E ANAND KUMAR Vs. A NARAHARI REDDY

JUDGEMENT

(1.) This civil revision petition was filed challenging the order dated 1-7-2002 of the II Additional District Judge, R.R. District, Hyderabad allowing I.A.No. 1000 of 2002 in A.S.No.8 of 2002.

(2.) Respondents 1 and 2 (plaintiffs) filed the said I.A.No. 1000 of 2002 under Order 6 Rule 17 C.P.C. for grant of permission to them to amend the plaint. The said amendment and the reasons are very lengthy and the same need not be extracted since they were already recorded by the appellate court. However, the amendment sought for by respondents 1 and 2 (plaintiffs) is to the effect that they may be permitted to amend the plaint from the one for declaration of title to the one for recovery of possession. The suit was originally filed for declaration of title and for injunction. The trial Court upon considering the evidence both oral and documentary on record decreed the suit in favour of respondents 1 and 2 (plaintiffs). Challenging the same, defendant No.12 preferred A.S.No.8 of 2001 to the II Additional District Judge, R.R. District, Hyderabad. During the pendency of the said appeal (A.S.No.8 of 2001), respondents 1 and 2 (plaintiffs) filed the said I.A.No. 1000 of 2002 alleging that they were dispossessed from the suit schedule property. In other words, they made complaint to the appellate Court before which the judgment passed by the trial Court in their favour is under scrutiny.

(3.) The learned counsel for the petitioner-defendant No.12 submits that the petition filed under Order 6 Rule 17 C.P.C. cannot be permitted in appeal inasmuch as the said amendment introduces totally a new cause of action. According to him, the original cause of action in the suit filed by respondents 1 and 2 (plaintiffs) was for declaration of title and for injunction. Now by way of this amendment the cause of action was sought to be changed as recovery of possession and hence the same amounts to substantial change of cause of action and introducing totally a new cause of action during the course of appeal. To substantiate his submission, the learned counsel for the petitioner (defendant No. 12) relies heavily upon a decision of the Calcutta High Court in N.B. Ghosh v. Balai Chand. In fact, the said decision was relied upon by the appellate Court at the instance of respondents 1 and 2 (plaintiffs). The learned counsel for the petitioner also relies upon the observations at paragraph 21 of the judgment of the said decision, which are in his favour as follows: