An amendment of the plaint under Order VI Rule 17 CPC can be allowed even if it changes the nature of the suit, provided that the petitioners have exercised due diligence in filing the amendment petition.

ORDER :

1. This civil revision petition, under Article 227 of the Constitution of India, by the unsuccessful plaintiffs is directed against the orders, dated 26.02.2020, of the Junior Civil Judge, Muvva, dismissing I.A. No. 113 of 2020 (Old I.A. No. 1268/2018) in O.S. No. 95 of 2019 (old O.S. No. 96 of 2016) filed under Order VI Rule 17 read with Section 151 CPC.

2. Heard Sri Venkateswarlu Kolla, learned counsel appearing for the revision petitioners/plaintiffs and Sri Y. Subramanyam, learned counsel for respondent/defendant.

3. The case of the plaintiffs, in brief, is as follows:

(a) The plaintiff No. 1 is a private employee in the State of Odisha and as such, the affairs of his agricultural property are being taken care of by his father, 2nd petitioner/2nd plaintiff. The respondent/ defendant tried to trespass into and occupy the suit land on 17.06.2018 at about 9 A.M. But the 2nd petitioner thwarted the attempt of the respondent and the respondent went away. On 18.06.2018, the respondent got filed a false police complaint against the 2nd petitioner through his wife and the same was registered as FIR in Crime No. 90 of 2018 of Kuchipudi P.S. Subsequently, on 27.07.2018, in the absence of the petitioners, the respondent again highhandedly transplanted paddy seedlings in an extent of Ac. 0.12 cents, i.e. Ac. 0.09 cents, in the south and Ac. 0.03 cents on the east of the schedule property, by encroaching the same and merged into his lands on both sides by forming new boundary bund to some extent on southern side, removed to a certain extent of eastern bund in south east corner, and altered to some extent remaining eastern boundary bund and a stone was implanted on south east corner by him to suit his false encroachment, without having any right. The total extent of land encroached is Ac. 0.12 cents which is shown in ‘B’ schedule property. Therefore, the petitioners are constrained to file this petition seeking amendment to include the reliefs of declaration of title and also possession in respect of said Ac. 0.12 cents. The cause of action for inclusion of these two reliefs arose only subsequent to filing of the above suit, i.e. on 17.06.2018 and 27.7.2018. The 1st petitioner is also entitled to future mesne profits, as an average yearly income of Rs. 5,000/- will be yielding through ‘B’ schedule property.

(b) The amendment sought for by the plaintiffs read as under:

“(a) In the plaint schedule for the heading of “plaint Schedule filed on behalf of the plaintiff ‘A’ schedule filed on behalf of the plaintiffs” is to be substituted.

(b) To add the plaint ‘B’ schedule as follows:

‘B’ schedule filed on behalf of the plaintiffs

“Description of the land situated in the village of Bhatlapenumarru, Movva Sub-Registry, Krishna District. R.S. No. 555/3 Ac. 0.12 cents = 0.048 Htrts of wet land.

Boundaries:

East: Land of the defendant in R.S. No. 555/4

South: Land of the defendant in R.S. No. 555/5

West: Land of C.Santosh Kumar in R.S. No. 552 and land of the 1st plaintiff in R.S. No. 555/3

North: Land of the 1st plaintiff in R.S. No. 555/3.”

(c) After Para No. 12 of the plaint, the Para No. 12-A to be added as follows:

“(12-A) The 1st plaintiff came to know through the 2nd plaintiff that the defendant had tried to trespass into and occupy the suit land on 17.6.2018 at about 9.00 A.M. But, the 2nd plaintiff thwarted the attempt of the defendant and the defendant went away. On 18.06.2018 the defendant got filed a false police complaint against the 2nd plaintiff through his wife and the same was registered as FIR in Crime No. 90/2018 of Kuchipudi P.S. Subsequently, during the absence of both the plaintiffs, on 27-7-2018, defendant highhandedly transplanted paddy seedlings in a total extent of Ac. 0.12 cents, i.e. Ac. 0.09 cents on the south and Ac. 0.03 cents on the east of the schedule property, by encroaching the same and merged into his lands on both sides by forming new boundary bund to some extent on southern side and removed to a certain extent of eas