IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4818 OF 2009 Between: Mohd. Mahmood .....PETITIONER AND Aleem Fazal and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4818 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 21.07.2009, in I.A.No.497 of 2009 in O.S.No.3538 of 2005, on the file of X Junior Civil Judge, City Civil Court, Hyderabad, whereunder and whereby, the petition, filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), praying the Court to amend the plaint, was dismissed on the ground that the amendment of plaint for recovery of possession of the petition schedule property by dispossessing the respondents/defendants and handing over the vacant possession to the petitioner/plaintiff results in introducing a new cause of action and may cause prejudice to the other party. 2. The suit was filed by the petitioner/plaintiff for grant of perpetual injunction restraining the respondents/defendants from interfering with the peaceful possession and enjoyment of the petitioner/plaintiff over the plaint schedule property. In the said suit I.A.No.228 of 2005 was filed, whereunder status-quo was granted. Thereafter, in the said suit, the present application was filed to amend the plaint on the ground that after filing the suit the respondents/defendants encroached upon the suit schedule property and demolished the room and structures thereon after knowing the passing of status-quo orders. That petition was dismissed vide the impugned order. Hence, this revision. 3. Learned counsel for the petitioner/plaintiff contended that the name of respondent No.1/defendant No.1 has to be amended to Mohd. Aleemuddin in pursuance of the filing of the written statement by him presuming to be defendant No.1; that though the suit was filed for injunction simplicitor, during the pendency of the suit, the respondents/defendants trespassed into the land which necessitated the petitioner to seek the relief of recovery of the possession of the suit schedule property; that the amendment in any manner would not cause prejudice to the respondents and hence, he prays to set aside the impugned order. 4. On the other hand, learned counsel for the respondents/defendants contended that the trial Court after elaborate discussion, dismissed the amendment petition; that no report was filed by the Bailiff appointed by the Court, which would clearly go to show that the case of the petitioner cannot be believed; that if the amendment sought for is to be allowed, it would introduce a new cause of action than the one beyond the original; that therefore, the trial Court rightly dismissed the petition and there are no grounds to interfere with the impugned order and hence, he prays to dismiss the revision petition. 5. Order VI Rule 17 C.P.C. reads as follows: “The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall 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 trial.” The object of Order VI Rule 17 C.P.C. is to settle the dispute once for all and decide the rights of the parties, which are to be adjudicated in accordance with the evidence. 6. Admittedly, trial of the suit has not been commenced. Though the suit was filed for injunction simplicitor, after grant of status-quo, it is specifically stated that the respondents trespassed into the petition schedule premises. Therefore, in view of the change of circumstances after filing of the suit, the amendment sought for can be allowed for recovery of possession instead of filing a separate suit for recovery of possession. 7. The second ground is that the name of respondent No.1/defendant No.1 has been wrongly shown, but, in fact his name has to be described as Mohd. Aleemuddin. As a matter of fact, the suit was filed against respondent No.1, who is no other than Aleem Fazal, but the summons have been served on Mohd. Aleemudin. He filed the written statement stating that he presumed to be defendant No.1 filing the written statement. Therefore, the amendment sought for in respect of the name of respondent No.1/defendant No.1 has to be allowed. 8. In respect of the third prayer with regard to the recovery of possession of the suit schedule property, considering the act of the respondents with regard to the alleged encroachment over the petition schedule property after filing of the suit, the petitioner need not necessarily file a separate suit for recovery of possession of the petition schedule property, and he can seek relief of recovery of possession of the plaint schedule property in the present suit as the act was allegedly committed by the respondents during the pendency of the suit. Therefore, the observations of the trial Court that the proposed amendment would change the structure of the suit cannot be accepted. If the amendment is allowed, it would not cause any prejudice to the respondents/defendants because once for all the issue with regard to the title as well as recovery of possession can be decided and adjudicated with reference to the evidence that may be adduced by both parties. If the amendment is to be allowed, the defendants would be given an opportunity to file additional written statement so as to substantiate their case. Therefore, considering the fact that the relief sought for has occurred during the pendency of the suit, amendment can be allowed. 9. Accordingly, the Civil Revision Petition is allowed setting the impugned order, dated 21.07.2009, in I.A.No.497 of 2009 in O.S.No.3538 of 2005, on the file of X Junior Civil Judge, City Civil Court, Hyderabad. The amendment is subject to limitation, if any, that may be raised by the respondents/defendants in the suit. Any observation made is only for the purpose of disposal of the present Civil Revision Petition. Uninfluenced by any observation, the trial Court shall dispose of the suit in accordance with law. However, it is made clear that the petitioner/plaintiff has to value the relief of recovery of possession for the purpose of payment of Court fee, subject to the satisfaction of the trial Court and thereafter, necessary Court fee has to be paid. It is needless to observe that the respondents/defendants are entitled to file additional written statement. There shall be no order as to costs. _______________ K.C. BHANU, J February 21, 2011 MD THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4818 OF 2009 February 21, 2011