HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.296 of 2010 Dated: -04-2010 Between: Sirumalla Peddanna & others. … Petitioners And Seelam Rajaiah & others. … Respondents HON’BLE SRI JUSTICE R. SUBHASH REDDY CIVIL REVISION PETITION No.296 of 2010 ORDER: This Civil Revision Petition, under Article 227 of Constitution of India, is filed by the plaintiffs in the suit in O.S.No.379 of 2008 on the file of the learned II Additional Senior Civil Judge at Warangal, aggrieved by the order, dated 2nd June 2009, passed in I.A.No.841 of 2009. By the aforesaid order, the application filed by the petitioners in I.A.No.841 of 2009 under Order 6 Rule 17 of C.P.C., seeking amendment to the prayer made in the suit, is rejected by the impugned order. Hence, this revision. The petitioners herein have filed a suit for declaration and consequential injunction, based on the documents, dated 7th February 1973 and 19th July 1973. In the suit, it is the case of the petitioners that their father has purchased the suit schedule property from the father of 1st respondent, as such, they came into possession and continued their possession as owners of the said land. It is also stated that they acquired title in respect of the suit schedule land by remaining in continuous possession of the same over a period of time. On the ground that on 19th February 2008, respondents 1 and 3 have executed a sham and nominal sale deed in favour of respondent No.2, the petitioners have approached the Court, seeking relief to declare them as owners and possessors in view of their purchase of the land covered by documents dated 7th February 1973 and 19th July 1973. In the aforesaid suit, written statement is filed, disputing the ownership of petitioners and also opposing the relief of declaration and injunction. After the written statement is filed, the petitioners herein have filed an application in I.A.No.841 of 2009, seeking the relief of specific performance of the agreement, treating the documents dated 7th February 1973 and 19th July 1973, as the agreements executed by the late father of respondent No.1. By the impugned order, the trial Court has rejected the said application, by recording a finding that the enforceability of agreements, dated 7th February 1973 and 19th July 1973, by allowing the amendment at this stage, is barred by limitation, and that the averments in the affidavit filed in support of the application are contrary to the pleadings on record. Heard learned counsel for the parties and perused the contents of plaint and written statement filed before the Court below. In this Civil Revision Petition, it is submitted by the learned counsel for petitioners that as much as the trial is not yet commenced, if the amendment is permitted, respondents will not be put to irreparable loss and injury. It is submitted by the learned counsel that the Court below, without considering the application in proper perspective, rejected the same. In support of his arguments, the learned counsel for petitioners has placed reliance on the judgments of this Court in the case of Razia Sirajuddin Vs. Eskay Builders & another[1], and in the case of T. Aswini Desai Vs. D.Koundinya[2]. On the other hand, it is submitted by the learned counsel appearing for respondents that the proposed amendments are inconsistent with the plea of plaintiffs in the suit and they introduce new facts, as such, if the application is allowed, it will change the character of the suit, and hence, the application is rightly rejected by the Court below. Reliance is placed on the judgments of this Court in the case of Gorantla Kondalarayudu Vs. M/s.Marvel Organics[3] and in the case of G.Chinna Ramalingaiah Vs. Pedda Sunkanna Goud & another[4] and on a judgment of the Supreme Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons & others[5]. A perusal of the pleadings on record indicate that it is the case of the petitioners that they have purchased the suit schedule land from the late father of the 1st respondent, by paying the full sale consideration amount, pursuant to the sale deeds, dated 7th February 1973 and 19th July 1973. The said documents are termed as sale deeds, and it is stated that pursuant to such sales, they came into possession along with other brothers and are enjoying the rights over the schedule property. It is also the case of the petitioners that a part of the property is also transferred by them, exercising the powers of ownership and possession. The written statement is filed, disputing the ownership and possession of petitioners. At this point of time, the petitioners have filed I.A.No.841 of 2009, to amend the suit to add the prayer for specific performance of agreement of sale. As per the original pleadings, it was never the case of the petitioners that the documents, dated 7th February 1973 and 19th July 1973, are agreements of sale, and that a further deed is to be executed in pursuance of the said agreements of sale. To plead for the relief of specific performance, it is fundamental to plead that at an earlier point of time, agreements were executed and inspite of readiness and willingness to get the regular sale deeds executed by paying the balance sale consideration amount, respondent is not ready to execute the same. In the suit filed, at first instance, there is no such plea at