*HON’BLE SRI JUSTICE L.NARASIMHA REDDY +CIVIL MISCELLANEOUS APPEAL NO.2780 OF 1998 %18.08.2009 #Smt.Kanchuboyina Appayamma Alias Padmavathi, W/o.Nagaraju, 55 years, R/o.Old Gajuwaka, Visakhapatnam. ...APPELLANT VERSUS $Gunda Santha Kumari (Died) 1. Gunda Someswara Rao, S/o.Late Narayana Murthy, 59 years, R/o.D.No.15-121, Old Gajuwaka, Visakhapatnam-26. And five others. ...RESPONDENTS < GIST: > HEAD NOTE: !Counsel for Appellants: Sri T.S.Anand. ^Counsel for Respondent: Sri V.S.R.Anjaneyulu. ? Cases referred THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.2780 of 1998 18th August 2009 Between: Smt.Kanchuboyina Appayamma Alias Padmavathi, W/o.Nagaraju, 55 years, R/o.Old Gajuwaka, Visakhapatnam. …APPELLANT AND Gunda Santha Kumari (died) 1. Gunda Someswara Rao, S/o.Late Narayana Murthy, 59 years, R/o.D.No.15-121, Old Gajuwaka, Visakhapatnam-26. And five others. …RESPONDENTS THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL MISCELLANEOUS APPEAL NO.2780 of 1998 JUDGMENT: Gunda Santha Kumari, mother of respondents 1 to 4 {for short “the respondents”}, filed O.S.No.303 of 1987 in the Court of the II Additional District Munsif, Visakhapatnam, against the appellant and the fifth respondent initially for the relief of perpetual injunction in respect of the suit schedule property. She pleaded that suit schedule property was, initially, acquired by the fifth respondent under an agreement of sale dated 22.04.1982; she purchased the same and constructed a house thereon. Her complaint was that the appellant herein is trying to interfere with her possession over the suit schedule property. The appellant filed written statement opposing the suit. She pleaded that an extent of 100 square yards of land was purchased by her from the fifth respondent under a registered sale deed 11.08.1982 and that she is in possession and enjoyment thereof, in her capacity as owner. During the pendency of the suit, Santha Kumari filed I.A.No.35 of 1993 to amend the plaint, to incorporate the relief of recovery of possession. The I.A. was ordered. Through its judgment dated 27.01.1993, the trial Court dismissed the suit. Aggrieved thereby, Santha kumari filed A.S.No.10 of 1994 in the Court of II Additional District Judge, Visakhapatnam. During the pendency of the appeal, she died and her legal representatives were brought on record. In the appeal, respondents herein filed I.A.No.438 of 1997 under Order VI Rule 17 of the Code of Civil Procedure, 1908 {CPC}, with a prayer to permit them to amend the plaint to incorporate the plea as to declaration of title. The I.A. was dismissed through order dated 16.09.1998 holding that the said relief is barred by limitation. A.S.No.10 of 1994 was finally heard and through its judgment dated 20.10.1998, the lower appellate Court remanded the matter to the trial Court with a specific direction to permit the respondents to file an application to amend the plaint to incorporate for declaration of title. Further, direction was issued to permit the parties to adduce evidence. The appellant challenges the judgment of the lower appellate Court in A.S.No.10 of 1994. Sri T.S.Anand, learned counsel for the appellant, submits that once the prayer for amendment of the plaint to incorporate the plea of declaration of title was found to be barred by limitation by the lower appellate Court, there was absolutely, no basis to remand the matter to the trial Court, that too, by according permission to file an application of that very nature. He submits that the order of remand passed by the lower appellate Court is contrary to the relevant Rules of Order XLI CPC. Sri V.S.R.Anjaneyulu, learned counsel for the respondents, on the other hand, submits that the lower appellate Court had examined the matter in detail and, on finding that an application for amendment of the plaint is tenable, remanded the matter to the trial Court. He contends that the observations made in I.A.No.438 of 1997 cannot be treated as final. The suit, as originally filed was for the relief of injunction simplicitor. Subsequently, it was amended to incorporate the prayer for recovery of possession. The trial Court framed the following issues, for its consideration. 1. Whether the plaintiff is entitled for permanent injunction as prayed for? 2. To what relief? Additional Issue. 