VEMURA RAMASUBBAYYA Vs. BOLLU SAROJINI

JUDGEMENT

(1.) This is a revision petition filed under section 115, Civil Procedure Code, against the order in LA. No. 1517 of 1973 in A.S. No. 102 of 1967 on the file of the Court of the Additional Subordinate Judge, Tenali. The appeal, A.S. No. 102 of 1967 was against the decree and judgment in O.S. No. 136 of 1964. The plaintiff in that suit sought certain mandatory and permanent injunctions against the defendants. The two injunctions sought were granted by the trial Court as prayed for. The defendant's appeal, A.S. No. 102 of 1967 was dismissed on 5th December, 1970. The decree when sought to be executed could not be executed, as the decree lacked the dimensions etc. which are very necessary before the mandatory injunction granted could be executed. The plaintiff thereupon filed LA. No. 1517 of 1973 in A.S. No. 102 of 1967 under sections 151 and 152 of the Code of Civil Procedure and also under Order 6, rule 17 praying that the body of the plaint, the prayer portion in the plaint, the plaint plan and the decree of the Court passed in A.S. No, 102 of 1967 should be amended. The application for amendment was opposed by the respondents-defendants. By its order, dated 26th Jure, 1974, the lower Court partly allowed the petition for amendment and refused relief in certain other respects. The petitioner-plaintiff had preferred the revision seeking to set aside the order of the Court below in so far as the reliefs by way of amendment were refused to him. The defendants have not preferred any revision petition.

(2.) The decree passed by the trial Court and affirmed by the appellate Court, in so far as the manandatory injunctions are concerned is as follows :-

(3.) In the counter-affidavit filed on behalf of the defendants the following contentions were raised : The Court has no jurisdiction to direct any amendment either in. the plaint, the plaint plan, or the decree after the disposal of the appeal. With regard to the width of the channel being one yard, no amendment could be ordered to the effect that both the bun. ds A Al BB1 lie in the land of the defendant's plot Z, as also the amendment which sets up a new case viz., that the width of one yard is from the middle of the northern bund A.B to the middle of the southern bund A A1. The case in the plaint was that including the bunds the width was one yard. The plaintiff under the guise of this amendment claiming to be that the same is necessitated by reason, of a mistake cannot introduce a totally new case. It was also contended that it cannot now be stated by the plain tiff that the entirety of A Al B Bl channel is in their plot 'Z' as the plaint plan clearly showed that A B bund was in the land of Narayya, while Al Bl bund is in Z plot. As this is a new case sought to be introduced by the amendment after the judgment is pronounced, the plaintiff cannot be permitted to amend the plaint. In fact, there is neither a plea nor evidence regarding the third prayer for amendment about the height and width of B G bund. It was contended that even in a suit the proposed amendments could not be allowed, as the same would, alter the case of the plaintiff by setting up an entirely new and inconsistent case. After the appeal also is disposed of, all the more the reason why such amendments cannot be granted. The mistakes complained of are neither clerical nor accidental errors. There is also delay in filing the application, as the Amin had filed his report long ago.