IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD TUESDAY, THE FIFTEENTH (15TH) DAY OF MARCH, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.4198 of 2010 Between: Venugopal reddy … Petitioner And: Mangala Thettu Reddemma & others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.4198 of 2010 ORDER: This revision is directed against the order dated 08.04.2010 in IA No.65 of 2009 in AS No.9 of 2000 on the file of the II Additional District Judge, Madanapalle, wherein the said application filed by the petitioners herein for amendment of the plaint under Order VI rule 17 and Section 151 CPC, was dismissed. 2. Heard both sides. Perused the record. 3. The petitioners herein filed suit for specific performance of agreement of sale and for direction to the defendants or such of those defendants, who are liable to execute registered sale deeds in favour of the petitioner in respect of 1/4th share in item No.1 and 5/20th share in item No.2 of the plaint schedule lands. The respondents/defendants filed written statement, contesting the suit. After full-fledged trial, the suit was dismissed. Aggrieved by the same, the petitioners filed an appeal i.e., AS No.9 of 2000 before the Additional District Judge, Madanapalle. Arguments in the appeal were heard and the matter was reserved for judgment. At this stage, the petitioners filed IA No.65 of 2009 seeking amendment of the plaint under Order VI Rule 17 CPC. The respondents filed counter, opposing the said application. The learned Additional District Judge, by impugned order dismissed the said petition. Hence, the present revision by the petitioners. 4. The suit was originally filed for specific performance in respect of 1/4th share in item No.1 and 5/20th share in item No.2 of the plaint schedule. In the written statement filed by the defendants 1, 2 and 8 it was contended that apart from the registered sale deeds executed by defendants 1 to 10 in favour of defendants 11 to 25, they are in separate possession and enjoyment of their shares. According to the petitioners, suit lands are joint and they purchased 1/8th share from 8th defendant under Ex.A.2 and 1/12th share from 10th defendant under A.2 registered sale deeds. The petitioners/plaintiffs now claims that they are entitled for partition of 3/8th share in item No.1 and 7/24th share in item No.2 and out of 3/8th share in item No.1, they are entitled for specific performance for 1/4th share and out of 7/24th share in item No.2, they are entitled for specific performance for 5/24th share. The petitioners now plead that at the time of filing of the suit itself, they should have asked for but it was not so done due to inadvertence and the said mistake was noticed only at the time of preparing the written arguments in the appeal. Hence, they filed IA No.65 of 2009 for amendment of the plaint. 5. The respondents opposed the application contending that the suit was dismissed with exemplary costs of Rs.500/- to the defendants 11 to 25 and after filing of the appeal in the year 2000, the petitioners have been protracting the proceedings by filing some applications or other and earlier also when the judgment in the appeal was reserved, the petitioners filed application for reopening the matter and the present application filed after the matter was reserved for judgment is yet another attempt to delay the disposal of the appeal. The counter filed by the respondents in IA No.65 of 2009 sets out the long chequered course the appeal has undergone. The respondents further contended that there is absolutely no reason for the delay of 22 years in filing the present application and it is intended only to take away accrued rights of the respondents. They would further contend that the proposed amendment would totally change the complexion of the suit and hence, the same cannot be permitted. 6. Learned counsel for the petitioners would submit that an application for amendment of the plaint can be filed at any stage, including the appellate stage and in that connection, he relied upon a decision in ‘Ragu Thilak D. John vs. S. Rayappan[1]’, wherein it was held that ‘the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for’. In the above case, the suit was filed for permanent injunction restraining the defendant from demolishing the compound wall. During the pendency of the suit, it is alleged that the defendant entered into the plaintiff’s house and unauthorisedly demolished the compound wall. In view of the subsequent developments, it was held that the proposed amendment of the plaint for recovery of damages can be permitted in view of the subsequent development. The above decision is not applicable to the facts of the present case for the simple reason that there are no subsequent developments in the present suit that compelled the plaintiffs to seek the proposed amendment of the plaint. Even in the written statement, the defendants while disputing that the subject items of the property are joint and contended that they are in separate possession and enjoyment, thereafter the plaintiffs have not take any steps and on the other hand, they went for trial based on the original pleadings and the suit was dismissed with exemplary costs. The appeal has been pending since about 9 years before filing of the present application. No steps were taken by the plaintiffs to seek any amendment of the plaint even after dismissal of the suit and filing the appeal. After the appeal went on for nine years and ultimately when the arguments were heard and the matter reached the stage of judgment, the present application is filed. The only ground mentioned for the delay is that the mistake in not seeking the relief of partition in the original plaint was noticed only at the time of preparing the written arguments in the appeal. The said reason cannot be countenanced even for a moment. 7. Learned counsel for the petitioners relied upon another decision in ‘Sampath Kumar vs. Ayyakannu[2]’, wherein it was held that ‘the delay of 11 years in filing the application by itself is not a ground for rejecting the application’. The above decision is also not applicable to the present case for the reason that the amendment in the above case was sought even before commencement of the trial alleging that during pendency of the suit, the defendant had forcibly dispossessed the plaintiff. The plaintiff therefore sought to amend the plaint including prayer for declaration of title and consequential relief of delivery of possession. It was therefore a case of pre-trial amendment, which was permitted, though sought 11 years after filing of the suit, as it was considered necessary in view of the subsequent development that took place during the pendency of the suit. In the present case no such subsequent event has taken place and the plaintiffs were very much aware of the contentions raised by the defendant in their written statement, but never bothered to take any steps in time before going for trial. 8. In ‘Revajeetu Builders & Developers vs. Narayanaswamy & sons[3]’, the apex Court held that ‘the first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts’ discretion in grant or refusal of the amendment’. In the above case, the apex Court laid down some of the basic principles which ought to be taken into consideration while allowing the petition for amendment. 9. In the present case, the suit is filed for specific performance. The proposed amendment is for partition in respect of some of the items pertaining to the alleged share of the plaintiffs. If the proposed amendment is allowed, it would certainly alter the nature and character of the suit. The relief now sought to be added is neither consequential nor has it been occasioned due to any subsequent event that occurred subsequent to filing of the suit. Under Order VI Rule 17 CPC as amended by Act 22 of 2002, the amendment of the plaint cannot be permitted after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not raise the matter before commencement of the trial. This is not the case where in spite of due diligence the plaintiffs could not have raised the plea before the commencement of the trial. Though the plaintiffs were aware of the plea set up by the defendants in the written statement, they did not choose to take any steps before commencement of the trial or even thereafter slept over the matter for over 22 years, which is indicative of total lack of bona- fides in filing the application. It is obvious that the present amendment petition is filed by the petitioners only to protract further proceedings and there are absolutely no merits in the said application. 10. Having regard to the fact that the appeal is pending since about 10 years and the arguments are also heard in the matter, the trial Court is directed to dispose of the appeal within a period of two months from the date of receipt of a copy of this order, without in any way being influenced by any of the observations made herein above. 11. In the result, the civil revision petition is dismissed. No order as to costs. _________________ G.V.SEETHAPATHY Date: 15.03.2011 bss [1] (2001) 2 SCC 472 [2] (2002) 7 SCC 559 [3] (2009) 10 SCC 84