State of AP vs Special Court AP

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2012 SCC OnLine AP 649 : (2012) 5 ALD 484 : (2013) 1 ALT 653
In the High Court of Andhra Pradesh at Hyderabad

(BEFORE V.V.S. RAO AND B.N. RAO NALLA, JJ.)
State of Andhra Pradesh

Versus
Special Court under A.P. Land Grabbing
(Prohibition) Act, Hyderabad and others
WP No. 23000 of 2011
Decided on June 26, 2012
Page: 487
The Judgment of the Court was delivered by

V.V.S. RAO, J.:— The State of Andhra Pradesh through its District
Collector, Ranga Reddy District invoked the jurisdiction of this Court
under Article 226 of the Constitution of India seeking to quash the
order of the Special Court constituted under the Andhra Pradesh Land
Grabbing (Prohibition) Act, 1982 (the Act). By the said impugned order
dated 24.6.2011 made in IA No. 356 of 2011 in LGC No. 40 of 2003 the
Special Court rejected permission for amendment of the pleadings in
concise statement filed in LGC. As per Section 8(1) of the Act and the
Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988 (the Rules),
every applicant including the State alleging land grabbing by others
has to submit the case in Form No. 1, Column-15 that requires the
applicant to file concise statement of the claims. Be it also noted, if the
Special Court finds prima facie case of land grabbing as defined, it has
to take cognizance of the LGC and direct publication of the cognizance
in the Andhra Pradesh Gazette in Form-II A as required under the
proviso to Section 8(6) of the Act and Rule 7 of the Rules. Further,
Section 8(3) of the Act makes the provisions of the Code of Civil
Procedure, 1908 (CPC) and the Criminal Procedure Code, 1973 (Cr. PC)
applicable to the proceedings before the Special Court.
Government case
2. In the affidavit accompanying the IA., for amendment, the
petitioner pleaded that the application schedule land in LGC (Acs. 56.20
guntas in S. Nos. 10/1 and 10/2- Old S. No. 11-Plot No. 104) situated
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at Habsiguda Village of Uppal Mandal in Ranga Reddy District

(hereafter, the schedule land) was originally maktha land of Jainuddin.
Hyderabad Government acquired the land for establishment of Osmania
University (OU). Nizam gave grant (inam) to Jainuddin. After death of
Jainuddin in 1346 Fasli, Nizam did not issue fresh grant But one
Habibuddin trespassed into the land. He sold the land and the
respondents are claiming the property through those sale deeds. The
trespasser was evicted under the Andhra Pradesh Land Encroachment
Act, 1905 (the LE Act) and the same was also notified. Habibuddin died
on 30.12.1967 and after his death his alienees have no right over the
property. To support this claim of the Government, an amendment was
sought to the effect that Jainuddin was makthedar; after his death
regrant was not made by the Ruler and consequently the property
reverted and vested in the Government. They contended that the
amendment does not in any manner change the cause of action or
nature of the LGC nor prejudices the respondents.
Page: 488
Case of the respondents