all, and contrary to the same, it is the definite case of petitioners that they became owners and came into possession of suit schedule property pursuant to the purchase made by their father through the sale deeds, dated 7th February 1973 and 19th July 1973, and no further document was to be executed. In that view of the matter, the primary questions, which falls for consideration are, by allowing this application, whether the pleas in the affidavit filed in support of this application are inconsistent with the original plea taken in the suit, and if that application is allowed, whether the character of the suit will be changed. With regard to an application filed under Order 6 Rule 17 of CPC, it is primarily to be considered that if such application is allowed, whether it causes prejudice to the case of the respondents, and further, whether such an amendment can be permitted or not, having regard to the averments made in the plaint. In the case of Razia Sirajuddin (1 supra), a learned Single Judge of this Court has held that in a suit for perpetual injunction, the amendment sought to incorporate the plea of specific performance of agreement of sale, can be permitted. It is held in the said judgment that the plea of limitation is a triable issue, as such, on the ground that the claim is barred by limitation, the case of the petitioner cannot be rejected. But, in the case on hand, having regard to the fact situation, this judgment is not helpful to the petitioners. In this case, it is to be noted that if the amendment is allowed, it will run contrary to the pleas, which are raised in the suit itself. In the case of T.Aswini Desai (2 supra), a learned Single Judge of this Court has held that in a suit for specific performance of the agreement of sale, amendment as sought by the plaintiff for partition of the schedule properties and allotment of property covered by agreement to his vendor’s share and for its possession, can be permitted. Having regard to the fact situation in the aforesaid case, which is different and distinct to that of the case on hand, said ratio also cannot be applied. In the instant case, it is to be noted that the suit is for declaration of title and possession, specifically pleading that the petitioners became owners by virtue of the documents, dated 7th February 1973 and 19th July 1973. Once they plead ownership and possession and seek for injunction based on such purchase, another plea, which runs contrary to the original plea in the suit, to the effect that they are willing to execute a registered sale deed so as to become owners, cannot be permitted. On the other hand, the judgment relied upon by the learned counsel for respondents in the case of Gorantla Kondalarayudu (3 supa), will support their case. In the said judgment, a learned Single Judge of this Court has held that if the proposed amendments are inconsistent and introduce new facts, such amendments cannot be permitted. In the case of G.Chinna Ramalingaiah (4 supra), a learned Single Judge of this Court has held that in a suit for permanent injunction, application for amendment of plaint to convert the same into the suit for specific performance and possession, cannot be allowed on the ground that plaintiffs would gain relief, which they had lost by efflux of time and allowing such an application will cause prejudice to the case of respondents. In the judgment in the case of Revajeetu Builders and Developers (5 supra), the Hon’ble Supreme Court has elaborately enumerated the governing principles to consider the applications filed under Order 6 Rule 17 of CPC. In the aforesaid judgment, the Supreme Court has held that the basic test, which must govern grant or refusal of amendment is whether such amendment is necessary or not, and also to consider the potentiality of prejudice or injustice, which is likely to be caused to the other side by such amendment. May be that so far as the plea of limitation is a triable issue, it cannot be the reason for rejection of application for amendment, but when the pleas which are taken in support of such amendment run contra to the averments in the plaint itself, and will result in changing the character of the suit, the application cannot be allowed. In this case, this Court is of the view that having regard to the averments made in the plaint, if any such application is allowed, it will be inconsistent with the original pleadings made in the plaint and it will cause great prejudice to the case of the respondents. It is also to be noticed that even the documents, which are sought to be enforced by specific performance, are dated 7th February 1973 and 19th July 1973. For the aforesaid reasons, the Court below has rightly rejected the application filed by the petitioners/plaintiffs, under Order 6 Rule 17 of CPC, by recording valid reasons. Having regard to the facts and circumstances of the case, I do not find any illegality or irregularity in the order passed by the Court below, which warrants interference in exercise of powers under Article 227 of Constitution of India. The revision petition is devoid of merit and it is accordingly dismissed. No order as to costs. ______________________ R. SUBHASH REDDY, J April 2010 ajr [1] 2009(5) ALT 733 [2] 2007(2) ALT 600 [3] 1997 (5) ALT 663 [4] AIR 1993 AP 47 [5] (2009) 10 SCC 84