THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2004 of 2011 (Dated : 17-08-2011) Between: Yadavalli Dhanunjaya Varma Ananthpur Mandal & District ...Petitioner A n d Chitte Jayamma and others ...Respondents THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2004 of 2011 ORDER: This revision is directed against the order dated 25.2.2011 passed in I.A.No.396 of 2009 in O.S.No.120 of 2007 on the file of the Junior Civil Judge, Rajampet, whereby and whereunder, the learned Junior Civil Judge dismissed the application filed by the defendants under Order VI Rule 17 of the Code of Civil Procedure Code seeking permission to amend the written statement by adding para 11(a) after para 11 in the written statement. 2. The petitioner herein is the 2nd defendant and whereas the 1st respondent herein is the plaintiff in O.S.No.120 of 2007. The plaintiff filed the suit for specific performance of the agreement of sale dated 24.7.1983 executed by Yadavalli Subramanyam Raju. It is stated in the plaint that Yadavalli Subramanyam Raju agreed to sell the suit schedule property to the plaintiff and executed sale agreement on 24.7.1983 after receiving sale consideration of Rs.8500/-. Subramanyam Raju handed over the original sale deed standing in his name to the plaintiff and delivered possession of the suit schedule property. The relief sought for in O.S.No.120 of 2007 reads as hereunder:- “ It is prayed that the Hon’ble Court may be pleased to pass a decree for specific performance of the suit agreement of sale by (a) directing the defendant to execute the registered sale deed in favour of the plaintiff in respect of the suit schedule property (b) in the event of failure the Hon’ble Court may be pleased to execute a registered sale deed on behalf of the defendants in favour of the plaintiff in respect of the suit property. (c) To award costs of the suit and grant such other reliefs as the Hon’ble Court deems fit and just in the circumstances of the suit”. 3. The 2nd defendant-petitioner herein filed written statement resisting the claim of the plaintiff. He took the plea in the written statement that the family properties came to be divided in the year 1993 orally. The suit schedule property and some other property fell to his share. Execution of the agreement of sale by Subramanya Raju was not within their knowledge. Paragraph (2) of the written statement needs to be noted and it is thus:- “ It is submitted that as seen from the agreement of sale dated 24-07-1983, there is a clear condition that if executant failed to perform his part of contract he has to pay double the amount, if the plaintiff failed to perform her part of contract, she has to forfeit the sale consideration amount. As per the terms and conditions of the agreement, the plaintiff failed to perform her part of contract, i.e., she failed to demand execution of registered sale deed during the lifetime of Subramanyam Raju and also failed to brought to the knowledge of the defendants about the execution of sale agreement dated 24-07-1983 even though they are residing at their native place Munakkayalapalli which is adjacent village of plaintiff’s village i.e., Mannur. So the plaintiffs have no right to demand the defendants for execution of registered sale deed. On the other hand, the suit is barred by limitation. So the plaintiff has no right whatsoever on the suit schedule property. 4. It appears the petitioners-defendants filed memo on 09.6.2008 before the trial Court raising dispute with regard to the admissibility of the document. The memo filed by the petitioners-defendants came to be rejected by the trial Court. Thereafter, the petitioners-defendants filed I.A.No.396 of 2009 under Order VI Rule 17 CPC seeking permission to amend the written statement by adding para 11(a) after para 11. The proposed amendment reads as hereunder:- “ As the same the deed dt.19.7.1983 there is no sale of suit property so it is neither a sale deed nor a pronote. The document has no nature on the other hand there is no specific words of the sale deed by Subramanyam, so it cannot be treated as sale agreement.” The 1st respondent-plaintiff filed counter resisting the application. 5. The learned Junior Civil Judge, on considering the material brought on record and on hearing the counsel appearing for the parties, proceeded to dismiss the application by order dated 25.2.2011. The said order is assailed in this revision. 6. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondents. 7. Learned counsel appearing for the petitioner submits that the proposed amendment is not in conflict with the origin plea of the defendants in the written statement and therefore, no prejudice would be caused to the plaintiff by permitting the petitioners-defendants to amend the written statement. In support of his submissions, learned counsel placed reliance on the judgment of Supreme Court in Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar[1]. 8. Learned counsel appearing for the respondents submits that the proposed amendment amounts to withdrawal of the statement made by the petitioner-2nd defendant in para (11) of the written statement and therefore, the trial Court is justified in rejecting the application. 9. The material placed on record indicates that the defendants filed written statement in the year 2008. Subsequently, they filed memo dated 9.6.2008 raising objection with regard to admissibility of the agreement of sale. The said memo came to be rejected by the trial Court. Thereafter, the petitioner-2nd defendant filed I.A.No.396 of 2009 on 20th August 2009 seeking the proposed amendment. The affidavit filed in support of I.A.No.396 of 2009 reads as hereunder:- “ 1 . I am the 2nd Defendant in the suit and also representing others. 2. I filed written statement before the Hon’ble Court. 3. At the time of filing of my written statement I have not properly perused the deed dated 19-7-83. 4. As seen the deed dated 19-7-83 there is no sale of suit property so it is neither a sale deed nor a pronote, the document has no nature on the other hand there is no specific word of sale in the deed by Subbramanyam so it cannot be treat as sale agreement. 5. Due to oversight I Could not incorporate the above pleading in my written statement. 6. For fair adjudication I have to amend my written statement. 7. Therefore, it is just and necessary that the Hon’ble Court may be pleased to permit me to amend the written statement by adding para No.11(a) shown in my petition, otherwise I will suffer heavy loss”. 10. It is trite to note Order VI Rule 17 CPC, which reads as hereunder:- “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” 11. Indisputably, the trial has commenced in the suit. Unless the petitioners-defendants satisfies the delay in filing the application, their application for amendment of the written statement cannot be entertained. The affidavit filed in support of I.A.No.396 of 2009 has been extracted supra. No convincing reasons have been stated for not filing the application before commencement of the trial. It is matter of record that the petitioners-defendants earlier filed memo dated 9.6.2008 and their memo came to be rejected by the trial Court. After waiting for about a year, they moved the instant application before the trial Court seeking amendment of the written statement. 12. In the given facts and circumstances, I am of the view that the petitioner failed to offer any reasons for not seeking the amendment of written statement before commencement of trial. The order impugned in the revision does not suffer from any irregularity or illegality warranting interference of this Court in exercise of powers under Article 227 of the Constitution of India. 13. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________________ B.SESHASAYANA REDDY, J Dt.17-08-2011 RAR THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Civil Revision Petition No.2004 of 2011 (Dated : 17-08-2011) [1] (1990)1 Supreme Court Cases 166