HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.4116 OF 2009 DATE:20-11-2009 BETWEEN: Sathi Gopala Reddy …Petitioner AND R.V.M. Ramaratna Rao & Others …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY C.R.P. No.4116 OF 2009 ORDER: This revision by the plaintiff under Article 227 of Constitution of India is directed against the order of III Additional District Judge, Kakinada, dated 24.07.2009 dismissing I.A.No.2213 of 2009 in O.S.No.3 of 2001 filed under Order VI Rule 17 read with Section 151 C.P.C. seeking permission for amendment of the plaint. Heard Sri C.V.Mohan Reddy, learned senior counsel appearing for the petitioner; Sri G.Manohar, learned counsel appearing for the respondents 2 to 4; and Sri S.Ravi, learned senior counsel appearing for the other respondents and perused the material on record. For the sake of convenience, the parties hereinafter will be arrayed as per their array in the suit. The petitioner-plaintiff instituted the above suit seeking specific performance of an agreement of sale, dated 6.9.1993 executed by the 1st respondent-1st defendant agreeing to sell the suit schedule property for a sum of Rs.20.00 lakhs. According to the plaintiff, the 1st defendant is the absolute owner of the suit schedule property by virtue of a registered will deed, dated 5.4.1959. Earlier, when the suit in O.S.No.34 of 1982 filed by the 1st defendant’s mother-Rao Savitri Devi for maintenance on the file of Principal Senior Civil Judge, Kakinada was decreed, to defeat the same, the 1st defendant having colluded with defendants 2 to 4 got filed a collusive suit by the 3rd defendant and obtained a decree. But the property got by the 1st defendant by virtue of a will can never be thrown into joint family, and that basing on the alleged collusive decree, the defendants 3 and 4 cannot have rights of whatsoever over the suit schedule property. The 1st defendant in order to discharge the debts put up the suit schedule property for sale and the plaintiff agreed to purchase the same for a consideration of Rs.20.00 lakhs under the suit agreement, dated 6.9.1993 and the 1st defendant received a sum of Rs.2.00 lakhs on the same date being advance sale consideration. Further the 1st defendant agreed that the sale deed would be executed after settling all the disputes within one year from the date of the agreement, but evading the execution of sale deed on one pretext or the other. Hence the suit for specific performance. 1st defendant has not filed any written statement. Whereas, defendants 2 and 3 filed a written statement and defendants 6, 7, 9 and 12 filed a separate written statement in August, 2001 denying and disputing the plaint averments. On the basis of the rival pleadings, the following issues were settled for trial: “1. Whether the agreement of sale deed dated 6.9.1993 executed by the 1st defendant in favour of the plaintiff is true and valid? 2. Whether the 1st defendant made an endorsement on 22.3.1995 agreeing to execute the sale deed in favour of the plaintiff on or before 31.12.1997? 3. Whether the 1st defendant executed a General power of Attorney in favour of the 5th defendant on 2.1.1992? 4. Whether the sale deeds executed by the 5th defendant in favour of defendants 2 to 21 are binding on the 1st defendant or not? 5. Whether the plaintiff is entitled to ask the defendants 2 to 21 to execute a sale deed in his favour in respect of the suit schedule property? 6. Whether the plaintiff is entitled for the relief of specific performance of agreement dated 6.9.1993? 7. Whether the plaintiff is entitled for refund of an amount of Rs.20,00,000/- as alternative relief? 8. To what relief?” When the suit was coming up for arguments from 25.4.2008, the plaintiff was not ready for arguments and went on taking adjournments on one pretext or the other. At one point, he filed a petition to recall P.W.3 and after recalling, Exs.C.1 to C.8 were marked on 11.7.2009 and thereafter, the matter was again posted for arguments. During the course of arguments, plaintiff filed I.A.Nos.4329 and 4330 of 2008 for summoning certain documents from the Sub-Registrar’s office and to mark the same, but however, the said applications were dismissed on 21.1.2009 and the revisions filed against the said orders were also dismissed by this Court. Later, on defendants filing written arguments on 15.6.2009, plaintiff though took time for filing written arguments filed the present impugned I.A. seeking to amend the plaint as follows: “1. The decree in O.S.No.197/85 and the decree in O.S.No.28/89 are illegal, invalid under law and they are void under law. The property of the 1st defendant is the separate property of the 1st defendant and he got the property by virtue of the Will executed by his father on 5.4.1959. When the 1st defendant got the property by virtue of the Will he has no right to blend the property. There are no joint family properties to blend the property got by the 1st defendant under Will. Thus the decree in O.S.197/85 and the decree in O.S.28/1989 are illegal, invalid and not binding on the plaintiff. It is further submitted that the above decrees are collusive decrees obtained to defeat the maintenance claim in O.S.No.34/1982. 