HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.4217 of 2009 Date : 01.12.2009 Between : Smt. M. Revathi @ P. Revathi Devi. …..Petitioner And Kakatiya University, Warangal, rep. by its Registrar & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.4217 of 2009 ORDER : This Civil Revision Petition under Article 227 of the Constitution of India, is filed by the plaintiff in O.S.No.177 of 2001 on the file of the learned I Additional Senior Civil Judge, Warangal, aggrieved by the order of dismissal, dated 8th of April 2009, passed in I.A.No.34 of 2009 in the above suit. 2. The suit in O.S.No.177 of 2001 is filed by the petitioner herein, seeking perpetual injunction. At first instance, orders are passed in I.A.No.767 of 1997, directing the parties to maintain status quo with regard to the suit schedule property. Thereafter, the suit was transferred to the Court of learned I Additional Senior Civil Judge, Warangal, on administrative grounds. After commencement of trial, petitioner has already adduced her evidence, and even DWs.1 and 2 were examined on behalf of defendants, and the suit was coming up for arguments, from 8th of August 2008. After the first date of posting for arguments on 8th August 2008, and thereafter also, it appears, there were more than 12 adjournments, and at that stage, two applications were filed on behalf of petitioner, one in I.A.No.33 of 2009 seeking to reopen the suit for filing of amendment petition, and another in I.A.No.34 of 2009, seeking amendment to the prayer made in the plaint, to the effect that defendant No.1 may be directed to remove the compound wall constructed by respondent No.1 on the Northern side of suit schedule land, by way of granting mandatory injunction. The said application was dismissed by the Court below through the impugned orders. Hence, this revision petition under Article 227 of the Constitution of India. 3. As evident from the affidavit filed in support of I.A.No.34 of 2009 filed by the petitioner, it is her case that she was not aware of the existence of compound wall towards the Northern side to the 1st respondent- University. It is her case that after closure of evidence of defendant No.1 as DW-1, on an application filed by them, DW-2 was examined and certain documents were filed. At that stage, she visited the site and found the compound wall. It is her further case that inspite of orders of status quo with regard to the suit schedule property, the wall was constructed by the 1st respondent-University in utter violation of such status quo orders. 4. As averred in the counter affidavit filed before the Court below, it was the case of the 1st respondent- University that the petitioner was very much put on notice about construction of the compound wall much prior to the filing of suit, by making a mention in the reply notice, which was marked as Ex.B-2. Precisely, it is the case of the respondents that the compound wall was constructed much prior to filing of the suit and it is also within the knowledge of the petitioner, and inspite of the same, she did not choose to question the construction of such wall, and at a belated stage, when the suit was coming up or arguments, the application for amendment of plaint was filed only to protract the litigation. 5. Heard Sri R.Seshagiri Rao, learned counsel for petitioner and Sri Deepak Bhattacharjee, learned Standing Counsel for the 1st respondent- University. 6. It is contended by the learned counsel for petitioner that though there were valid grounds for allowing the application for amendment, the Court below, without considering the same in proper perspective, has rejected it. It is submitted by him that the application under Order VI Rule 17 of C.P.C. for amendment of plaint so as to seek the relief of mandatory injunction in the suit filed for injunction simpliciter, is always permissible. It is submitted by the learned counsel that, to avoid multiplicity of proceedings, the Court below ought to have allowed the application as no further evidence is necessary to examine the issue even in the event of amendment being allowed. The learned counsel, in support of his argument, has placed reliance on the judgments of this Court in (1) S.J.K. Steel Corporation Ltd. V. T. Sathya Narayana[1], ( 2 ) T.Aswini Desai V. D.Koundinya[2], (3) S. Vipramamba V. Musuluzu Anasuya[3], (4) C. Laxmi Devi V. Abdul Rahiman[4] and (5) Pabba Shiva Koti V. Uma Maheswari Boiled Rice Unit, Janagaon[5]. 7. On the other hand, it is submitted by Sri Deepak Bhattacharjee, learned Standing Counsel appearing for the 1st respondent-University, that in this case, the suit was filed in the year 1997 and even in the reply notice, which was marked as Ex.B-2, a mention was made with regard to existence of compound wall, and inspite of the same, the petitioner has not taken any steps to question the construction of such wall, but at this belated stage, when the suit is coming up for arguments, this application is filed, only to protract the litigation. It is contended by the learned Counsel that in view of the amendment made to the provision under Order VI Rule 17 of C.P.C., no application can be entertained to amend the plaint at this belated stage. 