KASINADHUNI KUMARESWARA RAO Vs. KAIVARAM RAJYALAKSHMAMMA AND OTHERS

JUDGEMENT

(1.) This revision petition arises out of an order made in I.A. No. 266/67 in O.S. No. 72/66. The plaintiff was the petitioner whose application for amendment of the plaint under order 6, Rule 17 C.P.C. was dismissed by the District Munsif, Kaikalur. The plaintiff had filed a suit for injunction against four defendants to restrain them from interfering with the suit property on the basis that the plaintiff-petitioner was a tenant of the 1st defendant on the provisions of the Andhra Tenancy act, he was entitled to protection. In his plaint he stated that the schedule property belonged to the minors, the son and daughters of defendant 1 by a compromise decree between them by which the first defendant was appointed as the property guardian. It is stated by the plaintiff that defendant 1 lease out the suit lands to defendant 2 and sold them to defendant 3. Defendant 4 has been helping the defendants and therefore he was also made a party. After the parties went to trial and evidence of both the plaintiff and defendants was recorded the plaintiff filed the present I.A. for amendment of the plaint seeking to obtain a declaration about his tenancy and also possession of the suit property in case the court came to the conclusion that he was not in possession on the date of the suit. In the affidavit filed along with the application, he stated that after filing the suit, he had obtained interim injunction in I.A. 113/66. The 3rd defendant who had purchased the suit land under a registered sale deed dated 6-4-1966 from the first defendant filed a petition I.A. No. 122/66 praying to vacate the ad-interim injunction contending that she has been put in possession of the schedule land by the first defendant on 6.4.66. Ultimately the court passed orders on 26-8-1966 in I.A. 113/66 appointing a receiver to take possession of the standing crop on the plaint schedule land and sell the same and deposit the proceeds in court. The crop was purchased by the 4th defendant. It was also stated that defendants 1, 2 and 4 are not in any manner interested in the subject matter of the suit. He further stated in the affidavit that he was advised to get the plaint amended by changing the name of the first defendant as - 1. Kaivaram Venkatappayya, 2. Bala Bharati, 3. Valli Vijayalakshmi, 4. Jayalakshmi being minors by guardian and mother Kaivaram Rajyalakshmamma and by including an alternative relief of possession against the third defendant since it may be urged on behalf of the defendants that the plaintiff was not in undisputed possession of the schedule property on the date of judgement, due to the supervening orders of the court appointing a receiver and selling the standing crop therein and in the event of the court finding that he was not in possession of the schedule land on the date of judgement his suit will be infructuous and he may be driven to the necessity of filing a suit for possession and there will be multiplicity of judicial proceedings. Therefore, he wanted to amend paragraph 10 of his plaint by adding there to a declaration that the plaintiff was a tenant in respect of the plaint schedule property and alternatively for possession of the schedule property from the third defendant who is the successor-in-title of the 1st defendant. In paragraph 12 which relates to the valuation of the suit property, he valued the alternative relief of possession of Rs. 1120/- being the value of 35 bags of paddy payable by the plaintiff towards the annual rent to the landlord at Rs. 32 per bag and paid court fee thereon. In paragraph 15 which deals with the relief portion he stated that in addition to declaration that he is the tenant in respect of the plaint schedule property he is entitled to a permanent injunction restraining the defendants from interfering with his possession and enjoyment of the schedule land and also asked for the alternative relief that he may be put in possession of the schedule property. It may be noted here that though the plaintiff stated in his affidavit that he was advised to get the name of the first defendant changed into the name of the minors per guardian the first defendant no such relief asked for in the petition that had accompanied the affidavit. The petition was restricted only to the amendments sought for by the plaintiff in paragraphs 10, 12 and 15 of the plaint.

(2.) The first defendant remained exparte in the suit and also in the petition. The 3rd and 4th defendants filed counter opposing the petition and the 2nd defendant adopted the contention of the third defendant. The main contentions raised by defendants 2 to 4 in their counters are:- (1) that the application for amendment was delayed and was filed after the entire suit was closed and was ready for hearing of the arguments and that the plaintiff had allowed 1 1/2 years to lapse; (2) that by the amendment the very structure of the suit will be converted or altered; (3) that by virtue of the amendment the court will lose the jurisdiction to the subject matter of the suit and no amendment resulting in depriving the court of its jurisdiction can be allowed.

(3.) The trail court dismissed the application holding that the amendment changes the very nature of the suit and a new case is sought to be made out by the plaintiff which cannot be permitted by amendment. It has also held that after the amendment the suit will be under the provisions of Section 29 of the A.P. Court Fees Act and not under Section 40 as claimed by the plaintiff and therefore it will be outside the jurisdiction of the court, and that no amendment should be allowed which will deprive the court of its jurisdiction.