THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.544 OF 2009 Dated 18-3-2011 Between: Abdul Majeed Khan. ..Petitioner. And: Gulam Yaseen Khan and others. …Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No. 544 OF 2009 ORDER: This revision is directed against the order dated 19th November, 2008 passed in I.A. No.1411 of 2008 in O.S.No.2745 of 1996 on the file of the VIII Junior Civil Judge, City Civil Court, Hyderabad whereby and whereunder, the petition filed by the petitioner seeking amendment of pleadings particularly to add 15.77 sq.yards as part of the crucial property stands dismissed. The petitioner is the plaintiff in the original suit. The suit has been filed for partition and separate possession of the suit schedule property and for mesne profits. The suit schedule property is shown as property bearing No.11-3-106 (75 ‘C’ Class) to an extent of 55.61 sq. yards. The suit is filed by Abdul Majeed Khan through General Power of Attorney Gousia Nuzhath. Abdul Majeed Khan is the son of late Sardar Begum and grandson of Hussaini Begum. Thus Hussaini Begum is the mother of Sardar Begum. Late Hussaini Begum purchased 55.61 sq.Yards from A.P. Housing Board under a registered sale deed dated 27-5- 1975. Subsequently, she had gifted the said property to her daughter Sardar Begum under a gift deed dated 19-2-1986. Sardar Begum died on 18-12-1995 intestate. Plaintiff’s case is that he succeeded to the said property. The 3rd respondent who is the son of Sardar Begum has been contesting the suit. He filed the written statement and after filing of written statement, issues have been framed. In the written statement, the 3rd respondent herein seems to have taken a stand that the total extent of land including the open plot in front of the suit schedule property comes to 71.38 sq.yards. His specific case is that 15.77 sq.yds. was purchased by Sardar Begum from A.P. Housing Board under a registered sale deed vide document No.2450/1989 dated 30-10-1989 and in view of the same, late Sardar Begum became the absolute owner and possessor of total extent of 71.38 sq.yds. and the petitioner herein who is the plaintiff has not referred about the purchase of 15.77 sq.yds. of property by Sardar Begum in his plaint averments. After filing the written statement, the petitioner filed the present petition seeking amendment of the plaint averments and thereby, he wants to include the area of 15.77 sq.yds. as a part of the suit schedule property. The lower Court dismissed the application. The learned counsel for the petitioner submits that originally the suit was filed in the year 1996 and an exparte decree was passed in the year 1999 and the same was set aside by 1st the appellate Court by its judgment dated 24.1.2007 and in the above circumstances, the lower Court ought not to have come to a conclusion that the petitioner came up with this amendment application after a lapse of 12 years period. His main submission is that even if the amendment sought is allowed, the boundaries of the schedule property will not change and no prejudice will be caused to the 3rd defendant. It is also his submission that the Court below ought to have ordered the amendment petition to avoid multiplicity of proceedings. Learned counsel for the petitioner relied on decisions reported in RAJESH KUMAR AGGARWAL AND OTHERS v. K.K.MODI AND OTHERS ([1]) , K.CHINNA BIDDAMMA v. J.KRISHNAMA NAIDU AND OTHERS ([2]) and JAI JAI RAM MANOHAR LAL v. NATIONAL BUILDING MATERIAL SUPPLY, GURGAON ([3]). The main submission of the learned counsel for the petitioner is that if the petition is not allowed, the petitioner has to file a separate suit for this 15.77 sq.yds. property and it will result in multiplicity of the proceedings. Sri Mohd.Ghulam Hussain learned counsel while representing the 3rd respondent relying on a decision of the Honourable Supreme Court reported in VAN VIBHAG KARAMCHARI GRIHA NIRMAN SAHAKARI SANSTHA MARYADIT (REGD.) v. RAMESH CHANDER & OTHERS ([4]) submits that omission to claim relief of specific performance of agreement to sell, would amount to relinquishment of that part of claim under Order 2 Rule 2 C.P.C. and the amendment after lapse of 11 years to include the relief of specific performance cannot be allowed. In a case 1st cited in RAJESH KUMAR AGGARWAL AND OTHERS , the facts are as follows: The only point that arise for consideration is whether the proposed amendment after the very nature of the suit? In that case the appellants were beneficiaries of Modipon Limited Senior Executive (Officers) Welfare Trust. The respondents (defendant Nos.1-4) were the Trustees of the Trust and respondent No.5 was the Secretary of the Trust. The Trust purchased 19,314 equity shares of Godfrey Philips (India) Limited (in short ‘GPI’) in the name of respondent No.1 in his capacity as a trustee of the Trust. GPI issued bonus shares in the ratio of 1:1 to its existing shareholders. Bonus shares were issued in the ratio of 1:1 in the year of 1992-93. By reason of the above, the Trust became entitled to 57,942 shares of GPI. According to the appellant, the