HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5666 of 2009 Date: 30th December 2010 Between : Irla China Malakondaiah. ….Petitioner And The Christian Progressive Front Voluntary Organisation, rep. by its Executive Committee Member & others. ….Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.5666 of 2009 ORDER : This civil revision petition is filed under Article 227 of Constitution of India, aggrieved by the order, dated 29.09.2009, passed by the learned Senior Civil Judge, Kavali, in I.A.No.140 of 2009 in O.S.No.31 of 2007. 2. The petitioner herein is the plaintiff in the suit in O.S.No.31 of 2007. The said suit is filed seeking the relief of permanent injunction, restraining the defendants and their men from interfering with his possession and enjoyment of plaint schedule property i.e. vacant site of 48 Ankanams of land situated at Dantamvari street in Ramamurthypet of Kavali town in Nellore District. The said relief is sought for on the ground that the property in question originally belong to Juwet Memorial Church, Ongole, and the said Church, in consultation and with the consent of Telugu Baptist Church, Kavali, sold the plaint schedule property to the plaintiff for a sum of Rs.1,44,000/- and executed a registered sale deed on 04.11.1992. It is the case of the petitioner-plaintiff that though he is in possession of the suit schedule property by virtue of the aforesaid purchase, respondents are interfering with his possession. In the said suit, written statement is filed stating that the plaintiff is not in possession of the suit schedule property and the vendor of the plaintiff had no right to sell the suit schedule property alleging that his settler has not given salable right to the vendor of the plaintiff. It was pleaded in the written statement that the suit schedule property is in possession of tenants. 3. In the aforesaid suit, issues were framed and evidence was also started. On behalf of plaintiff, PW-1 was examined in chief and he was also partly cross-examined, and thereafter, the present application in I.A.No.140 of 2009 is filed under Order 6 Rule 17 read with Sections 94(e) and 151 of C.P.C., praying the Court to permit the petitioner-plaintiff to amend his plaint by adding paras 13, 15-A and 16-A to the plaint. By virtue of the relief sought for, the petitioner pleaded for amendment, stating that inspite of the injunction orders granted earlier in his favour, respondent-defendants have trespassed into the plaint schedule property, as such, he sought amendment to add the relief of declaration of title of plaintiff with regard to the suit schedule property and also for recovery of possession, by valuing the suit schedule property at Rs.15,55,200/- being 3/4th of the market value under Section 24(a) of the Court Fee and Suit Valuation Act. The said application is opposed by filing counter affidavit. In the counter, it is the case of respondent-defendants that the present application is filed with all false allegations and if the relief of amendment is allowed, it will change the nature of the suit. It is also pleaded that the relief sought for possession is barred by limitation, as such, they opposed the application on the ground that the Court below has no jurisdiction to entertain the application at this stage. 4. In the application in I.A.No.140 of 2009, no oral or documentary evidence is let in, but the Court below, by considering the plea of the petitioner and the respondent- defendants, has rejected the application by impugned order. The Court below has taken the view that PW-1 was examined already and in cross-examination, he admitted that he was not in possession of the suit schedule property as on the date of filing of the suit and the claim for recovery of possession is barred by limitation. By recording so, rejected the application by impugned order. Hence, this revision petition. 5. Heard Sri M.S.Ramachandra Rao, learned counsel for petitioner, Sri P.Rajasekhar, learned counsel appearing for respondents 1 and 2 and Sri T.C.Kishan, learned counsel appearing for respondent No.3. 6. In this revision petition, it is contended by the learned counsel for petitioner Sri M.S.Ramachandra Rao, that to avoid multiplicity of proceedings, the Court below ought to have allowed the application for amendment as sought for. It is submitted that the issue, namely, whether the suit is barred by limitation or not, is a triable issue and the Court below erred in rejecting the application on the ground that the claim for recovery of possession is barred by limitation. The learned counsel, in support of his argument, relied on the judgments of this Court in Gomi Bai Vs. Uma Rastogi[1], in Raghu Thilak D.John Vs. S.Rayappan[2], in Sajjan Kumar Vs. Ram Kishan[3] and in Usha Devi Vs. Rijwan Ahmad[4]. 