IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE V.V.S.RAO Civil Revision Petition No.5865 of 2008 Dated: 03rd September, 2009 Between: Nepala Sitamma, W/o. China Venkateswara Rao, Aged about 53 years, R/o. Vaddigudem, Veeravasaram Mandal, West Godavari District And others …Petitioners / Plaintiffs AND Varri appa Rao, S/o. Mallayya, Aged about 61 years, Occ:Cultivation, R/o.Veeravasaram, Veeravasaram Mandal, West Godavari District …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO Civil Revision Petition No.5865 of 2008 ORDER: The petitioners are plaintiffs in O.S.No.503 of 2005. They filed a suit for permanent injunction restraining the sole defendant (respondent herein) from interfering with “HLMPQK bodi” of plaint plan situated in plaint ‘B’ schedule land. When the suit was pending, the plaintiffs filed an application and under Order 6 Rule 17 for amendment of the suit into a declaratory suit as well as injunction suit. They sought a declaration that suit schedule bodi is irrigation bodi for the plaintiffs and that they have right to draw irrigation water to their respective lands through said bodi. The application was opposed by the defendant. By impugned order made in I.A.No.505 of 2007 on 07.08.2008, learned I Additional Junior Civil Judge, Bhimavaram dismissed the application for amendment of suit, aggrieved by which, present Civil Revision Petition is filed under Article 227 of the Constitution of India. Learned counsel for petitioners / plaintiffs relies on Sampath Kumar v Ayyakannu[1] and submits that when plaintiffs are entitled to file a suit for declaration, they can as well move an application for amendment of suit for injunction and therefore, learned trial Judge was in error in dismissing the application. He also submits that the lower Court was in grave error in deciding merits of claim of plaintiffs. Per contra, learned counsel for respondent / defendant submits that there is no original cause of action for plaintiffs to seek amendment, that they never raised any such plea regarding existence of bodi and that amendment pursuant to fresh cause of action is not permissible. Learned counsel for respondent relies on the order of trial judge passed in I.A.No.6 of 2006 in support of her contention that the disputed bodi was not in existence and that the question of removal of bodi does not arise. I n Sampath Kumar (supra), Supreme Court considered the question whether it is permissible to convert through amendment a suit merely for permanent prohibitory injunction into suit for declaration of title and recovery of possession. Supreme Court answered the question in affirmative and laid down as follows. …In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trail Court it was open to the plantiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff’s revision. We fail to understand, if it is permissible for the palaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings…..Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trail or after conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait- jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment. The submission of learned counsel for defendant that there was no cause of action for the plaintiffs in view of the observations made by trial Court in earlier interlocutory application cannot be accepted. This Court has perused the plaint and written statement and is convinced that the ratio laid down by the Supreme Court in Sampath Kumar (supra), applies to the facts of this case. Further, while deciding the suit, trial Court could not have relied on conclusions in an interlocutory order. This Court is convinced that trial Court rejected the application only on the ground that trial Court had earlier concluded that disputed bodi was not in existence. In the suit for declaration, that question itself is an issue for adjudication and therefore, this Court is convinced that the impugned order suffers from grave error on the face of record. For the above reasons, the Civil Revision Petition is allowed and order of the Court of I Additional Junior Civil Judge, Bhimavaram in I.A.No.505 of 2007 dated 07.08.2008 is set aside. Consequently, the said I.A. stands allowed and plaintiffs are given ten days time to carryout the amendment and submit the amended plaint. Thereafter, the trial Judge shall commence trail, if not already commenced, and complete the trial and deliver judgment within four months from the date of filing the amended plaint. There shall be no order as to costs. _______________ (V.V.S.RAO, J) September 03, 2009 Bvv [1] AIR 2002 SC 3369