3. Dr. V. Rajeshwara Rao (respondent No. 26 herein) filed main
counter-affidavit revealing the case as summed up in the next
paragraph. Some of the respondents filed a common counter and the
remaining respondents adopted the same. The application for
amendment is not maintainable. The application schedule lands are not
maktha lands. These lands were not acquired for establishment of OU.
The allegation that Habibuddin nor his alienees have no right or claim is
denied. In 1956 OU-respondent No. 36 herein-filed OS No. 1 of 1956
for recovery of possession and the suit was dismissed. Appeal being
CCCA No. 61 of 1959 was preferred before this Court. It was also
dismissed. Thereafter the Government initiated the proceedings under
the LE Act. The same was challenged in writ proceedings. The High
Court allowed the same on 30.6.1977 taking the view that the
summary LE proceedings are not permissible. The Government filed
civil appeals in the Supreme Court By judgment dated 16.3.1982 in
Government of A.P. v. Tummala Krishnarao, (1982) 2 SCC 134 : AIR
1982 SC 1081, the Supreme Court dismissed the appeals. The
Government then filed OS No. 36 of 1982 on the file of the Court of the
Principal Subordinate Judge, Ranga Reddy for declaration and
possession of the application schedule properties. The suit was filed
alleging that the Government acquired the lands from late Jainuddin
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who was the pattadar of the lands and, therefore, the petitioner cannot
now be allowed to amend the pleadings belatedly taking contradictory
pleas. If the amendment is allowed after a period of 25 years, the
matter has to be reopened and the respondents have to file their
additional counters and documents, and lead evidence. This would
further delay the matter. The proposed amendment is barred by
limitation. The amendment sought is not additional plea as alleged and
will change the cause of action and nature of the suit
Impugned order of the Special Court
4. Whether the amendment sought for would change the nature or
cause of action of the LGC? Whether in spite of due diligence the
applicant could not raise the matter before commencement of the trial?
These two points were addressed by the Special Court Considering both
the points together, the impugned order holds mat the amendment
application shows lack of ‘due diligence’ on the part of the petitioner as
the plea is raised after twenty-five years after filing the suit, and two
years after dismissal of amendment application. On other aspect of
change of cause of action and nature of the case, as well, the
conclusion of the Special Court went against the petitioner. The
relevant observations are as follows:
The whole concise statement runs on the footing that the land
was acquired from late Zainuddin under the provisions of Hyderabad
Land Acquisition Act DC of 1309 Fasli. Whether the land possessed
by Zainuddin was maqta land or not, there is no specific pleading at
all except the suffix ‘maqtadar’ added to the name Zainuddin. The
wife of Zainuddin filed counter denying the alleged acquisition of the
land. So, the crux of the matter in LGC on the basis of rival pleadings
is whether the land was acquired from Zainuddin or not, and the
result would follow the finding therein. Adding the work “Maqtadar”
as a suffix to the name Zainuddin would not lead to the conclusion
that the subject land was a maqta land unless there is a specific
pleading. Pleading must be always specific. A cloudy pleading by
way of a remote lifeless indication cannot be said to be a specific
pleadings. Therefore, it must be held that there is no earlier pleading
stating that the land taken from Zainuddin was ‘maqta land’. That
way we are helpless in acceding to the contention of senior Counsel
Sri N. Subba
Page: 489
Reddy. The proposed amendment also contradicts the earlier stance of

applicant-State. In fact, several documents were got marked on behalf
of the State to show that the land was acquired by the Government
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from Zainuddin. If the subject land vested in Government after

abolition of Jagir/Inams, there was no need for the Government to
acquire land unless Jagirdar/Inamdar was granted patta…. Thus, if
proposed amendment is allowed, it would introduce a new case. The
character of the suit would change. It would negate the earlier pleading
and runs contrary to the original claim. As already held, due diligence is
lacking on the part of applicant-Government when the proposed
amendment changes the character and nature of the suit the general
rule mat all amendments that would decide the real question in
controversy cannot be invoked here.
Submissions
5. Sri N. Subba Reddy, the Counsel for the petitioner submits that
the amendment’ application is bona fide; it is necessary for proper
adjudication of all issues and to decide the real question in the
controversy; the amendment does not cause any prejudice to the
contesting respondents and that the prejudice, if any, can be
compensated in terms of money. It does not result in change of cause
of action and the refusal of amendment would lead to multiplicity of
proceedings.
6. Sri S. Bal Chand, the Counsel for respondent No. 36 herein
submits that the Special Court committed an error in reiying on Order
VI Rule 17 of CPC as amended by CPC (Amendment) Act, 2002 (2002
CPC Amendment) which as per Section 16(2) of the said Act is only
prospective with effect from 1.7.2002 and has no application to IA No.
256 of 2001 filed by the petitioner. Nextly he would contend that Exs.
B1 and B2 filed by the respondents and written statement filed by
Habibuddin in OS No. 1 of 1956 show that the schedule land is maktha
inam land granted to Jainuddin and, therefore, when the relief claimed
by the petitioner remains the same, an additional plea cannot be
denied to be inserted in the concise statement
7. Both the Counsel relied on the decisions in Akhil Ranjan Das
Gupta v. B.N. Biswas, AIR 1954 CWR 536, Rahamtulla v. Mastan Seth,
1956 ALT 806, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil,
AIR 1957 SC 363, an unreported judgment of this Court in V.V. Raman
v. Agro Industries Co-op. Estate, CCCA No. 43 of 1974, dated 2.8.1977,
State Bank of Hyderabad v. Town Municipal Council, (2007) 1 SCC 765,
Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571,
Revajeetu Builders & Developers v. Narayanaswamy & Sons, (2009) 10
SCC 84, Jaswant Kaur v. Subhash Paliwal, (2010) 2 SCC 124 and State
of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC
518.
8. Sri B.V. Subbaiah, Senior Counsel for respondents 44, 45, 52 and
53, Sri Venkata Raghuramulu for respondents 27, 73, 74, 74 and 76,
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and Sri T. Praveen Kumar for respondents 58 and 61 made the