1. Whether the plaintiff is entitled for possession of the property after evicting the defendants. On behalf of the respondents, P.Ws.1 to 3 were examined and Exs.A1 to A17 were filed. The fourth respondent i.e., the second defendant virtually supported the case of the plaintiff. The suit was contested only by the appellant herein. On his behalf, D.Ws.1 to 3 were examined and Exs.B1 to B17 were filed. Exs.C1 to C4 were also taken on record. The trial Court dismissed the suit by taking the view that in the absence of the prayer for declaration of title, the relief of recovery of possession cannot be granted to the respondents. This was obviously on the account of the fact that the appellant based his title on registered sale deed marked as Ex.B1 dated 11.08.1982, whereas, the basis for the claim of the respondent was Ex.A1, an agreement of sale dated 22.04.1982. The respondents filed A.S.No.10 of 1994. On realizing that the prayer for declaration of title is essential, they filed I.A.No.438 of 1997. After elaborate consideration of the matter, the lower appellate Court dismissed the I.A. with the following observations. “As seen from the amendment, it is changing the entire relief and a fresh suit for declaration and possession is barred under the Limitation Act. As per 1990 (1) S.C.C. 166, stated supra, the Court would, as a rule decline to allow amendment, if a fresh suit on the amended claim would be barred by limitation. The plaintiff-petitioner sought for amendment at the fag end of the trial keeping quite all these years. If the amendment is allowed, it cannot be decided basing on the material available on record and the evidence on both sides has to be recorded. When on the property, the constructions are there what made the petitioner to file a suit for injunction and even after filing of the suit what made him to keep quite all these years not explained by this petitioner. If amendment is allowed, the basic principles of amendment works in serious injustice to the other side. If the amendment is allowed, it will cause the respondent an injury which could not be compensated by any costs, and a fresh suit on the amended claim is barred by limitation by the date of filing of the application.” The respondent did not challenge the order in I.A.No.438 of 1997. With this, the avenue for them to seek the relief of declaration of title is virtually closed, even by way of filing a separate suit. It is curious to note that the same Presiding Officer, who dismissed I.A.No.438 of 1997, has chosen to remand the matter to the trial Court by making a clear observation to the effect that the trial Court shall permit the respondents to file application for amendment of the plaint to incorporate the plea of declaration of title. The relevant portion of the judgment reads as under. “Under these circumstances, in the ends of substantial justice, the appeal can be allowed directing the lower Court with a direction if petition is filed for a declaration also suit for declaration and possession and after giving opportunity to both sides decide only that issue. The lower Court is directed to permit both sides to adduce evidence if any and if necessary the appellant may file a petition for amendment of the plaint for declaration and for possession and after considering legal aspects, the lower Court is directed to dispose of the matter within six months. If appellant wants to file the petition for amendment of plaint for declaration and possession they have to do it within 10 days.” There is a total inconsistency between the order passed in I.A.No.438 of 1997 and the judgment in the appeal. On the one hand, it dismissed an application for amendment and on the other hand, suggested that identical application be entertained by the trial Court. Further, the discretion of the trial Court to examine such application was narrowed down, by issuing directions to it, to permit the parties to adduce evidence on the new plea. Remanding of a matter to a subordinate Court is not a matter of course. Circumstances under which a matter can be remanded are mentioned in different Rules of Order XLI CPC. The reasons mentioned by the lower appellate Court for remanding the matter do not fit into any of those circumstances. Further, the lower appellate Court has virtually discharged the functions of an advising agency, little realizing that the same Court gave a categorical finding to the fact that even a suit that may be filed by the respondents for declaration of title, would be barred by limitation. Therefore, the Civil Miscellaneous Appeal is allowed and the judgment of the lower appellate Court insofar as remanding the matter to the trial Court is set aside. The result is the decree passed by the trial Court dismissing the suit is upheld. There shall be no order as to costs. _____________________ (L.NARASIMHA REDDY, J) 18th August 2009 Note: LR Copy be marked B/O RRB