PATTAN BABU KHAN Vs. TUMMALA SESHI REDDY

JUDGEMENT

(1.) This civil revision petition under Article 227 of the Constitution of India is filed by the defendant assailing the orders dated 10.9.2012 of the learned Principal Senior Civil Judge, Guntur, made in IA No. 1388 of 2012 in OS No. 172 of 2011 filed by the plaintiff under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure (for short, 'the Code') requesting to accord permission to amend the schedule annexed to the plaint in regard to the measurements and the extent of the plaint schedule property. The facts, which are necessary for consideration, in brief, are as follows: "The plaintiff had filed the suit against the sole defendant for recovery of possession of the plaint schedule property after evicting the defendant therefrom and for recovery of arrears of rent and profits. The defendant had filed a written statement resisting the suit, but admitting the jural relationship of landlord and tenant and had inter alia contended that the rent payable by him to the plaintiff is Rs. 1,300/- per month. While the trial in the suit was in progress, the plaintiff had filed the interlocutory application seeking amendment of the schedule of the plaint in regard to the measurements and the extent of the property. In support of the said request for the amendment of the schedule of the plaint, the plaintiff had urged the following grounds: 'The plaintiff is the absolute owner of the plaint schedule property. The plaintiff had purchased the property in an extent of 453 Square yards viz., vacant site under registered sale deed dated 2.5.1993 from Pattan Khasim Peera. After such purchase, the plaintiff had constructed four shops in approximately 175 Square yards of site out of the total extent of 453 Square yards and each shop property is of an extent of 60 Square yards (10" length x 30" width). One such shop was leased out to the defendant. But in the plaint schedule the entire extent of property i.e., 453 Square yards was shown. At the time of cross-examination of the plaintiff, the plaintiff had come to know about the fact that the extent of property was wrongly mentioned in the schedule of the plaint. Therefore, the plaintiff filed the petition for amendment of the schedule to delete the extent 453 Square yards and substitute in its place the extent of 60 Square yards (10" length x 30" width) and consequently amend the plaint schedule." The defendant had filed a counter inter alia stating as follows: "The plaintiff did not assign valid and cogent reasons in the affidavit filed in support of the petition. The plaintiff had got issued quit notice prior to the suit and in the said notice also, the schedule was shown as originally mentioned in the plaint. After the cross-examination was done on behalf of the defendant, and after coming to know of the lacuna, the plaintiff had come forward with the petition for amendment of the plaint schedule. Therefore, if the amendment is permitted the same adversely affects the defendant and, hence, the petition is not maintainable and is liable to be dismissed.' The petition for amendment filed by the plaintiff was allowed by the Court below. Therefore, the aggrieved defendant had filed this civil revision petition."

(2.) I have heard the submissions of the learned Counsel for both the sides.

(3.) The learned Counsel for the revision petitioner reiterated the contentions which are mentioned in the counter of the defendant/tenant. The main thrust of the argument is this: 'It was brought out in the cross-examination of the plaintiff that the measurements and the extent of the schedule property are not correctly given in the plaint schedule and also in the quit notice. Thereafter, to get over the lacuna, the plaintiff had come forward with a belated application seeking amendment of the schedule of the plaint. The proposed amendment changes the cause of action and adversely affects the defendant and causes prejudice to him. In view of the proviso to Order VI Rule 17 of the Code, the plaintiff who is not diligent is not entitled to seek amendment of the plaint since the trial of the suit had commenced.' On the other hand, the learned Counsel for the plaintiff/respondent had submitted that admittedly the defendant is a tenant in only one shop and that it is not the case of the defendant that he is the tenant of the entire extent of the property and that for the ultimate cause of justice and to avoid further litigation and for the purpose of determining the real questions in controversy between the parties it is just and necessary to permit the amendment and that the proposed amendment which was allowed by the trial Court does not change the cause of action or the nature of the suit.