bonus shares issued were not forwarded to the Trust and the share certificates dispatched by GPI from time to time were not received by the Secretary of the Trust. It was further stated that a new account was opened by respondent No.1 at Oriental Bank of Commerce in his name and not in the name of the Trust and is being operated by respondent No.1. Since the beneficiaries of the Trust were not deriving any benefit from the Trust and as such the appellants were constrained to file a suit for declaration, permanent injunction and mandatory injunction in the High Court of Delhi, against the respondents claiming other consequential reliefs. Then the appellants sought for amendment and wanted to incorporate relief of mandatory injunction seeking a decree of mandatory injunction directing the defendants to sell the shares of GPI held by the Trust and use the sale proceeds thereof for the benefit of the beneficiaries. Originally, the application was dismissed by the learned single judge but however, the appeal filed against it was allowed on the ground that the proposed amendment introduces a totally different, new and inconsistent case. The apex Court while referring Order 6 Rule 17 of CPC observed that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such items 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. It was further observed that unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. The apex Court on fact observed that the proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. It is settled law that power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and the apex Court. It is also settled law that the amendment cannot be claimed as a matter of right and under all circumstances. In the above referred case it was further held that technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. As seen from the facts of the above case, it is clear that in that case, the appellants were only seeking the relief of amendment and the basic structure of the suit was not changed. Therefore, the facts of the above case are entirely different and not applicable to the present case on hand. Reliance is also placed on the decision 3rd cited in JAI JAI RAM MANOHAR LAL v. NATIONAL BUILDING MATERIAL SUPPLY, GURGAON. In that case, a suit for recovery of an amount of Rs10,139.12ps towards the value of timber supplied to the defendant was instituted in the name of “Jai Jai Ram Manohar Lal” which was the name in which the business was carried on. The plaintiff applied leave to describe himself in the cause title as “Manohar Lal proprietor of Jai Jai Ram Manohar Lal. A leave was granted to amend the plaint. The suit was decreed and on an appeal, the High Court had taken a view that the action was instituted in the name of non-existing person and Mohohar Lal having failed to aver in the application for amendment that the action was instituted in the name of “Jai Jai Ram Monohar Lal” on account of some bona fide mistake or omission, the Subordinate Judge was incompetent to grant leave to amend the plaint. Thus, the High Court dismissed the application. On appeal, the apex Court held that there is no rule that unless in an application for amendment of the pliant, it is expressly averred that the error, omission or misdescription is due to a bonafide mistake, the Court has no power to grant leave to amend the plaint. Reliance is placed in a decision 2nd cited in K.CHINNA BIDDAMMA v. J.KRISHNAMA NAIDU AND OTHERS. In that case, the plaintiff filed a suit for a permanent injunction against the respondents. By reason of an application, he sought to amend the plaint by inserting paragraph-2-A therein, which reads thus: “Plaintiff herein submits that suit land is the ancestral property of plaintiff. Plaintiff herein by long, open and exclusive possession prescribed title to the suit by adverse possession as well and as the defendants are denying the title of plaintiff he is obliged to file this suit for declaration of title also apart from permanent injunction.” It was observed that as far as the question of limitation is concerned, suffice it to point out that even in a case where a claim which has become barred by limitation, can be directed to be inserted. It is to be seen that in that case, the suit was filed for permanent injunction and consequently, they wanted to amend the suit seeking declaration of title also. There was no addition or deletion of the property in that case. Therefore, those facts are not applicable to the facts of the present case on hand. On the other hand, the learned counsel for the respondents relied on a decision 4th cited in VAN VIBHAG KARAMCHARI GRIHA NIRMAN SAHAKARI SANSTHA MARYADIT v. RAMESH CHANDER & ORS. In that case, the respondent/vendor agreed to sell certain property to the appellant Co-operative Housing Society, but no date was fixed for the specific performance of the agreement for sale entered between the parties. The appellant filed a suit for declaration of title and injunction and omitted to include the relief of specific performance. Subsequently after lapse of 11 