7. On the other hand, it is submitted by the learned counsel appearing for respondents that there is no error of jurisdiction committed by the Court below in passing the impugned order, rejecting the application filed by the petitioner for amendment, as such, there are no grounds to interfere with the impugned order in exercise of powers under Article 227 of the Constitution of India. It is submitted by the learned counsel that in view of the explanation which is added by way of amendment to Order 6 Rule 17 of CPC., this application for amendment is not permissible at this stage. It is submitted that in the suit, trial has already commenced and PW-1 was examined in part and in the cross- examination, he has clearly admitted that he was not in possession of the suit schedule property on the date of filing of the suit, and in that view of the matter, there is no reason or justification in seeking for amendment at this stage. It is submitted that such an amendment is sought for only to withdraw the admission made in the cross-examination and to get over the same. The learned counsel has relied on the judgments of this Court in Jangili Venkateswarlu Vs. Bandaru Omkaraiah[5], in Rajkumar Gurawara (dead) through L.Rs. Vs. M/s.S.K.Sarwagi & Co. Pvt. Ltd.[6] and in Vidyabai Vs. V.Padmalatha[7]. 8. Before I advert to the contentions of the learned counsel appearing for the parties, I deem it appropriate to refer to the provision under Order 6 Rule 17 of C.P.C., under which, the application is filed by the petitioner before the Court below, seeking amendment. Prior to the amendment of Order 6 Rule 17, the Court was empowered at any stage of the proceedings, to allow the application to alter or amend the pleadings in such manner and on such terms as may be just and necessary for the purpose of determining the real questions in controversy between the parties, but however, by way of amendment, a proviso is added to the same, which reads as under: “Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial”. In the instant case, the suit was filed in the year 2007 and after framing the issues for trial, the evidence was already started. PW-1 was already examined in chief and he was also cross- examined. It is appropriate to refer to the portion which is relevant in the deposition of the cross-examination of PW-1, which reads as under: “It is true that defendants are in possession and enjoyment of the suit schedule property even now. It is true even now as on the date of my filing the suit, defendants were in possession and enjoyment of the schedule property”. It is the specific case of respondents that after cross-examination, wherein PW-1 has admitted that the plaintiff was not in possession of suit schedule property even as on the date of filing of the suit for injunction simplicitor, the petitioner has come up with the application as a measure of damage control. Although it is the case of the petitioner that as he was dispossessed inspite of injunction, he filed the application for amendment sought for, but from the cross-examination of PW-1, it is clear that he has admitted that the defendants were in possession even as on the date of filing of the suit. In that view of the matter, particularly, in view of the explanation, which is added by way of amendment to Order 6 Rule 17 C.P.C., the petitioner cannot get over the explanation so as to seek amendment at this stage. Although it is well settled that merits of the case, which is added by way of amendment, cannot be gone into at the stage of considering the application for amendment, but if this practice is allowed, definitely, this will cause prejudice to the case of the respondent- defendants. A party who has admitted in the cross-examination that he was not in possession of property on the date of filing of the suit, under the guise of amendment, seeks to avoid the finding to be recorded by the Court against him. As it is also pleaded by the respondent-defendants that if the amendment is allowed, in view of the pecuniary jurisdiction and value of the suit, the Court below will not be having jurisdiction, and in such an event, and keeping the object of explanation which is added to Order 6 Rule 17 C.P.C., as there are no compelling reasons to get over the explanation, this application is rightly rejected by the Court below. 9. Coming to the judgments relied on by the learned counsel for petitioner, in the case of Gomi Bai (1 supra), a learned Single Judge of this Court has held that the amendment affected to order 6 Rule 17 C.P.C. would not apply to the pleadings in the suit filed long prior to 01.07.2002 and further held that typographical errors can be corrected by way of amendment at any time. In the case of Raghu Thilak D.John (2 supra), the Hon’ble Supreme Court has held that the dominant purpose of Order 6 Rule 17 was to minimize the litigation. In the said judgment, initially, a suit was filed for permanent injunction restraining the defendants from demolishing his compound wall, but alleging that during the pendency of proceedings, defendant has entered his property and demolished the wall, sought for amendment as relief for damages. While allowing the application for amendment, the Apex Court has held that the Courts, while dealing with