IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.641 OF 2011 Date:09.09.2011 Between:- Y.Pallayya and others ..Appellants And M.Sivagiri Rao and others .. Respondents JUDGMENT:- The Civil Miscellaneous Appeal, under Order XLIII Rule 1(u) of the Code of Civil Procedure, 1908 (for short, ‘C.P.C.’) is directed against the judgment and decree, dated 25.03.2011, in A.S.No.178 of 2007 on the file of VII Additional District Judge, Kakinada in setting aside the judgment and decree, dated 21.06.2007, in O.S.No.82 of 2004 passed by the Senior Civil Judge, Pithapuram, and further remanding the matter to the trial Court with a direction to give opportunity to both parties to amend the plaint as sought for in I.A.No.587 of 2010, receive documents in I.A.No.585 of 2010 and permit them to pay required Court fee and adduce evidence on the point of possession, to consider the effect of subsequent amendment and decide point of limitation on merits, and accordingly, allowed I.A.Nos.587 and 585 of 2010, and dismissed the other petitions for temporary injunction and receiver petitions. 2. Originally, O.S.No.82 of 2004 was filed for permanent injunction restraining the defendants, their men and nominees from ever interfering with the plaintiffs’ peaceful possession and enjoyment over the plaint schedule property claiming that plaintiff Nos.1 and 2 are brothers and sons of late Chandrayya Naidu and plaintiff Nos.3 and 4 are brothers and sons of Challayya Naidu. Plaintiff Nos.1 to 4 are cousins. Plaintiff No.5 is the maternal aunt’s son of plaintiff Nos.1 and 2. Chandrayya @ Challayya Naidu, who is the father of plaintiff Nos.1 and 2, Mallayya Naidu, the paternal grand father of plaintiff Nos.3 and 4, Dungala Sanyasayya @ Sanyasi, father of plaintiff No.5 and B.Adinarayana filed O.S.No.124 of 1965 on the file of I Additional Subordinate Judge Court, Kakinada against Geddam Devudu and 43 others for declaration of their title to the plaint schedule properties and for recovery of possession after evicting the defendants therefrom along with some other reliefs, and the same was contested by the defendants, and later, it was compromised. As per the terms of the compromise, the right and title of the plaintiffs over Ac.52.34 cts out of the plaint schedule property should be declared and possession should be given to them. Accordingly, the compromise decree was passed on 23.10.1979. In pursuance of the said compromise, the plaintiffs therein and thereafter, the plaintiffs herein have been in possession and enjoyment of the said property, which corresponds to plaint schedule property herein as absolute owners. The defendants have no manner of right over the plaint schedule property. In pursuance of the said compromise decree, defendant Nos.1 to 17 and some others were given Ac.30.54cts out of the total extent of Acs.82.88 cts of land of the plaint schedule property in O.S.No.124 of 1965. Since then, the defendants herein and others have been in possession and enjoyment of the said land. The plaintiffs have nothing to do with the land fell to the share of the defendants as per the compromise. The plaintiffs raised cashew nut and mango trees in the plaint schedule property. They were also paying land revenue and the land revenue receipt, dated 24.02.1995, issued in the name of Medapureddy Chandrayya Naidu was filed. The defendants bore grudge against the plaintiffs and they murdered the father of plaintiff Nos.1 and 2 in broad day light on 29.11.1996 while he was proceeding to attend the Court of Munsif Magistrate, Tuni. Defendant Nos.1 to 17 along with others filed O.S.No.155 of 1997 on the file of I Additional Sub Court, Kakinada with regard to Acs.30.54 cts of land that fell to their share seeking permanent injunction and obtained an interim injunction in I.A.No.440 of 1997. Under the guise of interim injunction, the defendants herein are trying to enter into the plaint schedule property and take away mangoes, cashew nuts from the schedule property. 3. Defendant No.1 filed written statement. Defendant Nos.2 to 18 and 22 filed memo adopting the written statement of defendant No.1. The other defendants were set ex parte. 4. Defendant No.1 denied the averments of the plaint admitting the relationship and claims that he never interfered with the remaining Ac.52.34 cts, and claims that some others are not in possession and enjoyment of the plaint schedule property. The plaintiffs were never in possession of Ac.52.34 cts, which is part of schedule property in O.S.No.124 of 1965. The persons, who are in possession of the property, were not added as parties. The plaintiffs, fully aware that they cannot dispossess the persons who are in possession and enjoyment of Ac.52.34 cts, got filed the suit with false allegations. The schedule includes entire Ac.82.88 cts. The suit is bad for non-joinder of the parties and prayed for dismissal of the suit. 5. Basing on the above pleadings, the trial Court framed the following issues: 1. Whether the schedule property in an extent of Ac.52.34 cts has been in possession and enjoyment of the plaintiffs? 