following submissions. The entire structure of LGC would be changed if
the amendment is allowed; in the earlier suits filed by OU land was
held to be private land; in concise statement there was not even
material allegation mat the land was maktha land and, therefore, the
petitioner cannot be permitted to take inconsistent pleas; if the
amendment is allowed, it amounts to change of cause of action and
introducing new pleading which is contrary to earlier pleading including
the finding of facts in Tummala Krishna Rao's case (supra) and,
therefore, new pleadings cannot be introduced; and the amendment is
belated and, therefore, it would cause prejudice and cannot be
compensated in terms of money. Learned
Page: 490
Counsel for the respondents relied on Kanda v. Waghu, AIR 1950 PC

68, D.L.F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, (1969)
3 SCC 807 : AIR 1971 SC 2324, Modi Spinning and Weaving Mills Co.
Ltd. v. Lodha Ram and Co., (1976) 4 SCC 320 : AIR 1977 SC 680,
Tummala Krishna Rao, Sampath Kumar v. Ayyakannu, 2002 (6) ALD 63
(SC) : (2002) 7 SCC 559 : AIR 2002 SC 3369, Rajesh Kumar Aggarwal
v. K.K. Modi, 2006 (3) ALD 61 (SC) : (2006) 4 SCC 385 : AIR 2006 SC
1647, Revajeetu Builders & Developers's case (supra) and Hindustan
Construction Company Limited's case (supra).
Certiorari jurisdiction
9. The order of the Special Court refusing amendment is challenged
in the certiorari proceedings under Article 226 of the Constitution of
India. The arguments in the case spread over four days and the parties
argued the matter as an appeal. We cannot, however, be forgetful of
the limitations in the exercise of certiorari jurisdiction and scope of
interference with orders of the Special Court under Article 226.
Therefore the only point we need to advert to is whether the impugned
order of the Special Court refusing amendment suffers from grave error
apparent on the face of record warranting issue of certiorari.
10. The Court of judicial review would not ordinarily interfere with
the finding of facts however grave they may be. It is only concerned
with grave error of law which is apparent on the face of record. The
error of law may arise when a Tribunal wrongfully rejects admissible
evidence or considers inadmissible evidence. In Syed Yakoob v.
Radhakrishnan, AIR 1964 SC 477, it was held as follows:
There is, however, no doubt that the jurisdiction to issue a writ of
certiorari is a supervisory jurisdiction and the Court exercising it is
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not entitled to act as an appellate Court This limitation necessarily

means that findings of fact reached by the inferior Court or Tribunal
as a result of the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which is apparent on
the face of the record can be corrected by a writ, but not an error of
fact, however grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can be issued if it is
shown that in recording the said finding, the Tribunal had
erroneously refused to admit admissible and material evidence, or
had erroneously admitted inadmissible evidence which has
influenced the impugned finding,
(emphasis supplied)
11. In Jagdish Prasad v. Angoori Devi, (1984) 2 SCC 590 : AIR 1984
SC 1447, the law in Syed Yakoob's case (supra), was reiterated thus:
………. a writ of certiorari is issued for correcting the errors of
jurisdiction committed by the Courts or Tribunals in cases where
they exceed their jurisdiction or fail to exercise it or exercise it
illegally or improperly i.e. where an order is passed without hearing
the party sought to be affected by it or where the procedure adopted
is opposed to principles of natural justice. A caution was indicated by
saying that the jurisdiction to issue a writ of certiorari is a
supervisory one and in exercising it, the Court is not entitled to act
as a Court of appeal. That necessarily means that the findings of fact
arrived at by the inferior Court or Tribunal are binding. An error of
law apparent on the face of the record could be corrected by a writ of
certiorari, but not an error of fact, however grave it may appear to
be.
(emphasis supplied)
12. In C.I.T. v. Karam Chand Thapar & Brothers, (1989) 2 SCC 31 :
AIR 1989 SC 1045, the issue was whether the finding of fact of Income
Tax Appellate Tribunal can be interfered with in judicial review.
Answering the plea in negative, the Supreme Court observed:
Page: 491
It is well settled that the Tribunal is the final fact-finding body.