8. Whether to consider or not, the application filed under Order VI Rule 17 of C.P.C., primarily depends on the facts of each case and it has to be examined whether the proposed amendment will alter the character of the suit, the stage of proceedings in the suit, and whether any prejudice will be caused to the other side in the event of allowing such application for amendment etc. In the case on hand, it is not in dispute that the suit was filed in the year 1997. Although it is the case of the petitioner that she came to know about the existence of wall only after examination of DW-2, but from the pleadings on record and also from Ex.B-2, it is clear that existence of wall on the Northern side of the 1st respondent-University is already mentioned in the reply notice, which is marked as Ex.B-2. Apart from that, the same stand was also taken by the 1st respondent-University in its counter to the injunction application, and also in the written statement filed into the Court on 05.05.1998. Though such an averment about the construction of compound wall is clearly made in the written statement, the petitioner has not chosen to seek any relief by way of amendment to the prayer in the suit, till the evidence was closed and the case was posted for arguments on 8th of August 2008. As evident from the proceedings, it appears that even after posting the suit for arguments, number of adjournments were granted, and at a belated stage, this application is filed for amendment of plaint along with an application in I.A.No.33 of 2009 for reopening of the suit. After the amendment made to the proviso to Order VI Rule 17 of C.P.C., no application for amendment shall be allowed after the commencement of trial, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter prior to the commencement of trial. In the case on hand, not only the trial has commenced, but it was concluded, and this belated attempt is made seeking amendment of plaint. Though it is contended by the learned counsel for petitioner that the Court below should have allowed the application to avoid multiplicity of proceedings, but having regard to the issues framed in the suit, on which, the evidence was already let in, the proposed amendment, at this stage, will cause great prejudice to the case of respondents-defendants. 9. Coming to the judgments relied on by the learned counsel for petitioner, in the case of S.J.K.Steel Corporation Ltd. (1 supra), a learned Single Judge of this Court has held that in a suit for injunction, relief of mandatory injunction is also permissible in view of subsequent events. In the case of T.Aswini Desai (2 supra), a suit was filed originally for specific performance of the agreement, but when it was found that the joint family property was also included in the suit agreement, the amendment is approved so as to incorporate the prayer of partition. In the case of S. Vipramamba (3 supra), a learned Single Judge of this Court has held that it is not necessary for the Court to go into merits of the amendment sought, while considering the petition for amendment. In the case of C. Laxmi Devi (4 supra), a learned Single Judge of this Court has confirmed the order passed by the Court below, permitting the amendment of the relief of declaration of title and recovery of possession for the relief of injunction simpliciter. Further, in the case of Pabba Shiva Koti (5 supra), a learned Single Judge of this Court has held that merits and demerits of the proposed amendment need not be considered at the stage when the application for amendment is taken up. But, however, in view of the fact situation in this case, the aforesaid judgments would not render any assistance in support of the argument advanced by the learned counsel for petitioner. 10. As already stated, though there is no absolute prohibition for allowing the application for amendment in a suit for injunction simpliciter, but, it has to be considered with reference to facts of each case, stage of the suit and probable prejudice to the other side, etc. In this case, this Court is of the view that in view of the clear prohibition in the proviso to Order VI Rule 17 of C.P.C., and in the absence of valid explanation offered by the petitioner to get over the prohibition contained under the said proviso, I do not find any illegality in the order passed by the Court below. It is also to be noted that as already held by the trial Court, it is clearly a case where the petitioner is trying to protract the proceedings by filing one application or the other. The number of applications filed by the petitioner indicate that this application for amendment is yet another attempt by her to protract the litigation. As such, this Court is of the view that there are no grounds at all to interfere with the impugned order in this revision filed under Article 227 of the Constitution of India. 11. For the aforesaid reasons, the revision petition is devoid of merit and it is accordingly dismissed. No order as to costs. _____________________ R.SUBHASH REDDY, J 1st December 2009 ajr [1] 2007 (2) ALT 632 [2] 2007 (2) ALT 601 [3] 2006 (1) ALT 209 [4] 2006 (1) ALT 4 [5] 2006 (2) ALT 566