THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.1539 OF 2007 08-07-2010 Between: Kota Seetharamaiah ..petitioner Vs. Meka Srinivasa Rao and others …Respondents. THE HONOURABLE SRI JUSTICE GODA RAGHURAM CRP NO.1539 OF 2007 ORAL ORDER Heard Sri N.Satyanarayana, the learned counsel for the revision petitioner and Sri Anand, the learned counsel for the respondents. This is a plaintiff’s revision under Article 227 of the Constitution directed against the order dated 06-02-2007 of the Court of the Principal Junior Civil Judge, Repalle rejecting I.A.No.672 of 2006 in O.S.No.257 of 2005, seeking amendment of the plaint. The revision petitioner filed the suit for declaration of his title and for partition of the suit schedule property. On 18-10-2006 a written statement was filed by the 7th defendant denying the title of the plaintiff to the suit schedule property and claiming title for herself. Eleven(11) months later and after the commencement of the trial in the suit, the plaintiff filed I.A.No.672 of 2006 for amendment of the pleadings in the plaint to plead that the claim of the title by the 7th defendant is barred by limitation in view of the judgment and decree in O.S.No.146 of 2003 on the file of the I Additional Junior Civil Judge’s Court, Repalle filed by the 7th defendant. In the affidavit filed in support of I.A.No.672 of 2006, the revision petitioner pleaded that he came to learn about the claim of title by the 7th defendant only through her written statement and now seeks amendment of the plaint to take the plea of estoppel/ res judicata, as he was advised to amend the plaint and raise such a plea specifically (pleaded in the application file in support of I.A.No.672 of 2006); and that no further evidence is required despite such additional plea in the plaint. The respondent filed a counter inter alia contending that no such application for an amendment could be sought after commencement of the trial qua the provisions of Order VI, Rule 17 CPC as amended, unless the court is satisfied as to the bona fides of a belated application on a proper reason adduced by the party seeking the amendment, as to the delay. The court below without going into the issue whether the revision petitioner/plaintiff had asserted relevant reasons for exercise of its discretion under the proviso to Order VI Rule 17 CPC, recorded a finding on merits that as the earlier suit O.S.146 of 2003 was only for injunctive relief (filed by the 7th respondent herein), the title of the suit schedule property was not directly and substantively in issue and therefore the prima facie finding of title in that suit (between the 1st respondent and 6th respondent) would neither estop the 7th defendant nor constitute a res judicata barring the present claim of the 7th defendant, to title to the suit schedule property. Sri Anand, the learned counsel for the respondents in this revision would strenuously contend that neither in the affidavit filed in support of I.A.No.672 of 2006 nor in this revision does the plaintiff explain why he was disabled from filing an application for amendment of the plaint before commencement of the trial particularly since it is admitted that the plaintiff learnt about this claim of the 7th defendant qua the written statement filed on behalf of the such defendant, which event was clearly anterior to the commencement of the trial. On a consideration of the plea in the affidavit filed in support of I.A.No.672 of 2006, it is clear that the revision petitioner did not specifically plead why I.A.No.672 of 2006 was filed after commencement of the trial in the suit and the reasons for not filing such an application earlier. It however requires to be noticed that I.A.No.672 of 2006 was filed only 13 months after the written statement filed by the 7th defendant and shortly after the commencement of the trial, in the context of the specific averment in the affidavit filed in support of I.A.No.672 of 2006 that no further evidence need to be recorded despite the plea now sought to be amended. The defendants are seen suffer no serious prejudice by allowing the amendment except perhaps a little delay involved in framing an appropriate issue with regard to this amended plea. However, since the revision petitioner/plaintiff has failed to specifically plead any justification for filing the application after commencement of the trial in O.S.No.257 of 2005 it cannot be automatically assumed that the ingredients of the proviso to Order VI Rule 17 are satisfied. There is thus a case made out for compensating the defendants for the protracted litigative trauma in having to defend O.S.257 of 2005 and in commencing trial in the suit, from the stage of framing an issue with regard to the amended plea. In the circumstances, this court considers it just and appropriate to allow this revision on condition that the revision petitioner/plaintiff pays to the 7th respondent herein/defendant No.7 in the suit an amount of Rs.2500/- (Rupees Two Thousand and five Hundred only) within a period of three (3) weeks from today and furnishes acknowledgment of such payment issued by the 7th defendant, before the Junior Civil Judge’s Court, Repalle. On filing of such acknowledgment, I.A.No.672 of 2006 shall be considered as allowed. In default, this revision stands dismissed. This CRP is disposed of accordingly. It is however clarified that the revision petitioner shall not be entitled to lead any further evidence on the amended plea, pursuant to the application I.A.No.672 of 2006 or any issue framed in respect of the amended plea in I.A.No.672 of 2006 and any such additional issue tried on the basis of the evidence already on record. No order as to costs. ________________ GODA RAGHURAM,J 8th JULY 2010 TSNR