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2019 Supreme(AP) 290

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. SEETHARAMA MURTI, J.
Kota Sambasiva Rao – Appellant
Versus
Kandepu Anasurya and Ors. – Respondents
C.R.P. No. 2389 of 2019
Decided On : 29-11-2019

Advocates:
Advocate Appeared:
For the Appellant : Y. Ramatirtha
For the Respondents: Doddla Yathindra Dev

Headnote:

Constitution of India,1950 - Article 227 - Code of Civil Procedure, 1908 - Order VI Rule 17 read with Sections 94 and 151 - Seeking amendment - Granted to carry out amendment - Plaintiff instituted suit against defendants her father and brother, for partition claiming a 1/3rd share in plaint schedule properties - During pendency of suit, 1st defendant/father died - An application in I.A. No. is filed under Order VI Rule 17 read with Sections 94 and 151 of Code of Civil Procedure, 1908, Code, for short seeking amendment of plaint to incorporate a pleading that 1st defendant father died intestate; and, on death of 1st defendant father Shares of plaintiff and defendant in plaint schedule property enlarged into a half share each and to permit plaint to be amended accordingly - Application was allowed and leave is granted to carry out amendment of plaint - affidavit in of examination in chief of plaintiff is filed into Court incorporating proposed amendment though plaint was not amended as per leave granted to carry out amendment of plaint – Held, Trial Court to extend time - In this backdrop of facts of case & nature of controversy and legal position obtaining, this Court finds, on careful examination, that trial Court exercised discretion judiciously and that trial Court is justified in extending time for carrying out amendment of plaint as per leave earlier granted - Before parting it is to be noted that learned counsel for defendant contended that plaintiff is at fault in not carrying out permitted amendment of plaint within time, therefore, while extending time sought for by plaintiff and allowing subject interlocutory application, trial Court ought not to have mulcted defendant with costs - Said contention of defendant merits consideration - Civil Revision Petition is dismissed

ORDER :

M. Seetharama Murti, J.

1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the unsuccessful 2nd respondent/2nd defendant assailing the order, dated 19.07.2019, passed in IA 188 of 2019 in O.S. No. 153 of 2014 on the file of the Court of the learned Senior Civil Judge, Mangalagiri.

2. I have heard the submissions of the learned counsel appearing for the revision petitioner/2nd defendant ('2nd defendant', for brevity); and, of the learned counsel for the 1st respondent/plaintiff ('plaintiff, for brevity). I have perused the material record.

3. From the pleadings & submissions, the following facts and aspects are perceptible: 'The plaintiff instituted the suit against the defendants, that is, her father and brother, for partition claiming a 1/3rd share in the plaint schedule properties. During the pendency of the suit, the 1st defendant/father died. An application in I.A. No. 1531 of 2014 is filed under Order VI Rule 17 read with Sections 94 and 151 of the Code of Civil Procedure, 1908, ('Code', for short) seeking amendment of the plaint to incorporate a pleading that the 1st defendant (father) died intestate; and, that on the death of the 1st defendant (father), the shares of the plaintiff and the 2nd defendant in the plaint schedule property enlarged into a half share each and to permit the plaint to be amended accordingly. The said application was allowed, on 29.06.2015, and leave is granted to carry out the amendment of the plaint. Thereafter, for various reasons, the amendments are not carried out in the plaint. Subsequently, the affidavit in lieu of examination in chief of the plaintiff is filed into Court incorporating the proposed amendment though the plaint was not amended as per the leave granted to carry out the amendment of the plaint. The 2nd defendant objected for filing such an affidavit [in lieu of examination in chief] with the proposed amendment as the amendments that were permitted are not incorporated in the plaint and as the contents of the chief examination affidavit are contrary to the pleadings in the original [unamended] plaint. The 2nd defendant also filed an application to eschew from the said chief affidavit, the averments related to the proposed amendments, which are not carried out in the plaint. The said application was dismissed by the trial Court. Aggrieved thereof, the 2nd defendant filed a revision viz., C.R.P. No. 7670 of 2018 before this Court; and, this Court by an order, dated 11.06.2019, allowed the said revision. Thereafter, the plaintiff filed the subject interlocutory application to extend time to carry out the amendment of the plaint and accord permission to amend the plaint as per the leave granted vide orders passed in I.A. No. 1531 of 2014. The said application was resisted by the 2nd defendant by filing a counter. However, overruling the objections, the trial Court allowed the said petition of the plaintiff with costs and extended time and permitted to carry out the amendment of the plaint as per leave earlier granted. Aggrieved thereof, the 2nd defendant is before this Court.'

4. The case of the 2nd defendant is this: 'The amendments proposed in the application are to be carried out normally within the time limit mentioned in the order of the Court granting leave; further, in the absence of any such time limit mentioned in the said order, the permitted amendments have to be carried out within fourteen days from the date of passing of the order permitting the amendment of the pleading. However, in the case on hand, the amendment of the plaint was not carried out. Order VI Rule 18 of the Code lays down that such permitted amendments of the pleadings are required to be carried out by a party, who has obtained leave to amend his pleadings, within the time granted therefor and if no time was specified then within fourteen days from the date of passing of the order. The consequence of failure to amend the pleadings within the period specified

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