THE HONOURABLE SRI JUSTICE B.PRAKASH RAO Dated July, 2010 C.R.P.Nos.6059 of 2006 and 1208 of 2007 Between: …Petitioner And …Respondents THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.R.P.Nos.6059 of 2006 and 1208 of 2007 COMMON ORDER: Since both these revisions are out of the same proceedings between the parties hence taken up together for disposal. Heard Sri K.Chidambaram, learned counsel appearing on behalf of the petitioner and Sri M.Srinivas on behalf of Sri M.V.Suresh Kumar appearing for the respondents herein. In these two revisions filed under Article 227 of the Constitution of India the petitioner is a plaintiff. In the suit filed by him, he seeks for permanent injunction restraining the respondent/defendant from interfering with possession and enjoyment of the suit schedule property to an extent of 56 sq. yards and a terrace building. In the said suit the respondent herein filed a written statement on 10-1-2003 denying the allegations as contained in the plaint and the claims as set forth by the plaintiff apart from denying the title. Subsequently, the parties proceeded with the trial and after closure of the evidence on both sides, when the matter was coming for arguments these two applications are filed; one in I.A.No.369 of 2006 purportedly under Order 6 Rule 17 of the Code of Civil Procedure seeking for amendment of the plaint and another application in I.A.No.296 of 2006 purportedly under Rule 1 (3) of Order 23 of the Code of Civil Procedure. The case of the petitioner in both these applications is to the effect that having regard to the subsequent events, it necessitated either to seek the amendment of the plaint adding certain additional paragraphs and for the comprehensive relief of declaration and recovery of possession. Similarly, in the other application, it is claimed that since the suit is for bare injunction and having regard to the nature of claim set forth, it necessitated for filing the proper suit, hence he seeks to withdraw the suit with permission. The Court below, after taking into consideration the respective submissions from both sides, did not find favour with either of the request and dismissed the applications. Hence these revisions. The learned counsel appearing for the petitioner submitted that in view of the narrow scope of the suit as has been initially filed and the subsequent development which has taken place which necessitates a comprehensive relief being sought for, and therefore, it is necessary either the permission be granted for amending the plaint or for withdrawal of the suit for filing the comprehensive suit. The Court below did not properly appreciated such necessity to avoid multiplicity of proceedings and erroneously dismissed and accordingly the same is liable to be set aside. Mr.M.Srinivas, learned counsel appearing for the respondent submitted that there are absolutely no bona fides in the applications and that apart the petitioner has not made out any warranting circumstance which are require for either of the reliefs for which the applications are filed, and since these applications are filed at the very fag end and that too at the stage of arguments after the entire trial is over, and hence both are liable to be dismissed and the Court below has rightly dismissed the same, and thus, does not warrant any interference. Before considering the real question as arises after hearing both sides and on perusal of the material is as to whether the petitioner can seek either of the reliefs one for amendment amending the plaint by converting the suit for bare injunction into that of a declaratory and for recovery of possession and another one for permission to withdrawal of the present suit for bare injunction with liberty to file a comprehensive suit afresh, it necessitates to refer to certain aspect which will have a bearing on the real question in issue. There is no dispute to the fact that the suit which was filed as long back as in the year 2002, and the written statement was filed on 10-1-2003, therefore, according to the respondent where there is a denial of title clearly spelt out in the pleading. Therefore according to the respondent the last date for filing any declaratory suit could be on 10-1- 2006 where as these applications are filed on 9-10-2006 far beyond the allowable period of limitation, and therefore, neither of the reliefs can be granted. Admittedly, the parties proceeded with the trial and both the sides have examined their witnesses and completed respective evidence. The last witnesses produced on behalf of the defendants’ i.e., DWs.1 to 3 were cross-examined on 2-8-2006 and the evidence was closed. Later, it was posted for arguments on 7-8-2006, and thereafter, since the petitioner plaintiff was not ready with the arguments, the matter underwent adjournment from that day to 22-8-2006, 24-8-2006, 28-8-2006 and 1-9- 2006. In the meanwhile, the application has been filed on 9-10-2006 for withdrawal of the suit in I.A.No.396 of 2006 and the same was dismissed as per the orders dated 13-11-20006 against which one of these revisions in C.R.P.No.6059 of 2006 is filed. Later on, again the matter underwent adjournment to 11-9-2006, 15-9-2006, 18-9-2006, 21-9-2006, 27-9-2006, 9-10-2006, 12-10-2006, 17-10-2006 and 27-102006, at which point of time the other applications appears to have been filed seeking for amendment of the plaint. It is curious to note that both these applications arise under the provisions; one under Rule 17 of Order 6 and other one under Rule 1 (3) of Order 23 of the Code of Civil Procedure. For convenient sake both the provisions reads as follows: “Rule 17 of Order VI Amendment of pleadings.-The Court may at any stage of the proceedings allow either party o alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as m ay be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Rule 1 (3) of Order 23 1. Withdrawal of suit or abandonment of part of claim.