2. Whether there is interference from the defendants with the alleged possession and enjoyment of the plaintiffs? 3. Whether the suit for permanent injunction is maintainable without any relief for declaration? 4. Whether the plaintiffs are entitled to permanent injunction as prayed for? 5. To what relief?” 6. After considering the evidence and other material on record, the trial Court dismissed the suit. Aggrieved thereby, plaintiffs preferred an appeal along with interlocutory applications for amendment of plaint, for receiving of additional documents, for temporary injunction and for appointment of Receiver. The appellate Court allowed the appeal and remanded the matter to the trial Court. Challenging the same, defendants filed this Civil Miscellaneous Appeal. 7. Now the point for determination is whether the judgment of the appellate Court is correct, proper and legal? 8. Learned counsel for the appellants/defendants contended that the petition for amendment of plaint was allowed by virtue of which, the pecuniary jurisdiction of the trial Court, the structure of the suit and the relief sought for would be changed; and hence, he prays to set aside the impugned judgment. 9. On the other hand, learned counsel for the respondents/plaintiffs contended that in pursuance of the proceedings initiated under the Code of Criminal Procedure, 1973, possession was taken by the Mandal Revenue Officer; that the prayer for alternative remedy of recovery of possession was made; that therefore, the appellate Court rightly remanded the matter; that the appellants/defendants would be given opportunity to file additional written statement with regard to the amendment of the plaint and they can raise an objection; that the Court fee has also been paid and hence, there are no grounds to interfere with the impugned judgment and prays to sustain the same. 10. The remand of the case to the trial Court by the appellate Court is not a routine or casual manner. If the case falls under Rule 23 of Order XLI C.P.C., for the purpose of retrial only, remand can be ordered. The reason for remanding the matter is that petitions filed by the respondents seeking amendment of plaint for alternative prayer for recovery of possession and to receive the documents can be decided after adducing necessary evidence. 11. It is not in dispute before this Court that the suit was filed for grant of perpetual injunction against the appellants in respect of Ac.52.34 cts showing that the respondents were in possession and enjoyment of the property. A categorical finding has been recorded by the trial Court that the appellants disputed about the title of the respondents in respect of the plaint schedule property. The next question to be considered in a suit for injunction is about possession of the parties as on the date of filing of the suit. That aspect has to be decided basing on the evidence available on record by the appellate Court. Without considering this aspect, appellate Court allowed the amendment petition without assigning any reasons, which completely changes the structure of the suit. By virtue of amendment to Order VI Rule 17 C.P.C. in 2002, the amendment of plaint after the trial has commenced is not automatic or in routine manner. Unless it is shown that inspite of taking due deligence, the amendment petition was not filed, it cannot be allowed. By virtue of this amendment, the structure of the suit will be changed because in a suit for injunction, whether a person is in possession of the property or not, the alternative relief sought for is for recovery of possession, which is contradictory to the relief sought for in the main suit. Therefore, the appellate Court ought not to have allowed the amendment petition. Hence, the impugned judgment is set aside and the matter is remanded to the appellate Court. The appellate Court is directed to dispose of the appeal in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order after giving opportunity to both the parties. In view of the fact that no reasons were assigned, the order passed in I.A.No.585 of 2010 is set aside. However, that petition has to be decided after hearing both sides along with the appeal. The respondents paid the Court fee in pursuance of allowing the petition for amendment. The value of the Court fee paid by the respondents after allowing the amendment petition shall be refunded to them in accordance with the procedure laid down under law. 12. Accordingly, the Civil Miscellaneous Appeal is allowed. There shall be no order as to costs. _​_____________________ JUSTICE K.C.BHANU 09th September, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU C.M.A.No.641 OF 2011 Date:09.09.2011 AMD