G Sanyasamma vs. K Lakshmi

HONOURABLE SRI JUSTICE NINALA JAYASURYA CIVIL REVISION PETITION No.623 of 2021 ORDER:-

Heard Mr. K.Subrahmanyam, learned counsel for the petitioner and Smt.T.V.Sridevi, learned counsel for the respondents.

2. The present Revision Petition is preferred against the Orders in I.A.No.572 of 2017 in A.S.No.16 of 2015 on the file of the Court of Senior Civil Judge, Narsipatnam. The petitioner herein is the plaintiff in O.S.No.160 of 2007 on the file of the Court of Junior Civil Judge at Narsipatnam, which was filed seeking permanent prohibitory injunction against the respondents herein. The said suit was dismissed by Judgment and Decree dated 30.09.2015 against which, he preferred the above referred appeal. During the pendency of the appeal, the petitioner filed the above mentioned Interlocutory Application under Order VI, Rule 17 of Code of Civil Procedure (for short 'C.P.C.') seeking amendment of plaint. The said application was dismissed by lower Appellate Court, against which the present Revision Petition came to be filed.

3. Learned counsel for the petitioner raised several legal contentions and submitted that the Order under Revision is not sustainable as the learned Appellate Court failed to exercise the jurisdiction vested in it, in a correct perspective. It is his submission that the lower Appellate Court went wrong in dismissing the application seeking amendment of plaint on the premise that the petitioner/plaintiff did not chose to file such amendment petition, though the suit was pending for eight years and only after the result of the suit came against the petitioner/plaintiff, the amendment application was filed at appellate stage. He submits that the Appellate Court instead of examining the petition on its merits and the justification for filing at the stage of appeal, merely dismissed on the premise that an amendment petition cannot be filed at appellate stage, overlooking the settled legal proposition that an amendment can be sought, even at the appellate stage also. He further submits that the learned appellate Court except mentioning the rulings/decisions relied on by the petitioner/appellant, did not chose to discuss about the law laid down therein and assign any reason as to why the said decisions are not applicable to the facts of the case on hand. Pointing out that such an approach on the part of the learned Appellate Court is not tenable in law, the learned counsel seeks to set aside the order under Revision.

4. The learned counsel for the respondents, on the other hand, supported the Order under Revision contending, inter alia, that there is no illegality or material irregularity, warranting interference with the same by this Court in exercise of powers under Article 227 of the Constitution of India. She further submits that under the guise of the amendment, the petitioner/appellant is making an attempt to protract the litigation and the same cannot be permitted. Making the said submissions, the learned counsel, urges for dismissal of the Revision Petition as the same is devoid of merits.

5. This Court has considered the submissions made by the learned counsel for the respective parties and gone through the Order under Revision, apart from the material on record.

6. As pointed out by the learned counsel for the petitioner, the lower Appellate Court, dismissed the application for amendment of plaint mainly on the premise that the petitioner has not taken steps though the suit was pending for eight years and filed the same only after dismissal of the suit at the appellate stage. No attempt has been made to adjudicate as to whether such an amendment is justified and deserves to be allowed on examination of the averments made in support of the application and the counter thereto. Further, except stating that the decisions relied on behalf of the petitioner/appellant are not applicable, no reasons were recorded with reference to the purport and the law laid down in the said decisions/judgments. Such an approach is not tenable and the submissions made by the learned counsel for the petitioner in this regard merits acceptance.

7. For the aforegoing reasons, the Order under Revision, in the considered opinion of this Court, suffers from material

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irregularity and is not sustainable. Accordingly, the impugned order is set aside and the matter is remanded back to the learned Appellate Court for passing orders afresh, after giving opportunity to both sides, in accordance with law.

8. The Civil Revision Petition is allowed, accordingly. No order as to costs**.**

Miscellaneous Petitions, if any, pending in this Civil Revision Petition shall stand closed.

__________________ NINALA JAYASURYA, J

25.04.2022 BLV

NJS,J CRP No.623 of 2021

HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition No.623 of 2021 Dated 25.04.2022