IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION NO.1773 OF 2008 DATED:24.06.2010 Between: A. Bharathi Bai … Petitioner And Ahmadunnissa Begum (died) and others … Respondents THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION NO.1773 OF 2008 ORDER: This Civil Revision Petition is directed against the order passed by the Junior Civil Judge, Mahaboobnagar, in I.A. No.111 of 2008 in O.S. No.250 of 2000, on 26.3.2008. The petition was filed under Order 6 Rule 17 of Code of Civil Procedure for amendment of the plaint claiming that after filing of the suit for declaration that the suit ABCD area is a public way and for permanent injunction restraining the first defendant from making any constructions in the suit area and after Advocate Commissioner was appointed by the Court and made an inspection of the suit property, it was reported that the first respondent made constructions in the suit area and consequently arose the necessity to amend the plaint for the additional relief of mandatory injunction for removal of the said structures by the first respondent and in the absence of the amendment, the plaintiff would suffer irreparable loss. The request was resisted by the third respondent, who is the legal representative of the deceased first respondent, contending that the request for the amendment to incorporate an additional relief, if allowed, will cause loss and injustice to him due to the introduction of a new case and any such amendment can be justified only if the alleged construction was made during the pendency of the suit. The evidence of P.W.1 itself disclosed that the construction was made prior to the suit. Second respondent – Municipality did not file any counter. The trial Court in the impugned order noted that the Advocate Commissioner appointed in I.A. No.80 of 2001 filed a report on 25.4.2001 and the plaintiff, as P.W.1, admitted in her cross-examination that the suit was filed after the constructions were made by the deceased – first respondent. The trial Court also referred to the admission of P.W.1 that when the first defendant and her people were making construction on the front side after completing construction on the backside, she filed the suit. The trial Court further noted that in the suit of the year 2000, the evidence of both sides was completed and the suit was at the stage of arguments. At this stage, the present petition was filed. The trial Court also referred to the amended Order 6 Rule 17 of CPC prohibiting any application for amendment after the commencement of the trial unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. While agreeing with the principle that amendment of plaint can be allowed to avoid proliferation of litigation, the trial Court referred to the fact about knowledge of constructions made by the first defendant, for the plaintiff. In spite of it, the request was made more than six years later after the report of the Advocate Commissioner due to which it cannot be said that the plaintiff exercised any due diligence before the commencement of the trial. The petition was hence dismissed. The revision petitioner challenges the said order on the ground that after the injunction order was passed in I.A. No.649 of 2000 on 17.8.2001, the constructions were made in violation of the same as observed by the Advocate Commissioner and therefore the constructions, which became known to the plaintiff only in 2007, have to be made subject of the relief of mandatory injunction. The amendment would not give rise to a new case as the new constructions were made by third respondent by violating the injunction. The learned counsel for both the parties are heard. The point for consideration is whether the request for amendment ought to have been considered to avoid multiplicity of proceedings. After the amendment of the Code of Civil Procedure by the Central Act No.22 of 2002 with effect from 1.7.2002, a prohibition has been incorporated by the proviso to Rule 17 of Order 6 of CPC against allowing any application for amendment after commencement of the trial unless the Court can come to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. While it is true that all amendments for comprehensive determination of questions in controversy between the parties ought to be allowed at any stage, still, such liberal attitude towards requests for amendment now would be qualified by the necessity to exercise due diligence by the party, more particularly when it comes up with a request for such an amendment after commencement of trial. The learned Advocate for the petitioner referred to the decision in R. Vikram v. Smt. Meena Ben Patel[1] wherein the learned Judge refused to interfere with the judicial discretion exercised by the trial Court in allowing an application for amendment. That was a case where the learned Judge found that the trial Court was thoroughly satisfied that in the light of the events before it, the amendment was necessary instead of driving the parties to another litigation, as no substantial changes were brought in the respective pleadings of the parties. It is thus obvious that the conclusion was more based on the facts and circumstances of that case and, at any rate, it is clear that this Court will not interfere with the judicial discretion exercised by the trial Court in such matters but for any strong and compelling reasons. In the present case, it is true that in I.A. No.649 of 2000 in O.S. No.250 of 2000 a temporary injunction was granted in favour of the plaintiff against the defendants from raising any constructions in the suit land, on contest, on 17.8.2001. It is also true that the trial Court observed in its order that any construction made will affect the right of the plaintiff on the suit land which cannot be compensated otherwise. However, as seen from the impugned order, an independent Advocate Commissioner appointed in I.A. No.80 of 2001 found even by 25.4.2001 that there was existence of constructions in the suit property. In the contested order on the injunction petition, this aspect of the Commissioner’s report does not appear to have been adverted to and in the impugned order, it was also noted that the plaintiff herself in her cross-examination admitted about the existence of the constructions even prior to the suit. If the plaintiff thus had the knowledge of any constructions made and being made even before filing of the suit and if the Advocate Commissioner reported the same to the Court as long back as on 25.4.2001, the plaintiff cannot be claimed to have exercised due diligence before the commencement of the trial in not making the request for the proposed amendment till six years after the filing of the suit in the year 2000. The restricted jurisdiction being exercised in revision cannot enure to the benefit of the revision petitioner in the light of the sound reasoning given by the trial Court for not considering the request of the revision petitioner for amendment of the plaint in such circumstances. Therefore, this Court cannot interfere with the impugned order and the revision petition fails. Accordingly, the Civil Revision Petition is dismissed. No costs. _____________________ (G. BHAVANI PRASAD, J) 24.06.2010 bnr [1] 2009 (5) ALT 474