HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY CIVIL REVISION PETITION No.368 of 2024

ORDER:

This Civil Revision Petition is filed assailing Order dated

21.12.2023 in I.A.No.2266 of 2023 in O.S.No.111 of 2010, passed by the XXVI Additional Chief Judge, City Civil Court, Hyderabad, wherein and whereby the application filed by the petitioner under Order VI Rule 17 of CPC r/w Rule 28 of Civil Rules of Practice was dismissed.

2. Heard Sri N.Ashok Kumar, learned Counsel for the petitioner and Sri A.Srinivas Goud, learned Counsel for respondent Nos.1 to 3.

3. Petitioner herein is defendant No.2, respondent Nos.1 to 3 are plaintiffs and respondent No.4 is defendant No.1 in the suit.

4. Brief facts of the case which led to filing of the present revision petition are that respondent Nos.1 to 3 filed a suit vide O.S.No.111 of 2010, against the petitioner and respondent No.4 for partition and separate possession of the suit schedule property and the said suit was dismissed for default on 22.02.2018; that respondent Nos.1 to 3 filed an application vide I.A.No.635 of 2018 for restoration of the suit and the same was allowed and suit was restored on 31.01.2023; that after restoration of the suit, evidence on behalf of respondent Nos.1 to 3/plaintiffs was concluded and evidence on behalf of defendants commenced and that when the matter was at the stage of cross-examination of D.W.1, petitioner filed an application for amendment of the written statement vide I.A.No.2266 of 2023.

5. Respondents No.1 to 3 filed the counter affidavit resisting the said application.

6. The trial Court, on due consideration of pleadings and contentions put forth by both the parties, dismissed the application vide impugned Order dated 21.12.2023, with an observation that petitioner sought amendment to incorporate the fact of passing of the decree in O.S.No.736 of 2011 filed by him and pursuant thereto, delivery of possession thereof to him and further observed that the same can be proved by producing certified copy of the decree, Panchanama and other certified documents and no further amendment is required to prove such facts. Aggrieved by the same, present revision petition is filed.

7. Learned Counsel for the petitioner would submit that respondent Nos.1 to 3 filed suit vide O.S.No.111 of 2010, for partition and separate possession of the suit schedule property, whereas, the petitioner filed a suit vide O.S.No.736 of 2011 for recovery of possession and damages in respect of the same schedule property and the same was decreed on 22.03.2018; that petitioner filed E.P.No.405 of 2022 for execution of the decree and the possession of the property was delivered to the petitioner by the Bailiff of the Court on 10.08.2022, under Panchanama and receipt, which was signed by respondent Nos.1 to 3/plaintiffs and legal heir of respondent No.4 i.e., respondent No.5. He further submitted that these subsequent developments are crucial and necessary for proper adjudication of the suit, therefore, petitioner filed an application seeking amendment of the written statement for incorporating Para Nos. 14(a) and 14(b). However, the trial Court, without considering the facts, nature of the suit and subsequent developments, dismissed the application with perverse observations. He further submitted that respondent Nos.1 to 3 are seeking partition and separate possession in respect of the suit schedule property, whereas, possession of the said property was already delivered to the petitioner on 10.08.2022 pursuant to order passed in E.P.No.405 of 2022 and therefore, the said facts and events are necessary to be incorporated in the written statement and as such, the proposed amendment is required for proper adjudication of the controversy between the parties and prayed to allow the revision petition.

8. Learned Counsel for the petitioner, in support of his contentions, has relied upon the judgments of the Hon’ble Apex Court in M/s Estralla Rubber Vs. Dass Estate (Pvt.) Ltd.,, AIR 2001 SCC 3295