2. The next plea that was required to be taken by the plaintiff is that the sale deeds obtained by defendants 6 to 21 are fraudulent documents and they are brought into existence on fake stamp papers and also the defendants 6 to 21 created documents without any manner of right. The defendants 2 to 4 have no manner or right to execute any document in favour of defendants 6 to 21 as they have no right in the property.” Contesting the impugned I.A., the defendants 2,3 and 6 to 13 filed counters and by bringing it to the notice of the lower Court about posting the suit on various dates for arguments at the instance of the plaintiff and the earlier applications filed by him and their dismissal, contended that the plea taken by the 1st defendant in the earlier proceedings in O.S.Nos.197 of 1985 and 28 of 1989 were negatived by the Courts on merits and therefore, the plaintiff who entered into an agreement of sale with the 1st defendant cannot question the legality and validity of the findings recorded therein and is bound by the said decrees and therefore, the amendment sought to be carried out to the plaint, particularly at the stage of arguments, is liable to be rejected. The lower Court in the impugned order after extracting the earlier pleas taken by the plaintiff as aforementioned, held that the plaintiff even by the date of filing of the suit was aware of the judgments and decrees passed in the earlier suits in O.S.Nos.197 of 1985 and 28 of 1989, and that he took the plea in para 4 of the plaint that the defendants 2 to 4 have no right to say that the suit schedule property is joint family property and therefore, holding that the plaintiff was within the knowledge of the factum of the earlier decrees even by the date of filing of the suit rejected the plea of the plaintiff for the proposed amendment to the plaint. With regard to the another prayer of the plaintiff to recall D.W.4, it was observed that it is not as if immediately after the cross- examination was over it was noticed by the plaintiff that some important points were forgotten to be put to the witness-D.W.4 and on the other hand, the matter was underwent several adjournments for the purpose of arguments and that in the affidavit there is no averment as to on what point the plaintiff has to cross-examine the said witness and holding so, dismissed the impugned I.A. Sri C.V.Mohan Reddy, learned senior counsel appearing for the plaintiff-revision petitioner contends that the proposed amendment if allowed, will not cause any prejudice to the defendants nor changes the nature of the suit and though the necessary pleadings were taken out in the plaint, for clarificatory purpose to give the particulars of the suits, the amendment is now sought to be carried out and therefore, the lower Court ought to have allowed the same. Per conra, Sri G.Manohar, learned counsel representing the respondents 2 to 4 by placing reliance on the decision of the Apex Court reported in Revajeetu Builders & Developers v. Narayanaswamy & Sons (2009 (13) SCALE 241) would contend that the plaintiff while seeking amendment of the plaint failed to satisfy the important condition that whether such amendment is necessary for determination of the real question in controversy and having failed to satisfy the same, he cannot be permitted to amend the plaint. It is further contended that the agreement of sale which is now sought to be enforced contains all the details of the above suits and judgments passed therein and having entered into such agreement, the plaintiff now cannot question the validity of the decrees when the 1st defendant himself failed in his attempt and suffered with the decrees in the said suits. Sri S.Ravi, learned senior counsel representing the respondents 6 to 13 would contend that the amendment now sought to be carried out was very much within the knowledge of the plaintiff even before filing of the suit, and that in case, if this Court thinks fit to allow the said amendment, necessary direction may be given to the lower Court for early disposal of the suit. From the pleadings of the parties and the issues framed as extracted above, there is no issue to the effect that whether the judgments and decrees suffered by 1st defendant in earlier suits in O.S.Nos.197 of 1985 and 28 of 1989 are collusive and whether they bind upon the plaintiff or not. Admittedly, the plaintiff entered into the agreement of sale on 6.9.1993 which is long after the disposal of the suits in O.S.Nos.197 of 1985 and 28 of 1989 and the details of the said suits were also incorporated in the said agreement of sale. Therefore, it is evident from the suit agreement itself that the plaintiff was aware of the earlier proceedings in which the 1st defendant suffered with decrees. The rights for which 1st defendant is entitled to under the above decrees over the suit schedule property will only be acquired by the plaintiff being the vendee. The question ‘whether the 1st defendant can blend the suit schedule property when there are no joint family properties, which he received under the registered Will’ was the subject-matter of the suits in O.S.Nos.197 of 1985 and 28 of 1989 and the same again cannot be an issue in the present suit by carrying out the amendment which is now sought to be introduced by the plaintiff. Whatever the rights the 1st defendant had over the suit schedule property as on the date of agreement of sale will only be passed on to the plaintiff. In view of the same, the impugned order passed by the lower Court dismissing I.A.No.2213 of 2009 does not suffer from any manifest illegality warranting interference by this Court. The revision is accordingly dismissed. Since the suit is of the year 2001, the lower Court shall dispose of the suit within a period of two months from the date of receipt of a copy of this order uninfluenced by any of the observations made by it while disposing of the impugned I.A. or by this Court while dismissing the revision. No order as to costs. _______________ A. GOPAL REDDY, J. NOVEMBER 20, 2009 Tsr.