IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: AT HYDERABAD TUESDAY, THE FIRST DAY OF JUNE TWO THOUSAND AND TEN PRESENT: HONOURABLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.6068 OF 2009 Between: Mrs. Sobhana Payush Pansuriya W/o. Paresh Pansuriya and another …. Petitioners AND K. Prabhakar S/o. K. Narayana and another …. Respondents HONOURABLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.6068 OF 2009 ORDER: This Civil Revision Petition is filed against the order dated 03-11-2009 in I.A. No.392 of 2009 in O.S. No.225 of 2005 on the file of the XII Additional Senior Civil Judge, (Fast Track Court), City Civil Court, Secunderabad, whereunder and whereby the petition under Order VI Rule 17 read with Section 151 C.P.C. to amend the plaint, was allowed. 2. The petitioners herein are defendant Nos.1 and 2; respondent No.1 herein is the plaintiff; and respondent No.2 herein is the defendant No.3, in the suit. 3. The brief facts that are necessary for disposal of this revision may be stated as follows: Respondent No.1 – petitioner in I.A. No.392 of 2009 (plaintiff) has filed a suit for grant of permanent injunction restraining the petitioners and respondent No.2 – defendants from interfering with his possession and enjoyment over the suit scheduled property, having been purchased the same by virtue of a registered sale deed dated 09- 08-2004 from one S. Ananda Rao. The defendants filed written statement denying the title of the plaintiff. Therefore, in view of the stand taken by the defendants, the plaintiff filed the petition to amend the plaint seeking the relief of declaration of title and possession of the suit scheduled property. Petitioner No.2 - respondent No.2 in I.A. No.392 of 2009 (defendant No.2 in the suit) filed a counter denying the allegations in the affidavit filed in support of the petition filed by the plaintiff, stating that the plaintiff knowing fully well that he has neither title nor possession over the suit scheduled property, filed the suit for injunction and tried to dispossess the defendants therefrom and therefore he prayed to dismiss the petition. Whereas the respondent No.2 – respondent No.3 in I.A. No.392 of 2009 (defendant No.3 in the suit) also filed a counter stating that the relief claimed is barred by limitation and that the plaintiff wanted to introduce a new cause of action for the relief of declaration and possession, which will cause prejudice to the case of the defendants and therefore, she prayed to dismiss the petition. 4. After considering the material on record, the trial Court allowed the petition by observing that it is obvious that the proposed amendment is sought to set at rest the real controversy between the parties and accordingly allowed the petition. Challenging the same, the present revision is filed. 5. Learned counsel for the petitioners contends that the requirements under proviso to Order VI Rule 17 CPC have not been fulfilled; that there is no allegation that inspite of taking due diligence, respondent No.1/plaintiff could not plead in the plaint with regard to the declaration of title and recovery of possession; that if the proposed amendment is allowed, it would create a new cause of action; that the counter filed in the injunction application would clearly go to show that the title of respondent No.1/ plaintiff has been denied and therefore, Article 58 of the Limitation Act would govern the issue, but the trial Court erroneously held that Articles 64 & 65 of the Limitation Act would apply to the facts of the case; that the relief of declaration claimed within 3 years from the knowledge of denial of title of respondent No.1/plaintiff and therefore, a perverse finding has been given by the trial Court and hence, prayed to set aside the impugned order. 6. On the other hand, learned counsel appearing for respondent No.1/plaintiff contends that in view of the pleadings in the written statement and the counter, the present application is filed; that the question of limitation is a mixed question of fact and law which has to be decided after adducing evidence; that the powers of this Court under Article 227 of the Constitution are only supervisory; that the extent and location of the plaint schedule property is also disputed, and in order to settle the controversy once for all, the trial Court rightly allowed the amendment petition and there are no perverse findings in the order of the trial Court so as to call for any interference of this Court and therefore he prays to dismiss the revision. 7. No doubt, the powers of this Court under Article 227 of the Constitution are supervisory in nature, which can be exercised to see whether the subordinate Courts are acting within their bounds. If the findings are not based upon any material on record or a perverse finding has been given, then, certainly the powers under Article 227 of the Constitution can be exercised. 