years, he sought amendment to include the relief of specific performance. It was held that the amendment sought cannot be allowed being barred by limitation. It was held as follows: “The appellant wanted to defend his action by referring to two facts (i) proceeding under the Land Acquisition Act were pending and (ii) in view of the provisions of the Ceiling Act, the appellant could not have made the prayer for specific performance. The said purported justification of the appellant was not tenable in law since if the alleged statutory bar referred to by the appellant stood in its way to file a suit for specific performance, the same would also be a bar to the suit which it had filed claiming declaration of title and injunction. The appellant had the cause of action to sue for specific performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. Its omission to include the relief of specific performance in the suit which it filed when it had cause of action to sue for specific performance would amount relinquishment of that part of its claim. The suit filed by appellant, therefore, would be hit by the provisions of Order 2, Rule 2 of the Civil Procedure Code. Though the appellant had not subsequently filed a second suit, as to bring his case squarely within the bar of Order 2, Rule 2, but the broad principles of Order 2, Rule 2, which are also based on public policy, would be attracted to the facts of instant case. The subsequent inclusion of the plea of specific performance by way of amendment would virtually alter the character of the suit, and raise the pecuniary jurisdiction of Court and the plaint had to be transferred to a different Court. Therefore, such a plea when not included in the original suit, it could not be included after a period of 11 years having regard to Article 54 of the Limitation Act. Hence plea of specific performance, which is a discretionary relief, cannot be granted to the appellant in instant case.” In the present case on hand, it is to be seen that originally, Hussaini Begum purchased 55.61 sq. yards from A.P. Housing Board under a registered sale deed dated 27.5.1975. Subsequently, she had gifted the said property to her daughter Sardar Begum under a gift deed dated 19-2-1986. The specific case of the defendant is that 15.77 sq.yds. was purchased by Sardar Begum from A.P. Housing Board on 30-10-1989 and in view of the same late Sardar Begum became the absolute owner and possessor of total extent of 71.38 sq.yds. and the petitioner herein who is the plaintiff has not referred about the purchase of 15.77 sq.yds. of property by Sardar Begum in his plaint averments. After filing the written statement on 11.4.2008, the petitioner has filed the present petition seeking amendment of the plaint averments and thereby, he wants to include the area of 15.77 sq.yds. as a part of the suit schedule property. As seen from the suit schedule property and the sketch, filed it is clear that the plaintiff had shown boundaries in the plaint schedule property by showing the road towards eastern side, but in fact between the road and the suit schedule property, 15.77sq. yards land is situated. Thus it is clear that the plaint schedule has been incorrectly shown and the rough sketch also does not indicate that 15.77 sq.yards land was left over. Admittedly, the amendment is being sought after lapse of 11 years and after the date of purchase of the property in the year 1989. It appears that the plaintiff who has not chosen to include 15.77 sqare yards of land in the suit schedule property is deemed to have relinquished his right in respect of the said property. If the proposed amendment is allowed, the entire suit schedule property as well as the boundaries will be changed. It is not correct to say that the boundaries will not be changed merely because, the plaintiff has shown wrong boundaries in his plaint schedule or has shown incorrect sketch along with the plaint. The plaintiff can not take advantage of his own mistake of showing incorrect boundaries. Moreover, Rule 28 reads as follows: “An application for amendment made under Order I, Rule 10, Order VI, Rule 17, or Order XXII of the Code, shall also contain a prayer for all consequential amendments. The Presiding Officer shall reject the application if it is not in accordance with the law or these Rules. Though the plaintiff is seeking amendment of the extent of suit schedule property but admittedly, the plaintiff is not seeking any amendment in the cause of action para or in the valuation column. Thus, it is clear that the application is not in consonance with Rule 28 of C.P.C. Therefore, I do not see any reason to interfere with the well reasoned order passed by the lower Court. There is no irregularity or irregularity warranting interference by this Court. Accordingly, this Civil Revision Petition is dismissed. No costs. ___________________ B. CHANDRA KUMAR, J. Date: 18-3-2011 Dvs THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.544 OF 2009 Dated 18-3-2011 [1] 2006 (3) ALT 50 (SC) [2] 2001 (1) ALT 342 [3] AIR 1969 SC 1267 [4] AIR 2011 SC 41