The questions whether a particular loss is a trading loss or a capital
loss and whether the loss is genuine or bogus are primarily questions
which have to be determined on the appreciation of facts. The
findings of the Tribunal on these questions are not liable to be
interfered with unless the Tribunal has taken into consideration any
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irrelevant material or has failed to take into consideration any

relevant material or the conclusion arrived at by the Tribunal is
perverse in the sense that no reasonable person on the basis of facts
before the Tribunal could have come to the conclusion to which the
Tribunal has come. It is equally settled that the decision of the
Tribunal has not to be scrutinised sentence by sentence merely to
find out whether all facts have been set out in detail by the Tribunal
or whether some incidental fact which appears on record has not
been noticed by the Tribunal in its judgment. If the Court, on a fair
reading of the judgment of the Tribunal, finds that it has taken into
account all relevant material and has not taken into account any
irrelevant material in basing its conclusions, the decision of the
Tribunal is not liable to be interfered with, unless, of course, the
conclusions arrived at by the Tribunal are perverse,
(emphasis supplied)
13. In H.P. Gandhi v. Gopi Nath, 1992 Supp (2) SCC 312, the
principle was again elucidated thus:
Judicial review, it is trite, is not directed against the decision but
is confined to the decision-making process. Judicial review cannot
extend to the examination of the correctness or reasonableness of a
decision as a matter of fact. The purpose of judicial review is to
ensure that the individual receives fair treatment and not to ensure
that the authority after according fair treatment reaches, on a matter
which it is authorised by law to decide, to a conclusion which is
correct in the eyes of the Court Judicial review is not an appeal from
a decision but a review of the manner in which the decision is made.
It will be erroneous to think that the Court sits in judgment not only
on the correctness of the decision-making process but also on the
correctness of the decision itself.”
14. In Surya Dev Rai v. Ram Chander Rai, 2003 (5) ALD 36 (SC) :
(2003) 6 SCC 675 : AIR 2003 SC 3044, the principles of in certiorari
proceedings were summed up as below:
(1) Certiorari, under Article 226 the Constitution, is issued for
correcting gross errors of jurisdiction, Le., when a subordinate
Court is found to have acted (i) without jurisdiction-by assuming
jurisdiction where there exists none, or (ii) in excess of its
jurisdiction-by overstepping or crossing the limits of jurisdiction,
or (iii) acting in flagrant disregard of law or the rules or procedure
or acting in violation of principles of natural justice where there is
no procedure specified, and thereby occasioning failure of justice.
(2) Be it a writ of certiorari or the exercise of supervisory jurisdiction,
none is available to correct mere errors of fact or of law unless the
following requirements are satisfied : (i) the error is manifest and
apparent on the face of the proceedings such as when it is based
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on clear ignorance or utter disregard of the provisions of law, and

