THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.1392 OF 2011 DATED 11TH NOVEMBER, 2011 Between: Smt.Tasleem Bee. … Petitioner A n d Mohd.Sardar and others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.1392 OF 2011 O R D E R The plaintiff in O.S.No.171 of 2003 on the file of the learned Junior Civil Judge, Zaheerabad, Medak District, filed I.A.No.408 of 2010 therein seeking to amend her plaint. By order dated 21.03.2011, the trial Court dismissed the said application. Hence, this Civil Revision Petition by the plaintiff. Parties shall be referred to as arrayed before the trial Court. The suit was filed for a perpetual injunction restraining the defendants from interfering with the plaintiff’s possession over an extent of Ac.3.00 guntas of land in Sy.No.71 of Hoti (B) Village, Zaheerabad Mandal, Medak District. The case of the plaintiff initially was that the suit land was a Government land and that she was in possession thereof for more than 15 years. Claiming to be a landless poor person she made a representation to the Mandal Revenue Officer concerned for grant of assignment in her favour. She approached this Court by way of W.P.No.21266 of 2003 in this regard and the said writ petition was disposed of by order dated 14.10.2003 directing the Mandal Revenue Officer concerned to consider her representation. The defendants in the suit contested the plaintiff’s claim that she was in possession of the suit land. It was their case that the first defendant was in possession and enjoyment of the suit land in Sy.No.71 of Hoti (B) Village. They further contended that the plaintiff purchased lands adjacent to the suit land and taking advantage of their innocence, she got her name entered in the revenue records in respect of the suit land and was trying to dispossess the first defendant therefrom. Issues in the suit were framed on 26.03.2004 and the trial commenced on 20.10.2008. The plaintiff filed her affidavit in lieu of chief-examination on the said date and she was cross-examined thereafter. PW.2 was examined on her behalf on 11.12.2009 and upon cross-examination of the said witness, the plaintiff closed her evidence on 12.03.2010. Affidavit in lieu of chief-examination of DW.1 on behalf of the defendants was filed on 02.07.2010 and at that stage, the plaintiff came with this subject application seeking to amend the plaint. According to the plaintiff, one Kishangiri Gosai was the pattadar of the land admeasuring Ac.9-26 guntas in Sy.No.71 of the Village and his name was entered in the revenue records. However, since the year 1960 the land was shown as ‘lawaris’. She referred to the proceedings dated 16.10.2005 issued by the Joint Collector, Medak District, under the provisions of the Andhra Pradesh Escheats and Bona Vacantia Act, 1974 whereby she was sought to be dispossessed from the suit land and W.P.No.3300 of 2006 filed by her before this Court challenging the same. The said writ petition was disposed of by order dated 23.02.2006 setting aside the impugned proceedings dated 16.10.2005 on the short ground that the prescribed procedure was not followed and granting liberty to the authorities to follow the same and take appropriate action in accordance with law. The order in W.P.No.3300 of 2006 is stated to be the basis for seeking the amendment of the plaint, whereby the plaintiff wanted to resile from her previous pleading to the effect that the suit land was Government land. She now wanted to substitute the same with the plea that it was a private land which earlier belonged to one Kishangiri Gosai and that she had perfected her title over the same through adverse possession. Sri Mohd. Ghulam Hussain, learned counsel for the petitioner/plaintiff, contended that the trial Court ought not to have refused amendment of the plaint on the ground that his client was introducing a new plea and that the proposed amendment, if allowed, would have the effect of changing the very nature of the plea which she had taken earlier. He placed reliance on the Judgment of the Supreme Court in FIRM SRINIWAS RAM KUMAR V/s. MAHABIR PRASAD[1] wherein it was held that the plaintiff may rely upon different rights alternatively and there is nothing in the Code of Civil Procedure (CPC) to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. It is however to be noticed that the plaintiff in the present case did not seek to introduce an inconsistent alternative plea but wanted to change her stand altogether by claiming that the suit land, which she herself had admitted to be Government land hitherto, was not so and was actually private land. Further, the plea of adverse possession which was earlier not advanced was also sought to be raised. That apart, this Court would necessarily have to take into consideration the amended provisions of Order VI, Rule 17 CPC. The proviso to the rule as it now stands mandates that no application for amendment should be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. It is no doubt true, as pointed out in JAGATH SWAPNA & CO., V/s. CHURCH OF SOUTH INDIA TRUST ASSOCIATION[2], that the question as to whether the party has acted with due diligence or not would depend upon the facts and circumstances of each case and no straightjacket formula can be laid down in that regard. The case on hand however reflects in clear terms that the plaintiff was not diligent in the matter. The suit was instituted in the year 2003 and the trial commenced in October, 2008. Long prior thereto, the petitioner was well aware of the order dated 23.02.2006 passed by this Court in W.P.No.3300 of 2006 filed by her. Despite the same, she took no steps to seek amendment of her plaint before the commencement of the trial. Even thereafter, till the commencement of the defendants’ evidence in July, 2010 the plaintiff did not choose to take any steps. It was only in October, 2010 that she came up with the subject I.A. seeking amendment of her plaint. Perusal of the affidavit filed in support thereof indicates that no attempt was made by her to explain the delay on her part in moving the said application. When the basis for the application was the order dated 23.03.2006 in W.P.No3300 of 2006, except for a bald statement that in spite of due diligence she could not file the amendment petition prior to the commencement of the trial, the plaintiff did not endeavour to demonstrate the same or explain the delay. On the above analysis, the failure of the plaintiff to satisfy the requirement of Order VI, Rule 17 proviso CPC would be fatal to her case. This Court therefore finds no reason to interfere with the order passed by the trial Court dismissing I.A.No.408 of 2010 in O.S.No171 of 2003. The Civil Revision Petition is devoid of merit and is accordingly dismissed. Needless to state, the trial Court shall proceed with the matter uninfluenced by the observations made on merits, if any, hereinabove. No order as to costs. -------------------------- SANJAY KUMAR,J 11TH NOVEMBER, 2011 PGS [1] AIR 1951 SC 177 [2] 2011(2) ALT 605