IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD THE HONOURABLE SMT. JUSTICE RENUKA YARA CIVIL REVISION PETITION No.871 of 2024

06^th DAY OF APRIL, 2026 Between:

Mirza Karamatullah Baig.

…Petitioner AND Merajunnisa Begum and 6 others.

...Respondent

ORDER:

Heard Ms. Shashi Rekha. K, learned counsel for the petitioner and Sri R.A. Achuthanand, learned counsel for respondent No.1. Perused the entire record.

2. The Civil Revision Petition is preferred by the petitioner/respondent No.1/petitioner aggrieved by the order dated 10.01.2024 passed by the learned V Senior Civil Judge, City Civil Court at Hyderabad (‘Executing Court’), wherein E.A.No.201 of 2023 in E.A.No.164 of 2022 in E.P.No.125 of 2022 in O.S.No.1209 of 1998, has been allowed.

Brief facts:

3. The petitioner filed a petition in E.A.No.164 of 2022 under Order XXI Rules 97 to 101 and Section 47 read with Section 151 of CPC in E.P.No.125 of 2022 filed by respondent No.1 in O.S.No.1209 of 1998 on the file of the Executing Court. In said petition, respondent No.1 filed counter affidavit dated 09.08.2023 and thereafter, respondent No.1 filed E.A.No.201 of 2023 under Order VI Rule 17 of CPC to amend the counter- affidavit, the said E.A. was registered and it was allowed on 10.01.2024 by way of the impugned order. Aggrieved by the same, the present revision is preferred.

4. The issue involved in the present matter is about whether or not Order VI Rule 17 of CPC is applicable to a counter-affidavit filed in a claim petition and determination of said issue does not require reference to the facts of the case. Therefore, the facts of the case are not recounted.

Grounds of revision:

5. In grounds of revision, it is pleaded that a counter-affidavit does not fall within the definition of pleadings and therefore, cannot be amended under Order VI Rule 17 of CPC. Reference is made to judgment in the case of Mohd. Nayeem v. Sale Sayeed @ Babu Jabree, 2017 (5) ALD 395, wherein, it is held that an affidavit cannot be amended by filing an application under Order VI Rule 17 of CPC as affidavits are governed by Order XIX CPC and not under Order VI of CPC. Further, as per Section 3 (3) of General Clauses

Act, 1897 and Rule 34 of Civil Rules of Practice, a solemn declaration made on oath cannot be amended. Further, as per judgment in the case of Industries and Spirits Pvt. Ltd. v. Allied Blenders & Distillers Pvt. Ltd., 2020 (5) ALD 584, an affidavit filed in an interlocutory application can be amended by virtue of Section 151 of CPC, which is read with Order VI Rule 17 of CPC. It is pleaded that the judgment in Industries and Spirits Pvt. Ltd. (supra) is per incuriam and not binding on trial Courts. As per judgment in B. Eshwaraiah v. Presiding Officer, Labour Court-I, 2014 (4) ALT 118, when there are conflicting decisions by Benches comprising of equal number of judges, the decision of earlier Bench is binding unless explained by the later Bench of equal strength. It is urged that there is no provision under any law permitting an affidavit to be amended, as such sought to set aside the impugned order passed by the learned Executing Court.

Contentions of the petitioner:

6. The learned counsel for revision petitioner argued that no amendment can be permitted to affidavit filed as they are affirmations made on oath. There are catena of judgments which bar amendment to affidavits filed, as said affidavits are sworn statements. In that context, reliance is placed upon judgment of the Bombay High Court in the case of

Nandakumar Shankar Mhatre v. Dayanand Mahadev Mhatre, 1988 SCC OnLine Bom 330 , wherein it is held that a party once files an affidavit, cannot be permitted to amend the same. Further, reference is made to judgment of Allahabad High Court in the case of B. P. Pant v. Cadre Authority, 2002 SCC OnLine All 126, wherein it is held that a writ petition cannot be allowed to be amended which are founded on affidavit sworn on personal knowledge, on record, on information and on legal advice. It is he