2013 Supreme(AP) 700
High Court of Andhra Pradesh
SANJAY KUMAR, J.
Venkata Ramana Arcade, represented by its Managing Partner, M. Radha Krishnaiah
Versus
Y. Vijaya Lakshmamma (died) & Others
Civil Revision Petition Nos. 4257 of 2012 & 1646 of 2013
Decided on : 02-09-2013
For the Petitioner:K.S. Gopalakrishnan, Advocate.
For the Respondents:T. Lakshmi Narayana, Advocate.
Headnote:Civil Procedure Code 1908 - Order 6 Rule 17 – Amendment of plaint - An amendment which changes fundamental character of the case already instituted should be refused---Amendment which is necessary in interest of justice must be allowed.
1. Sri Venkata Ramana Arcade, Nellore, a partnership firm, is the petitioner in these two civil revision petitions.
2. The genesis of this lis can be traced to O.S.No.138 of 1994 instituted by Y.Vijaya Lakshmamma and Y.Krishnavenamma, widows of late Y.Chandrasekhar Reddy, before the learned Senior Civil Judge, Nellore, against ten individuals seeking their ejectment from the plaint schedule property, viz., the building bearing D.No.283 (new D.No.284), situated at Ward No14, Trunk Road, Nellore. By judgment dated 09.07.2001, the trial Court decreed the suit. The same was confirmed in appeal by the learned District Judge, Nellore, in A.S.No.69 of 2001 on 29.04.2003 and thereafter, by a learned Judge of this Court in S.A.No.647 of 2003 on 19.07.2005. The judgment of this Court was tested before the Supreme Court of India in Special Leave to Appeal (Civil) No.21787 of 2005 but the same was dismissed by order dated 11.11.2005.
3. E.P.No.151 of 2005 was instituted on the file of the Principal Senior Civil Judge, Nellore, (hereinafter, ‘the Court below’) by the decree holders for execution of this decree against C.R. Padma, the fourth respondent herein. The plaintiffs in the suit having died, Y.Chandrashekar Reddy, the third respondent herein, came on record as the legal representative of the deceased second decree holder – Y.Krishnavenamma.
4. While so, Sri Venkata Ramana Arcade, Nellore, the petitioner firm, filed E.A.No.444 of 2005 in E.P.No.151 of 2005 under Order 21 Rules 97 and 101 CPC claiming that late Y.Vijaya Lakshmamma and late Y.Krishnavenamma, through their general power-of-attorney holder, Y.V. Ramana Reddy, the father of the third respondent herein, executed agreement of sale dated 13.12.1997 in favour of one R.Vijaya Varma; that R.Vijaya Varma filed O.S.No.33 of 2005 on the file of the learned III Additional District Judge, Nellore, for specific performance of the said agreement of sale; and that on behalf of the said R.Vijaya Varma, the petitioner firm was in possession and enjoyment of the E.P. schedule property since 22.07.2004.
5. Significantly, O.S.No.33 of 2005 was dismissed as settled out of court on 10.12.2010. Further, the execution of the agreement of sale dated 13.12.1997 was denied by the defendants in that suit.
6. Initially, the petitioner firm moved E.A.No.95 of 2009 in E.A.No.444 of 2005 under Section 146 CPC to implead respondents 5 and 6 therein as legal heirs of Y.Vijaya Lakshmamma, the deceased first respondent in E.A.No.444 of 2005. By order dated 14.02.2011, the Court below dismissed the said E.A. Aggrieved thereby, the petitioner firm filed C.R.P.No.4257 of 2012 before this Court. Sri K.S. Gopalakrishnan, learned counsel for the petitioner firm, however states that his client is not pressing C.R.P.No.4257 of 2012. The said statement is duly recorded.
7. Later, the petitioner firm filed E.A.No.487 of 2011 in E.A.No.444 of 2005 to reopen the said E.A. to enable it to file petitions for amendment of its claim petition; for recalling PW1; and for adducing further evidence. This E.A. was allowed by the Court below on 10.10.2011. The petitioner firm also filed E.A.No.488 of 2011 in E.A.No.444 of 2005 to re-call PW.1 for the purpose of adducing further evidence and for the purpose of filing amendment and evidence receiving petitions. The affidavit filed in support of this E.A. was identical to the affidavit filed in E.A.No.487 of 2011. This E.A. was also allowed by the Court below. The petitioner firm then filed E.A.No.234 of 2012 in E.A.No.444 of 2005 to grant leave to it to file certain documents. By order dated 02.08.2012, the Court below allowed the said E.A., subject to consideration of the proof/relevance and admissibility of the said documents at the time of their marking. Thereupon, the petitioner firm filed E.A.No.366 of 2012 under Order 6 Rule 17 CPC r/w Section 151 CPC seeking to amend its claim petition in E.A.No.444 of 2005. Thereby, the petitioner firm wanted to insert paragrap