such applications, should not take hypo-technical approach and the applications should be considered liberally. In the case of Sajjan Kumar (3 supra), the description of the suit property was sought to be amended. The Hon’ble Supreme Court has held that the proposed amendment is necessary to bring the real question in controversy between the parties to the fore and has held that refusal to permit such amendment will create needless complications during the execution proceedings. Further, in the case of Usha Devi (4 supra), the Hon’ble Supreme Court has held that the trial of the suit would commence with the settlement of issues and to maintain an application under Order 6 Rule 17 of C.P.C., one has to prove that inspite of due diligence, he could not have raised the matter before the commencement of trial. 10. The aforesaid judgments relied on by the learned counsel for petitioner would not render any assistance in support of his case. Primarily, an application under Order 6 Rule 17 C.P.C. has to be considered with reference to the facts of each case and also taking into account the stage of the proceedings, keeping in mind that if such an amendment is allowed, can it cause any prejudice to the case of the other party. In the present case, it is to be seen that the suit is of 2007 and when the matter is coming up for trial nearly after two years of filing, after cross-examination of PW-1, in which he has deposed that defendants were in possession even on the date of filing of the suit, the present application is filed. In that view of the matter, there is no reason or plausible explanation to permit the amendment at this stage, in view of the explanation added to Order 6 Rule 17 of C.P.C. No case is made out by the petitioner to show that inspite of due diligence, he could not take such step for amendment before the commencement of trial. In that view of the matter, and in view of the categorical admission of PW-1 that defendants were in possession of suit schedule property on the date of filing of the suit, there is no reason or justification for filing the application in I.A.No.140 of 2009 at this stage. 11. On the other hand, coming to the judgments relied on by the learned counsel for respondents, in the case of Jangili Venkateswarlu (5 supra), a Division Bench of this Court has categorically held that while exercising discretion under Order 6 Rule 17, amendment can be permitted at any stage of the proceedings, and it is always essential for the Court to bear in mind that such amendment would not cause prejudice to the other side, which could not be compensated in costs. Applying the ratio laid down in the said case, it is clear that as much as PW-1 has admitted in the cross-examination that defendants were in possession as on the date of filing of the suit, if the amendment is allowed, definitely, it will cause prejudice to the case of the respondent-defendants, which cannot be compensated in costs, as such, the judgment relied on by the learned counsel appearing for respondents will support their case. 12. Further, reliance is also placed in the case of Rajkumar Gurawara (6 supra), wherein, the Hon’ble Supreme Court has held that pre-trial amendments are to be allowed liberally than those sought to be made after commencement of trial. Similarly, in the case of Vidyabai (7 supra), when the High Court has granted leave to amend the Written Statement after plaintiff has filed affidavit in lieu of chief examination, while setting aside the order of High Court, the Hon’ble Supreme Court has held that the trial commences on the date when issues are framed, and therefore, the order of the trial Court refusing amendment neither suffers from jurisdiction nor error of law. The aforesaid Judgments relied on by the learned counsel for respondent- defendants will support their case. 13. In the present case, although it is pleaded that the issue of limitation is an issue which is triable after the amendment is ordered, but that by itself is no reason to allow the amendment. Even according to the petitioner, if the amendment is permitted, the pecuniary jurisdiction of the Court will be changed, and the party, who is subjected to jurisdiction having filed the suit, after cross-examination, cannot be allowed to seek amendment, which will ooze the very jurisdiction. As this Court is of the considered opinion that the amendment as sought for will cause serious prejudice to the case of respondents and there is also no plausible explanation as contemplated under proviso to Order 6 Rule 17 of C.P.C., and further, in the absence of any error of law or jurisdiction committed by the Court below in rejecting the application for amendment, I do not find any illegality which warrants interference under Article 227 of the Constitution of India. 14. 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 30th December 2010 ajr [1] 2005 (2) ALD 631 [2] (2001) 2 SCC 472 [3] (2005) 13 SCC 89 [4] AIR 2008 SC 1147 [5] 2003 (3) ALT 612 (D.B) [6] AIR 2008 SC 2303 [7] AIR 2009 SC 1433