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2016 Supreme(AP) 721

IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
M. SEETHARAMA MURTI, J.
M. Kamalamma and others - Petitioners
Versus
B. Doraswamy Reddy and others - Respondents
C.R.P. Nos.2091 and 2228 of 2016
Decided On : 28-12-2016

Advocates Appeared:
For the Petitioners:Mr. V.S.R. Anjaneyulu, Advocate.
For the Respondents:Mr. O. Uday Kumar, Advocate.

Headnote:

Constitution of India – Article 227 - Reopening the suit and for amendment of the plaint – Granting permanent injunction restraining the defendants, their men and agents from in any manner interfering with the 2nd plaintiffs possession of the plaint A schedule mentioned vacant site; declaring that the passage between points D, D1, E, E1 is exclusive passage of the 2nd plaintiff, which is more fully described in plaint B schedule, and for permanent injunction restraining defendants from interfering with possession of the same; declaring that the passage between points E, F and G, H is common passage, which is more fully described in plaint C schedule – Granting mandatory injunction directing the defendants to remove the encroachments made by them shown in red wash to a width of 8 feet and length of 40 feet, in plaint B schedule – Held, amendment of pleadings shall be allowed to avoid uncalled for multiplicity of litigation and that the dominant purpose of allowing amendment is to minimize litigation and the plea of limitation could be made a subject matter of the issue after allowing the amendment prayed for. Further, as per settled law, the merits of the proposed amendment cannot be gone into while considering an application filed for seeking amendment. Viewed thus, this Court finds that the ratio in the decision of the Supreme Court referred to supra cannot be applied to the facts of the present case. Thus, this Court is of the considered opinion that there are no legal impediments for allowing the amendment. In the discussion supra, this Court has already held that on facts, the amendment sought is bona fide and is permissible in the facts peculiar to the case. Further, any amendment which is necessary for effective adjudication of the lis and giving a quietus to the dispute between the parties, once and for all, can be permitted – Revisions allowed

ORDER :

M. Seetharama Murti, J.

These two revisions are filed, under Article 227 of the Constitution of India, by the unsuccessful 2nd petitioner/plaintiff, assailing the orders, dated 24th February, 2016, in I.A. Nos.45 of 2016 and 46 of 2016 passed by the learned I Additional Junior Civil Judge, Chittoor, filed respectively for reopening the suit and for amendment of the plaint.

2. I have heard the submissions of Sri V.S.R. Anjaneyulu, learned counsel appearing for petitioners and of Sri O. Udaya Kumar, learned counsel appearing for respondents.

3. I have perused the material record.

4. The facts, which are necessary to be stated as a prelude to this order, in brief, are as follows:

"The sole plaintiff brought the suit against the defendants seeking the following reliefs:

"(a) granting permanent injunction restraining the defendants, their men and agents from in any manner interfering with the 2nd plaintiff's possession of the plaint 'A' schedule mentioned vacant site;

(b) declaring that the passage between points D, D1, E, E1 is exclusive passage of the 2nd plaintiff, which is more fully described in plaint 'B' schedule, and for permanent injunction restraining defendants from interfering with possession of the same;

(c) declaring that the passage between points E, F and G, H is common passage, which is more fully described in plaint 'C' schedule.

(d) granting mandatory injunction directing the defendants to remove the encroachments made by them shown in red wash to a width of 8 feet and length of 40 feet, in plaint 'B' schedule;

(e) granting permanent injunction, restraining the defendants from in any manner obstructing the free ingress and egress of the 2nd plaintiff through the common passage between points G, H and E, F more fully described in plaint 'C' schedule;

(f) directing the defendants do pay the 2nd plaintiff the costs of the suit.""

The 1st defendant filed written statement denying the claims of the plaintiff. During the pendency of the suit, the sole plaintiff died and the 2nd plaintiff was impleaded as per orders dated 15.10.2009 in I.A. No.273 of 2009. It is pertinent to note that insofar as plaint 'A' schedule property is concerned, in the original plaint, a perpetual injunction to restrain the defendants and their men and agents from interfering with the 2nd plaintiff's possession of the plaint 'A' schedule property was sought and the said property is a vacant site. During the course of trial, application in I.A. No.86 of 2014 was filed for recalling PW-1, inter alia, stating that the 1st plaintiff died after filing of the suit, and that thereafter, the 2nd plaintiff came on record and he was examined as PW-1 and that in his deposition, by mistake, he stated that the original suit was filed for declaration of title and delivery of possession and that the same was not correct, and, therefore, to correct the said mistake in his deposition, he may be recalled. That application was resisted by the defendants and was eventually dismissed by the trial Court. In the revision in C.R.P. No.1415 of 2014, this Court, while confirming the orders of the trial Court, in the operative portion of the order, dated 21.12.2015, observed verbatim as follows:

"It is for the parties to advance arguments in the matter based on the oral and documentary evidence as well as pleadings in support of their respective claims and based on the same, the Court had to take a decision. If there are any inconsistent issues in the oral and documentary evidence and pleadings, it is open for the respective parties to advance their respective arguments on the said issue. Merely because, a witness wrongly deposed, the so-called witness cannot be called for further examination in that regard."

Thus, while disposing of the revision, this Court made observations to the effect that for a wrong statement made in the deposition of the witness, the witness need not be recalled and that the parties are at liberty to advance arguments based on the oral and documentary e























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