IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWELTH DAY OF AUGUST TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1210 of 2007 Between: Sidagam Appayyamma ..Petitioner AND P. Pydiraju .. Respondent ORDER: Heard Sri A. Ramalingeswara Rao, learned counsel for the revision petitioner and Sri S. Subba Reddy, learned counsel for the respondent. The Civil Revision Petition is directed against the order in I.A.No.1004 of 2006 in O.S.No.1426 of 1994 on the file of the Court of III Additional Junior Civil Judge, Visakhapatnam, dated 22-01- 2007 by which the trial Court refused to permit the plaintiff to amend para-III (b) of the plaint. The suit in O.S.No.1426 of 1994 on the file of the Court of III Additional Junior Civil Judge, Visakhapatnam, was filed for partition of plaint A-schedule property into two equal shares and allotment of one such share to the plaintiff and other reliefs and it was pleaded in para-III (b) of the plaint that the suit property was divided into two equal shares on 1-1-1934 and enjoyed separately by the individual sharers. The plaintiff claimed to have succeeded to the half share of her father Pathivada Pydayya. The suit ended in a preliminary decree dated 27-07-1998 before the trial Court, which was confirmed in A.S.No.237 of 1998 on 03-11-2003 by the first appellate Court. In a second appeal in S.A.No.250 of 2004, this Court by the judgment dated 27-04-2004 found that para-III (c) (a typographic error for III (b)) was ignored by the trial and first appellate Courts, which proceeded on the premise that the property was not partitioned between the fathers of the plaintiff and the defendant. The learned Judge, therefore, directed that an issue be framed on the said averment about the division of property into two equal shares on 01-01-1934 and separate enjoyment of the said shares since then and remitted the matter back to the trial Court to determine the issue on merits in accordance with law after affording reasonable opportunity to both sides to adduce necessary oral and documentary evidence uninfluenced by any of the observations made in the second appeal. After the said order of remand, the plaintiff came up with the present application contending that while going through the pleadings for preparation of further trial, the incorrectness in the plea taken in para-III (b) was noticed and there was no allotment or separate physical division of half share of the plaintiff, while the defendant is enjoying the property and misappropriating the income therefrom throughout. Therefore, the plaintiff desired that para-III (b) be amended to indicate that the property was intended to be divided orally on 1-1-1934 after relinquishment deed and to allot one such separate share to the plaintiff. The plaintiff also intended to include the para-III (e) the words “including the share of the plaintiff”. The request was resisted by the defendant contending that the allegations of the plaintiff are false and the proposed amendment is to get over the lacunae in the plaint, which cannot be permitted belatedly in the light of proviso to Order VI Rule 17 of the Code of Civil Procedure. The trial Court passed the impugned order referring to the order of remand by this Court and opining that the plaintiff is trying to cover up her laches and get over the earlier judicial findings, which cannot be permitted to lead to divergence with the pleadings at the belated stage jeopardizing the rights of the defendants, more so, without any valid reasons for coming up with the request. Presuming the absence of bonafides, the trial Court dismissed the petition without costs. The plaintiff desires to have the said orders reversed in this revision contending that effective adjudication of the issues in the suit will be facilitated only by the amendment, which avoids multiplicity of proceedings and which does not in any manner change the nature of the suit. No right of the defendant is taken away by the amendment and any inconvenience can be compensated by costs. The only point that arises for consideration is whether the proposed amendment can be allowed in the interests of justice? It was the specific case in the plaint till the present petition that the property was owned by the paternal grandfather of the plaintiff absolutely since the purchase in 1901 and the three sons of Pathivada Sanyasi inherited the property out of whom Gurumurthy relinquished his 1/3rd share in favour of Pydayya, the father of the plaintiff, and his other brother Satyanarayana. The plea in para-III (b) was thereafter incorporated specifying that the property was divided into two equal shares on 01-01-1934 and was enjoyed separately by the individual sharers. The subsequent pleas of the plaintiff in the original plaint were about succeeding to the share of Pydayya. As it was found in the second appeal by this Court that this plea of an earlier division into two equal shares as long back as on 01-01-1934 was overlooked by the trial Court and the first appellate Court in deciding the suit and the first appeal respectively, the same was directed to be considered and decided by framing an appropriate specific issue. By the proposed amendment, the very basis for the original pleadings in the plaint and the order of remand in the second appeal will be totally changed, even if it were to be pleaded that the ultimate relief of partition claimed undergoes no change. The absolutely inconsistent version about there being only an intention to divide on 01-01-1934 cannot, therefore, be considered to fit in with the rival contentions of the parties so far for about 16 years by now. The trial Court cannot be considered to have gone wrong in opining that the rights of the defendant will be jeopardized and defeated if such an amendment were to be allowed and allowing any such amendment would also defeat the letter and spirit of the order of remand in S.A.No.250 of 2004 for this Court. Apart from other things, the prohibition introduced in the proviso of Order VI Rule 17 of the Code of Civil Procedure against allowing any amendment after the commencement of trial without proof of due diligence may also stand in the way of the plaintiff and there was not even an allegation, leave alone proof of the amendment being necessitated in spite of due diligence by the plaintiff throughout. Whether there was an actual partition or there was only an intention for partition is not a matter, which would have escaped the attention of the plaintiff for such a long time. Therefore, the failure before the trial Court cannot be reversed in this revision. Accordingly, the Civil Revision Petition is dismissed without costs. But, it is made clear that any observation made in this order or the impugned order of the trial Court shall not influence the determination of the suit on merits in accordance with law as per the order of remand in the second appeal. _____________________ G. BHAVANI PRASAD, J Date: 12-08-2010 Ksn