LAWS(APH)-2008-1-50

NAMALA GOVINDU Vs. B LAKSHMANNA

Decided On January 21, 2008
NAMALA GOVINDU Appellant
V/S
B.LAKSHMANNA Respondents

JUDGEMENT

(1.) THE instant revision petition is directec against the order dated 28/9/2007 passec by the learned Principal Junior Civil Judge adoni, in I. A. No. 1392 of 2007 in O. S. No. 291 of 2004. The unsuccessful petitioner is the revision petitioner herein. The petitioner is the plaintiff who filed the suit O. S. No. 291 of 2004 for the relief of foreclosure. Respondents herein are the defendants therein and the respondents in I. A. No. 1392 of 2007. They are resisting the suit and the suit is in the process of trial. At that stage the plaintiff seeks to file the petition i. A. No. 1392 of 2007 seeking relief of the court to amend the plaint by adding the relief of possession. That application was resisted by the respondents and under the impugned order the learned Judge on the premise that there was laches on the part of the petitioner in having filed the application at a belated stage and that the proposed amendment would change the entire nature of the suit; was not inclined to allow the application and consequently dismissed it.

(2.) ADMITTEDLY, the suit was filed for foreclosure. Complaining that the plaintiff was dispossessed, the plaintiff sought to amend the plaint by adding a new para seeking the relief of possession. Obviously the relief of foreclosure and relief of possession arise on two different causes of action. Nonetheless such different causes of action can be joined together in a multifarious suit. In this regard it is appropriate to consider the provisions of order II of the Code of Civil Procedure. While rule 1 of Order II postulates that the suit shall be framed so as to afford a ground for final decision upon the subjects in dispute and to prevent further litigation concerning them, Rule 2 postulates that every suit shall include the whole of the claim which the plaintiff is entitled to make i1 n respect of the cause of action. Rule 3 enables the plaintiff to unite in the same suit several causes of action against the same defendant. Rule 4, however, says insofar as recovery of immovable property is concerned no cause of action shall be joined without the leave of the Court except in cases of claims for mesne profits, claims for damages and claims which are based on the same cause of action. Proviso incorporated thereunder clearly says that nothing in that rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. It is obvious from the proviso that in a suit for foreclosure the relief of possession can be sought for and no leave of the Court need be obtained. A perusal of Rules 3 and 4 of order II makes the legal position clear. The court below is totally oblivious of the provisions of Order II of the Code of Civil procedure, having been of the view that the proposed amendment changes the nature of the suit, refused to grant the relief.

(3.) IT is no doubt true in view of the amended provisions of Rule 17 of Order VI, no amendment shall be allowed after the commencement of the trial unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. The proviso under Rule 17 of Order VI is not an absolute bar for filing the necessary application seeking the leave of the Court to amend the pleading. Non-diligence on the part of the plaintiff in certain circumstances may warrant the denial of such leave by the court. In the instant cases on the ground that there has been subsequent dispossession during the pendency of the trial, the plaintiff is seeking to amend the plaint by adding the relief of possession. Therefore, it cannot be a case where it can squarely be said that it is a case of non-diligence on the part of the plaintiff only. There has been such a dispossession or not is obviously a question of fact and will be considered by the Court at the time of granting the relief. Amendment of the plaint seeking particular relief is one aspect and proof thereof for granting the relief is altogether a different aspect. Merely because the plaintiff is permitted to amend the plaint by adding the relief he will not be automatically granted that relief. It all depends upon the type of evidence adduced in support of the plea by either of the parties. Such an amendment will prevent multiplicity of proceedings as otherwise once the suit is disposed of for foreclosure in favour of the plaintiff, he will be driven to file a fresh suit seeking relief of possession. That, in my considered view, can be prevented by permitting the plaintiff to suitably amend his pleadings.