IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETEENTH DAY OF NOVEMBER TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.3926 of 2010 Between: Chennuri Achyut Rao .. Petitioner AND Soma Achaiah .. Respondent ORDER: The Civil Revision Petition is directed against the order in I.A.No.1063 of 2008 in O.S.No.1 of 2003 on the file of the Senior Civil Judge’s Court, Miryalaguda, dated 20-07-2010. The application in question was filed by the plaintiff for making various amendments in the plaint, in effect and substance, for including the relief of specific performance of an agreement in the suit originally filed for refund of money with interest and costs. The defendant resisted the application claiming that the case was at the stage of arguments after completion of evidence and trial at which stage the amendment changing the nature of the suit altogether could not have been made. The defendant contended that in fact, earlier I.A.No.667 of 2007 was filed by the plaintiff for the same relief and the said application was dismissed by the Court on technical grounds. A repeated application on the same grounds for the same relief does not lie and the defendant will suffer irreparable loss or damage in case of the amendment being allowed. The trial Court passed the impugned order allowing the petition on payment of costs of Rs.100/- while recording that the defendant is given a chance for filing additional written statement and did not record any reasons. The defendant challenged the said order in this revision contending that the non-speaking order is unsustainable and when the nature of suit is changed by including a claim, which is barred by limitation, the defendant suffers serious prejudice. The jurisdiction under Order VI Rule 17 of the Code of Civil Procedure was illegally exercised and the impugned order be reversed, more so, when an identical application was dismissed earlier. Sri P. Rajasekhar, learned counsel for the revision petitioner and Sri M. Sivananda Kumar, learned counsel for the respondent are heard. The point for consideration is whether the amendment sought for by the plaintiff is permissible under law? The suit was filed for recovery of money based on a transaction dated 28-03-2001 and the suit of the year 2003 is said to be at the stage of arguments after completion of recording of evidence and trial. The suit was filed only for refund/recovery of money with interest and costs and there was no whisper about the right of plaintiff to have any specific performance of the agreement. When the suit was filed obviously due to the alleged non-performance of his legal obligations by the defendant in respect of the transaction between the parties in 2001, any suit for specific performance of any obligations arising under such transaction is obviously and patently not within the period of limitation by the time the present application for amendment of plaint is filed. That apart, the defendant contended that I.A.No.667 of 2007 for the same relief on the same grounds was dismissed by the trial Court on technical grounds and it is well settled that even interlocutory adjudication operates as constructive res judicata against subsequent filing of petitions on the same facts and grounds during pendency of the suit without the presence of any additional grounds or without any change of circumstances. The repetition of identical applications on the same facts and grounds was even otherwise, unanimously considered to be an abuse of process of law and in the absence of any explanation as to how the dismissal of I.A.No.667 of 2007 can be overlooked and further in the absence of any allegations of any additional grounds or of changed circumstances, the present application also has to be considered as an abuse of process of law. Though the jurisdiction under Order VI Rule 17 of the Code of Civil Procedure is invoked liberally in exercise of judicial discretion of the Court in order to help a comprehensive adjudication of all the questions in controversy between the parties, a prohibition against allowing any amendment after commencement of trial was introduced by way of proviso to Order VI Rule 17 of the Code of Civil Procedure and after the amendment by the Central Act 22 of 2002 unless there is a proof of due diligence in spite of which the amendment could not be raised, a party is not entitled to have such an amendment after the commencement of trial. The plaintiff herein does not even allege any exercise of such due diligence and the very allegation that he came to know that the suit was filed only for money at the stage of arguments may show the absence of such diligence on the part of the plaintiff. That apart, the exercise of judicial discretion by the Court with reference to the main provision or the proviso to Order VI Rule 17 of the Code of Civil Procedure should be by specifying the reasons therefor, but the impugned order is a non-speaking order without any reasons. The mere chance given to the defendant to file an additional written statement is not a fact that can remove the prejudice caused by allowing unallowable amendment and for these reasons, the impugned order is unsustainable and the application is not maintainable. Learned counsel for the respondent-plaintiff has in fact fairly conceded the untenability of the request for amendment in fact and law and therefore, the revision has to succeed. In the result, the order dated 20-07-2010 in I.A.No.1063 of 2008 in O.S.No.1 of 2003 on the file of the Senior Civil Judge’s Court, Miryalaguda, is set aside and the said I.A.No.1063 of 2008 is dismissed without costs and the Civil Revision Petition is allowed accordingly without costs. _____________________ G. BHAVANI PRASAD, J Date: 19-11-2010 Ksn