8. Originally, the suit is filed for perpetual injunction. It is not in dispute that in the first instance, a temporary injunction was granted for a particular period and thereafter, the injunction has not been extended. It is also not in dispute that the petitioner No.2 filed counter in I.A. No.372 of 2005 on 11-03-2005 and the written statement in O.S.No.225 of 2005 on 19-07-2006, wherein it was specifically denied about the title of the plaintiff. They were also disputing the location and extent of the land as mentioned in the plaint schedule. The suit is based upon a registered sale deed, said to have been executed by the Society in favour of the plaintiff. Therefore, the suit is based upon the registered document but not upon the possession of the property. 9. Article 58 of the Limitation Act applies to a suit for declaration simplicitor, and the suit must be filed within three years when the right to sue accrues. The trial Court observed that Articles 64 and 65 would be applicable to the facts of the case. Article 64 enables a suit within 12 years from dispossession for possession of immovable property based on possession and not on title, when the plaintiff while in possession of property has been dispossessed. This Article contemplates cases where suits are filed only on the strength of previous possession and it has nothing to do with title and the legal status of the person bringing the action is irrelevant. Similarly, Article 65 is for possession of immovable property or any interest therein based on title. The period of limitation in such a case is 12 years from the date of dispossession or when the possession of the defendant becomes adverse to the plaintiff. Therefore, prima facie, Articles 64 & 65 would not govern the facts of the preset case. Therefore, the proper Article, which would govern the facts of the present case, is Article 58. So, the limitation is three years from the date when the right to sue first accrues. In view of the fact that the defendants denied the title of plaintiff by filing counters in the month of March 2005 and written statement in the month of July 2006, the plaintiff ought to have filed the amendment petition within three years from the date of the denial of title of the plaintiff. Admittedly, the present petition is filed on 29-07- 2009, by that time, the right to sue accrued on the plaintiff with regard to relief of seeking declaration, is barred by limitation. 10. On this aspect, the learned counsel for the respondents relies on the decision in PANKAJA AND ANOTHER v. YELLAPPA (D) PER L.Rs.[1] wherein it was held in paragraph Nos.14 & 19 as under: “14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 19. We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entry 64 or 65 of the Limitation Act which question has to be decided in this trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D. John (supra), we set aside the impugned orders of the Courts below, allow the amendment prayed for, direct the trial Court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J. Leach and Co. Ltd. And another (supra).” This decision was rendered whereunder amendment petition was allowed, which was filed prior to amendment of the C.P.C in the year 2002 came into effect from 01-07-2002 as per Act 22 of 2002. The following proviso that was incorporated under Order VI Rule 17 C.P.C., in the amendment: “17. Amendment of pleadings:-- …………… Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial”. In view of the above proviso, no application for amendment shall be allowed after the trial has been commenced unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before commencement of the trial. 11. The learned counsel for the petitioners relied upon a decision in RAJKUMAR GURAWRA (Dead) Thr.L.Rs. v. M/s. S.K. SARWAGI AND CO. PVT. LIMITED AND ANOTEHR[2] wherein it was held thus: “It is settled law that grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation.” These requirements have not been fulfilled by respondent No.1. 12. Admittedly, the trial of the suit was commenced and the affidavit of the chief examination of the plaintiff was filed and the documents relied upon by the plaintiff have been marked. In view of the proviso to Order VI Rule 17 C.P.C., the plaintiff must show the due diligence for not filing such a petition prior to the commencement of the trial of the suit. The only ground stated in the affidavit filed in support of the petition is that filing of the present application has been necessitated based on the facts that were pleaded by the plaintiff and the defendants in the Court. Except that statement, there is no reason whatsoever stated with regard to due diligence. Therefore, the trial Court exceeded its jurisdiction in ordering the petition in as much as the requirements of the proviso to Order VI Rule 17 C.P.C. have not been fulfilled. Therefore, it can be said to be a perverse finding. For these reasons, the trial Court committed an illegality in allowing the petition, which is liable to be set aside. 13. Hence, the Civil Revision Petition is allowed setting aside the order dated 03-11-2009 in I.A. No.392 of 2009 in O.S. No.225 of 2005 on the file of the XII Additional Senior Civil Judge, (Fast Track Court), City Civil Court, Secunderabad. There shall be no order as to costs. _____________ JUNE 01, 2010 K.C. BHANU, J KTL [1] AIR 2004 SUPREME COURT 4102(1) [2] AIR 2008 SUPREME COURT 2303