KOTA SAMBASIVA RAO Vs. KANDEPU ANASURYA AND ORS.

JUDGEMENT

(1.) This Civil Revision Petition, under Article 227 of the Constitution of India, is filed by the unsuccessful 2nd respondent/2nd defendant assailing the order, dtd. 19/7/2019, passed in IA 188 of 2019 in O.S.no.153 of 2014 on the file of the Court of the learned Senior Civil Judge, Mangalagiri.

(2.) I have heard the submissions of the learned counsel appearing for the revision petitioner/2nd defendant ('2nd defendant', for brevity); and, of the learned counsel for the 1st respondent/plaintiff ('plaintiff', for brevity). I have perused the material record.

(3.) From the pleadings and submissions, the following facts and aspects are perceptible: 'The plaintiff instituted the suit against the defendants, that is, her father and brother, for partition claiming a 1/3rd share in the plaint schedule properties. During the pendency of the suit, the 1st defendant/father died. An application in I.A.no.1531 of 2014 is filed under Order VI Rule 17 read with Ss. 94 and 151 of the Code of Civil Procedure, 1908, ('Code', for short) seeking amendment of the plaint to incorporate a pleading that the 1st defendant (father) died intestate; and, that on the death of the 1st defendant (father), the shares of the plaintiff and the 2nd defendant in the plaint schedule property enlarged into a half share each and to permit the plaint to be amended accordingly. The said application was allowed, on 29/6/2015, and leave is granted to carry out the amendment of the plaint. Thereafter, for various reasons, the amendments are not carried out in the plaint. Subsequently, the affidavit in lieu of examination in chief of the plaintiff is filed into Court incorporating the proposed amendment though the plaint was not amended as per the leave granted to carry out the amendment of the plaint. The 2nd defendant objected for filing such an affidavit [in lieu of examination in chief] with the proposed amendment as the amendments that were permitted are not incorporated in the plaint and as the contents of the chief examination affidavit are contrary to the pleadings in the original [un- amended] plaint. The 2nd defendant also filed an application to eschew from the said chief affidavit, the averments related to the proposed amendments, which are not carried out in the plaint. The said application was dismissed by the trial Court. Aggrieved thereof, the 2nd defendant filed a revision viz., C.R.P.no.7670 of 2018 before this Court; and, this Court by an order, dtd. 11/6/2019, allowed the said revision. Thereafter, the plaintiff filed the subject interlocutory application to extend time to carry out the amendment of the plaint and accord permission to amend the plaint as per the leave granted vide orders passed in I.A.no.1531 of 2014. The said application was resisted by the 2nd defendant by filing a counter. However, overruling the objections, the trial Court allowed the said petition of the plaintiff with costs and extended time and permitted to carry out the amendment of the plaint as per leave earlier granted. Aggrieved thereof, the 2nd defendant is before this Court.'