T ASWINI DESAI Vs. D KOUNDINYA

JUDGEMENT

(1.) This Civil Revision Petition is preferred by the plaintiff against the order dated 6-10-2004 in l.A.No.350 of 2004 in O.S.No.652 of 1994 on the file of the Court of Principal Senior Civil Judge, Visakhapatnam, whereunder the application of the plaintiff under Order 6 Rule 17 of C'.P.C. for amendment of plaint was dismissed.

(2.) The facts, in brief, are as under : The revision petitioner/plaintiff filed O.S.No.652 of 1994 for specific performance of agreement of sale dated 17-10-1989 allegedly executed by the 1st defendant in favour of her deceased husband agreeing to sell the suit schedule property, which is one of the four portions in house bearing Door No. 16-2-3, Visakhapatnam. It is the case of the plaintiff that by the date of the suit agreement she was already in possession of the suit schedule property as a tenant and under the suit agreement while acknowledging the receipt of Rs.38,000/- as advance money it was agreed that the plaintiff need not pay the rents in respect of the house in her occupation and that no interest would be paid by the 1st defendant on the advance money. As per the said agreement the plaintiff stopped payment of rents. However, the 1st defendant evaded registration of sale deed. On the other hand, eviction proceedings were initiated by the 1st defendant's father claiming ownership to the house in question and alleging willful default in payment of rents. Left with no alternative, the plaintiff filed the suit for specific performance of the agreement of sale dated 17-10-1989. The 1st defendant filed a written statement denying the execution of the suit agreement and claiming that the suit property is the self-acquired property of his father- the 2nd defendant. However, even before the commencement of the trial, the 1st defendant died and the defendants 3 to 6 were brought on record as legal representatives of the deceased 1st defendant. After the issues were settled, during trial while the matter was coming up for the evidence of the defendants, the plaintiff filed I.A.No.350 of 2004 under Order 6 Rule 17 of C.P.C. for amendment of the plaint by adding a further relief of partition of the properties shown in A-schedule into two equal shares and to allot one such share to the 1st defendant including the property agreed to be sold by the 1st defendant under the suit agreement. It was pleaded that in view of the specific recital in the suit agreement that the suit schedule house was joint family property, she was advised to amend the plaint suitably by adding the additional relief of partition. It was further pleaded that the said relief could not be sought in the suit initially filed due to certain lapses on the part of the counsel appearing for the plaintiff at that point of time. The said application was opposed by the 2nd defendant and the Court below by order dated 6-10-2004 dismissed the application holding that the proposed amendment, if allowed, would change the character of the suit. It was also observed that the application for amendment which was filed at a belated stage is impermissible. The said order is under challenge in this Civil Revision Petition. I have heard the learned Counsel for both the parties and perused the material on record.

(3.) The learned Counsel for the petitioner contended that since the suit was still coming up for further evidence of the defendants the Court below ought not to have dismissed the petition on the ground of delay. The learned Counsel further contended that at any rate mere delay is not a ground for rejection of the application for amendment of pleadings. On merits, the learned Counsel contended that since admittedly in the suit agreement itself it was mentioned that the schedule property was ancestral property, the Court below was not justified in holding that the proposed amendment is illusory and it would change the character of the suit. The learned Counsel further contended that under Section 22 (2) of the Specific Relief Act, 1963 the relief of partition and separate possession can also be asked in addition to the decree for specific performance at any stage of the proceedings. On the other hand, the learned Counsel for the respondents contended that the suit itself was misconceived since the order of eviction in respect of the very same property was already upheld by this Court. It is also contended that the proposed amendment which is contrary to the settled principles of law was rightly disallowed by the Court below. At the outset, the prayer in the suit initially filed may be extracted hereunder :