(ii) a grave injustice or gross failure of justice has occasioned
thereby.
(3) A patent error is an error which is self-evident, Le., which can be
perceived or demonstrated without involving into any lengthy or
complicated argument or a long-drawn process of reasoning.
Where two inferences are reasonably possible and the subordinate
Court has chosen to take one view the error cannot be called gross
or patent
(4) The power to issue a writ of certiorari and the supervisory
jurisdiction are to be exercised sparingly and only in appropriate
cases where the judicial conscience of the High Court dictates it to
act lest a gross
Page: 492
failure of justice or grave injustice should occasion. Care, caution and

circumspection need to be exercised, when any of the above said two
jurisdictions is sought to be invoked during the pendency of any suit or
proceedings in a subordinate Court and the error though calling for
correction is yet capable of being corrected at the conclusion of the
proceedings in an appeal or revision preferred there against and
entertaining a petition invoking certiorari or supervisory jurisdiction of
High Court would obstruct the smooth flow and/or early disposal of the
suit or proceedings. The High Court may feel inclined to intervene
where the error is such, as, if not corrected at that very moment, may
become incapable of correction at a later stage and refusal to intervene
would result in travesty of justice or where such refusal itself would
result in prolonging of the lis.
(5) The High Court in exercise of certiorari or supervisory jurisdiction

will not covert itself into a Court of appeal and indulge in re-
appreciation or evaluation of evidence or correct errors in drawing
inferences or correct errors of mere formal or technical character.
15. From the above binding authorities, the law may be culled out as
follows:
(1) The High Court is not an appellate authority over the decision of
the special Tribunals. While exercising the power of judicial
review, the High Court cannot be oblivious to the conceptual
difference between appeal and review;
(2) The petition for a judicial review would lie only on grounds of
grave errors of law apparent on the face of the record and not on
the ground of error of fact, however grave it may appear to be;
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(3) When the Tribunal renders a decision after determining the facts,
no application for judicial review could be maintainable only on
the ground that it has committed an error of fact, however grave
it may appear, unless it is shown that such a finding is based on
no evidence and the error of fact itself can be regarded as error of
law in the sense that admissible evidence was rejected and
inadmissible evidence was relied on;
(4) The orders passed by the Tribunal by exercising discretion cannot
be interfered unless it is shown that exercise of discretion itself is
perverse or illegal in the sense that the Tribunal did not follow its
earlier decision or binding authority to finding of facts and law as
decided by the High Court or the Supreme Court, and
(5) When the Tribunal disposes of an application by applying the
binding precedents of the High Court as well as the Supreme
Court, it cannot be said it has committed any error of law
apparent on the face of the record; in such cases the limited
review before the High Court would be whether the binding
principle has been appropriately applied or not; or the Tribunal's
decision which is rendered in ignorance of the statutory law on
which case it must be held to suffer an error apparent on the face
of the record.
Judicial review in Land Grabhing cases
16. The scope of judicial review of the order passed by the Special
Court either in exercise of its original jurisdiction or appellate
jurisdiction has been considered by the Supreme Court in Konda
Lakshmana Bapuji v. Government of A.P., 2002 (3) ALD 56 (SC) :
(2002) 3 SCC 258 : AIR 2002 SC 1012. It was held that if the Special
Court has not excluded relevant material from the consideration and
not taken into consideration
Page: 493
irrelevant material, its order cannot be interfered with under Article 226
of the Constitution of India. In State of A.P. v. P.V. Hanumantha Rao,
2003 (7) Supreme 456, dealing with the judicial review of orders of
Special Court it was laid down as under:
True it is that remedy of writ petition available in the High Court

is not against the ‘decision’ of the subordinate Court, Tribunal or
authority but it is against the ‘decision making process’. In the
‘decision making process’, if the Court, Tribunal or authority deciding
the case, has ignored vital evidence and thereby arrived at erroneous
conclusion or has misconstrued the provisions of the relevant Act or
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misunderstood the scope of its jurisdiction the constitutional power

