IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SEVENTEENTH DAY OF JUNE TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION No. 2218 OF 2008 Between: Smt.Mandlyam Eramma (died) and 3 others ......petitioners AND B.Eshwarappa ......Respondent The Court made the following:- THE HON'BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL REVISION PETITION No. 2218 OF 2008 ORDER: This revision petition is at the instance of the defendants 2 to 4, who have been brought on record in the place of deceased/original sole defendant. These petitioners are aggrieved by the order of the trial Court in partly allowing the application for amendment I.A.No.18 of 2008 filed by the plaintiff. The proposed amendment which the plaintiff was seeking by the said application is as follows:- “1. To amend “defendants” as “First defendant late Eramma”, in lines No.1,4,9,11,24,27 and 30 of Para No.3, in lines Nos.1,2 and 5 of Para No.4, in lines Nos.1,3 and 6 of Para No.5, in lines Nos.1 and 5 of Para No.6, in lines Nos.2,4 and 7 of Para No.7, in line No.4 of Para No.8, Line Nos.3 and 5 of Para No.9, in line No.3 of the prayer of the plaint 2. To amend “M.VEERANNA” as “M.Eranna” in small cause title in Para No.2 of the plaint. 3. To add and continue in Para No.8 of the plaint as “The plaintiff have got sufficient means to purchase the suit property. The plaintiff never promised the first defendant to settle her cases. The late first defendant was hale and healthy at the time of suit agreement of sale. The plaintiff did not forge the suit agreement. The plaintiff had no knowledge about the suit O.S.No.30/1988 or any appeal. Later the plaintiff came to know that no case is pending in any court in respect of the plaint schedule property.” Under the impugned order, the trial Court has permitted the proposed amendment Nos. 1 and 2 and rejected the proposed amendment No.3. The petitioners herein aggrieved by the first amendment allowed, where as the learned counsel for the petitioners graciously submits that to the extent of the second proposed amendment there is no objection. The only question therefore that arises for consideration in this revision is whether the order of the Court below allowing first prayer of the proposed amendment as extracted above is justified ? Heard Sri S.Lakshmi Narayana Reddy, learned counsel for the petitioners, who vehemently submits that the proposed amendment amounts to the plaintiff being permitted to withdraw their admission in pleadings. The learned counsel placed reliance upon the amended plaint earlier filed by the plaintiff after impleading the petitioners herein as the defendants 2 to 4 in the place of deceased/sole defendant. He placed reliance upon the opening sentence in Para No.3 of the plaint, wherein it is stated that “on 12.07.2003 the defendants agreed to sell items 1 to 3 of the plaint schedule property to the plaintiff------------”. Learned counsel submits that these petitioners-defendants have filed written statement on 06.10.2007 denying the said plaint allegations and asserting that they have not executed any such agreement of sale dated 12.07.2003. Much thereafter, the plaintiff filed the present application for amendment on 23.01.2008 seeking to clarify that the word “defendants” used in the said para-3 of the plaint may be actually read as “defendant” as shown in the first prayer of the proposed amendment. Learned counsel submits that after knowing the written statement filed by these petitioners the amendment application was moved by the plaintiff in the manner aforesaid, amounting to withdrawing admission earlier made in the plaint, which is impermissible. Learned counsel also submits that the issues are framed and the suit is coming up for trial when this amendment application is brought out. Learned counsel also submits that the agreement of sale dated 12.07.2003, which is the basis of the suit, is now sought to be explained as if it is executed by the sole deceased defendant, where as the plaint had mentioned that the defendants had executed the said agreement of sale. I am of the view that the said contention is clearly misconstruing the original plaint dated 29.12.2003, which was the suit filed against the deceased sole defendant. It was specifically stated in Paragraph No. 3 as follows: “ on 12.07.2003 the defendant agreed to sell the plaint schedule property to the plaintiff--------”. While taking out the amendment in I.A.No.11 of 2006 and showing the legal representatives of the sole defendant i.e., by impleading the petitioners herein as defendants 2 to 4, the plaint Para No.3 uses the words “defendants” in the place of defendant in the sentence quoted above by the proposed amendment the plaintiff seeks to correct the said para by stating in the aforesaid sentence the words 1st defendant late Eramma in the place of defendants and similar references in the said para in other sentences and other paras of the plaint. I am unable to appreciate that the said amendment amounts to withdrawal of admission inasmuch as the said proposed amendment is in conformity with the original plaint dated 29.12.2003 referred to above. The proposition of the learned counsel that admission cannot be withdrawn is correct but on facts, the said proposition is not attracted in the present case. The order of the Court below permitting the amendment to the extent of proposed prayers 1 and 2 therefore is clearly within the jurisdiction and is in accordance with the discretion rightly exercised by the trial Court. No ground therefore is made out warranting interference. Learned counsel for the petitioners also contends that the amendment is belated and is not permissible under Order VI Rule 17 of C.P.C. He placed reliance upon the decision of the Supreme Court i n Ajendraprasadji N.Pande and another v. Swami Keshavprakeshdasji N. and others[1]. In the present case admittedly the trial has not commenced and only issues are framed. Based on the above decision learned counsel seeks to contend that even framing of issues can be treated as a stage for commencement of trial. The reliance upon the proviso to Order VI Rule 17 of C.P.C. as amended is therefore stressed to contend that the proposed amendment being a post trial amendment ought not to have been allowed. I am unable to appreciate the said contention also inasmuch as the aforesaid decision itself clarifies that the word “shall” used in the said proviso has to be read as “may” and thereby the said proviso is held to be directory in any case. Latter decision of the Supreme Court also hold that depending upon the facts and circumstances of each case, post trial amendment can also be permitted. In the circumstances, therefore the discretion exercised by the Court below being a judicious discretion, no case warranting interference under Article 227 of the Constitution of India is made out by the petitioners. Therefore, the Civil Revision Petition devoid of merit is accordingly dismissed. Since the suit is of 2003, the trial Court is directed to hear and dispose of the suit expeditiously, in any case, before end of November, 2010. No costs. ______________________ VILAS V.AFZULPURKAR, J Date: 17.06.2010 Ivd [1] 2007 (2) ALD 93 (SC)