- (1) …. (2) … (3) Where the Court is satisfied? a. that a suit must fail by reason of some formal defect, or b. that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim.” Necessarily, for consideration of either of these applications, it has been repeatedly held that the principles governing the consideration of either of these applications are quite mandatory and there cannot any go- bye to the same apart from taking into consideration any rights, which would be vested in the defendant before allowing any such request. In support of the petitioner’s submissions he sought to place reliance o n Pankaja Vs. Yellappa[1], State of A.P Vs. Pioneer Builders[2], Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale[3], North Eastern Railway Admn Vs. Bhagwan Das[4], Pratap Reddy Vs. M.Venkat Reddy[5] and Rajesh Kumar Aggarwal Vs. K.K.Modi[6]. On behalf of the respondent as well, the reliance is placed on L.J.Leach and Co. Ltd., Vs. Messrs, Jardine Skinner and Co.,[7] Pirgonda Hongonda Patil Vs. Shidgonda Patil[8], Alkapuri Cooperative Houwing Society Limited Vs.[9] K.S.Bhoopathy Vs.Kokila[10], Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior[11], Somaraju Chinnammi Vs. Samanthu Sivaji Ganesh[12], Rajkumar Gurawara Vs.M/s.S.K.Sarwagi And Co. Pvt. Ltd.,[13] and Ashutosh Chaturvedi Vs. Prand Devi Alias parani Devi[14]. Having regard to the basic question as to the compliance or satisfaction which is required for a Court before entertaining such application or granting any relief is concerned, it necessitates whether the petitioner in either of these applications has made out any prima facie case or even establish the warranting circumstances which can go in favour of showing any indulgence to the petitioner. Therefore, it is quite apt to refer to the affidavits filed in support of these two applications. In I.A.No.296 of 2006, which is filed under Rule 1 (3) of Order 23 of the Code of Civil Procedure seeking for permission to withdraw the suit, the affidavit which has been sworn to by the petitioner plaintiff herself reads as follows: 1. I am the petitioner herein and I am well acquainted with facts of the case. 2. I submit that the above suit is filed for injunction however I should have filed suit for declaration and possession. The suit has to be filed for declaration and possession before the Junior Civil Judge, Gannavaram, Krishna District. Therefore permission is hereby sought for withdrawl of the suit with a liberty to file suit before the appropriate Court for declaration and for possession. 3. It is therefore prayed that this Hon’ble Court may be pleased to permit the petitioner by granting leave for withdrawl of the suit O.S.No.193/2002 to enable him to file appropriate suit in the interest of Justice.” In other application in I.A.No.369 of 2006 filed under Rule 17 of Order 6 of the Code of Civil Procedure, the affidavit of the petitioner- plaintiff reads as follows: “2. I filed the suit seeking for permanent injunction restraining the respondents from ever interfering with my peaceful possession and enjoyment of the plaint schedule property. The plaint schedule property is of an extent of 56 Sq. yards and terraced building therein bearing door No.6/79. I submit that to the south of my site there is compound wall. I left the place as per vastu beyond the said compound wall. In the suit my husband was examined as PW.1. In his evidence he admitted that the site to the south of the said compound wall is in Triangular shape. In fact the said site has been using by me as parking place. In view of the admission made by my husband and also to avoid multiplicity of proceedings I am advised to amend the plaint as mentioned in the petition. Otherwise I will be put to irreparable loss.” On a bare look at the allegations as contained in these two applications, apparently the petitioner has hopelessly failed to make out any reason, much less a valid one or a substantial one to warrant very invocation either of these two above referred provisions or to seek such indulgence. Except making a bald and sweeping allegations and more so the very reading itself would so that the applications have been filed in a very light manner without any seriousness on its part and without showing any responsibility on its shoulder, especially, when substantive reliefs are sought to be ushered in which effect the substantive rights of the parties. Therefore, it cannot be said that the petitioner has made out any case to warrant such indulgence in its favour. In the absence of such case being made out as mandatory required under the aforesaid provisions, it can safely be said that the very applications are totally misconceived and cannot be entertained neither on merits or even on the facts and circumstances and that too at such belated stage. In view of the aforesaid reasons given as to the total failure on the part of the petitioner to make out any case to warrant any exercise of powers under either of these two provisions, the decisions which have been referred to across the Bar from both sides are not necessarily to be gone into since none of the questions as decided therein would arise in the present case. In the circumstances, I do not find any merits in either of these revisions. Revisions are accordingly dismissed. No costs. __________________ B.PRAKASH RAO,J Date: -07-2010 Grk THE HONOURABLE SRI JUSTICE B.PRAKASH RAO C.R.P.Nos.6059 of 2006 and 1208 of 2007 Dated: -07-2010 [1] AIR 2004 SC 4102 [2] (2006) 12 SCC 119 [3] (2007) 6 SCC 737 [4] (2008) 8 SCC 511 [5] 2004 A I H 573 [6] (2006) 4 SCC 385 [7] AIR 1957 SC 357 (1) [8] AIR 1957 SC 363 (1) [9] (2009) 3 SCC 467 [10] (2000) 5 SCC 458 [11] AIR 1987 SC 88 (1) [12] 2008-LAP-0-311 [13] 2008-TLPRE-0-1004 [14] 2008-TLPRE-0-743