above mentioned property in the suit schedule further in the cross-examination of P.W.1 and P.W.2 they have categorically admitted that joint family owns above two items. But in spite of the pleading in the written statement the plaintiffs deliberately not included the said properties, therefore the Defendant making a counter claim by impleading the said two properties in the schedule mentioned below. In the partition suit all the Defendants are plaintiffs and all the Defendants are plaintiffs when they are holding equal share in the property. Add: Para No.3(b) The defendant submit that the Plaintiffs alleging that suit schedule property is joint family property but the Defendant’s mother made construction in the said property by borrowing loan from the Indian Bank, Adoni, though the building was constructed by the defendant’s mother long back, the plaintiffs never objected nor they interfered with the construction of the working in respect of the suit property, after lapse of 20 years now the plaintiffs come with a plea that it is a joint family property and they are having share in it which is un-just and un- reasonable, therefore the defendant is also taking alterntive plea of equity to hold the suit schedule property towards his share and allot the property mentioned below to the Plaintiffs in case, if the Hon’ble Court come to conclusion that the Plaintiffs are entitled for share in the suit schedule property as prayed for and further the Defendant submits he need not file a separate suit for partition in respect of written statement schedule property which amounts multiplicity of the proceedings, to avoid the multiplicity of the proceedings this amendment is sought for comprehensive adjudication. Add: Para No.3(c): The Defendant is in joint and constructive possession of below mentioned property along with Plaintiffs and he is entitled for 1/3rd share in the below mentioned property along with suit property. The building was constructed in the year 1989-1990, thus the Defendant’s mother ousted joint and constructive possession of the Plaintiffs in the year 1990 itself to the knowledge of the Plaintiffs and public at large the Defendant and his mother were and are enjoying the Plaint schedule property for their own and possession of the Defendant, thus the Defendant perfected his title by way of adverse possession. Add: Para No.3 (d): The cause of action for the suit arose on 9-8-2006 when the P.W.1 cross-examined and he admitted about the existence of below mentioned property jointly held by the family at Adoni within the jurisdiction of this Hon’ble Court. Add: Para No.3(e): for the purpose of court fee and jurisdiction the suit is valued as follows:- The market value of the item No.1 of the written statement schedule property comes to Rs.30,40,000/- and Defendant’s 1/3rd share comes to Rs.10,13,333/- 3/4th of Defendant’s share of Rs.7,59,999/-. The market value of the Item No.2 of the written statement schedule property comes to Rs.6,01,107/- and Defendant’s 1/3rd share comes to Rs.2,00,369/-, 3/4th of Defendant’s share of Rs.1,50,277/-. As such a court fee of Rs.200/- is paid u/s 34(2) of Court Fee Act as the defendant and Plaintiffs are having equal share in the written statement schedule mentioned property. Add: Para No.3(f): The Defendant therefore prays that the Hon’ble Court may be pleased to pass a Preliminary Decree to an extent of 1/3rd share of the Defendant in respect of written statement schedule property and appoint a court commissioner for division of the same and ascertain mense profit of the same and costs and for such other relief the Hon’ble Court deem fit in the circumstances of the case in the ends of justice. Schedule Item No.1:- House situated within the Registration District of Kurnool, Sub-Registration District of Adoni, within the limits of Adoni Municipality bearing D.No.321 in ward No.21 (Total market value Rs.6,01,107/-). Bounded by:- East : House of Talari Hanumanthappa West : House of Harijana Hanumanthappa and Teacher Narasappa. North : Hillocks South : Durgamma Temple Measurements:- East West : 29 feet North South : 35 feet Item No.2:- Land situated within the Registration District of Kurnol, Sub-Registration District of Adoni, within the limits of Mandigeri village, bearing Sy.No.352/2, extent 1.00 acre (Total market value Rs.30,40,000/-). Bounded by:- East : Land of Y.Basanna. West : Land of Badenna North : Land of Talari Narasingappa and T.Hanumanthappa South : Harijana Hanumanthappa” 5. In view of the amendment of C.P.C. by Act 22 of 2002, filing of amendment petition is not routine or automatic. The object of Order VI Rule 17 C.P.C is that the Courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to other side. The proviso to said Rule provides 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. A plea has been taken by the respondent/defendant in the written statement to the effect that the two properties viz., Ac.1-00 of land in Survey No.352/2 and a house bearing Door No.321 in Ward No.21 at Mandigeri, have not been included in the petition schedule property and that the respondent’s mother is entitled for the share in the said properties. In spite of the said fact, the petitioners/plaintiffs have not taken any steps to include these properties in the plaint schedule. Whether Smt. Pedda Eramma and her husband are the original owners of the suit properties; whether petitioner No.1, husband of petitioner No.2 and mother of respondent are the children of Smt. Pedda Eramma and whether they are entitled for a share or not, have to be decided after adducing necessary evidence. Therefore, these questions of fact have to be decided after letting in evidence. 6. Insofar as amendment is concerned, in spite of taking a plea by the respondent, the petitioners have not taken any steps to amend the plaint so as to include the said two properties, which are said to be the ancestral properties. The reason for not taking immediate steps to amend the plaint may be as a result of not giving proper advice by the counsel. Where amendment in pleading is necessary for determining the real question in controversy between the parties, the amendment has to be allowed by the Court. Provisions relating to amendment of pleadings must be liberally construed with a view to promote the ends of justice and not to defeat them. Furthermore, the proposed amendment would not alter the structure of suit. The amendment sought for would definitely avoid multiplicity of litigation. It would not cause any prejudice to the case of petitioner. Therefore, the respondent has filed the present application to amend the petition. The trial Court by exercising the proper judicial discretion allowed the petition by giving sufficient and cogent reasons. Therefore, there are no grounds to interfere with the same. 7. Accordingly, the Civil Revision Petition is dismissed. Since the suit is of the year 2004, the trial Court shall make an endeavour to dispose of the suit itself within a period of four months from the date of receipt of a copy of this order. Any observation made by this Court is only for the purpose of disposal of this revision petition. Uninfluenced by the observation, the trial Court shall dispose of the suit in accordance with law. There shall be no order as to costs. _______________ K.C. BHANU, J December 09, 2010 MD IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.18 OF 2009 Between: Chinna Eranna and others .....PETITIONERS AND M. Veeraiah ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.18 OF 2009 December 09, 2010