of the High Court under Articles 226 and 227 can be invoked to set
right such errors and prevent gross injustice to the party
complaining. …… This Court has recognised the right of the High
Court to interfere in orders of sub-ordinate Courts and Tribunals
where (1) there is an error manifest and apparent on the face of the
proceedings such as when it is based on clear misreading or utter
disregard of the provisions of law and (2) a grave injustice or gross
failure of justice has occasioned thereby.
No doubt, it was held that neither in exercise of power of writ
under Article 226 nor in supervisory jurisdiction under Article 227,
the High Court will convert itself into a Court of appeal and indulge
in re-appreciation or evaluation of evidence.
(emphasis supplied)
17. In A.P. Housing Board v. Md. Sadathulla, (2007) 6 SCC 566,
referring to Konda Lakshmana Bapuji's case (supra), the scope of
judicial review in respect of orders passed under the Act, it is observed
as under.
It was also held mat the jurisdiction of High Courts under Article
226 as also of this Court under Article 136 of the Constitution is
limited and findings of the fact arrived at by the Special Court
cannot be interfered with in exercise of constitutional jurisdiction.
The law laid down in Konda Lakshmana Bapuji's case (supra), was
reiterated and quoted with approval in State of A.P. v. P.V.
Hanumantha Rao (dead) through LRs., (2003) 10 SCC 121, by
observing that an order passed by the Special Court can be
interfered with by a High Court in exercise of power of judicial review
where (1) there is an error manifest and apparent on the face of the
proceedings such as when it is based on clear misreading or utter
disregard of the provisions of law, and (2) a grave injustice or gross
failure of justice has occasioned thereby. [See also Gouni Satya
Reddi v. Government of A.P., AIR 2004 SC 3661 : (2004) 7 SCC
398]
(emphasis supplied)
18. In K. Sharada Bai v. Shamshunnisa, (2008) 3 SCC 49 : AIR
2008 SC 1105, the Supreme Court indicated that when the order of the
Special Court is passed on appreciation of oral and documentary
evidence, the writ Court cannot interfere with the order. The relevant
observations are as below:
Inasmuch as the above conclusion is based on the appreciation of
oral and documentary evidence led by the applicant and the
respondents as well revenue records and the report of the
Commissioner, the said conclusion cannot be faulted with. The High
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Court, after analyzing all the materials and finding that the
petitioners before them who are appellants before us are land
grabbers and grabbed 12 ½ guntas of land, concurred with the
decision arrived at by the Special Court and dismissed their writ
petitions.
In the light of the abundant acceptable materials in the form of
oral and documentary evidence coupled with the report of the
Mandal Revenue Officer and of the Commissioner, we agree with the
conclusion arrived at by the Special Court and the High Court and
reject the claim of the appellants.
Page: 494
19. Therefore, though there is a tendency on the part of the lawyers

to argue writ petitions filed against the orders of Special Court as
appeals, we cannot treat them as appeals. The judicial review is
permissible to a limited extent when (i) the relevant material is
excluded and irrelevant material is considered, (ii) there is an error
manifest and apparent on the face of proceedings, and (iii) a grave
injustice or gross failure of justice is occasioned thereby.
Point for consideration
20. The well settled principles as summed up as above limit our
enquiry. The error apparent or manifest in the impugned order can only
attract certiorari to quash the order of the Special Court constituted to
exercise the supplemental common law jurisdiction hitherto vested in
the civil Courts. The three distinct aspects pressed by the Government
and OU can be considered under separate headings.
Effect of amended provision
21. Rule 17 of Order VI of CPC allows a party to the proceedings to
alter or amend his pleadings at any stage of the proceedings by
showing that such amendments are necessary for the purpose of
determining the real question in controversy between the parties. The
provision was amended by 1976 CPC amendment whereafter the
pleadings could be amended only in limited situations. By Section 16 of
1999 CPC Amendment Act, Rules 17 and 18 of Order VI were
completely omitted. Again by Section 7 of 2002 CPC Amendment Act,
these were introduced making it obligatory to obtain leave of the Court
to amend the pleadings after commencement of the trial by showing
that in spite of due diligence the party could not raise the matter before
the trial. For ready reference we extract Order VI Rule 17 of CPC as
existed in 1976, after 1999 CPC Amendment and 2002 CPC
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Amendment, in the table below.

Order VI Rule 17 Order VI Rule Order VI Rule 17 existed after
as existed after 17 as existed 2002 Amendment came into
1976 Amendment after 1999 force w.e.f. 1.7.20022
w.e.f. 1.2.1977 (no Amendment
changes were came into force
made) w.e.f. 1.7.20021
17. Amendment of Rules 17 and 18 17. Amendment of Pleadings-
Pleadings:—The shall be the Court may at any stage of
Court may, at any omitted. the proceedings allow either
stase of the party to alter or amend his
proceedings, allow pleadingsin such manner and
either party to alter on such terms as may be just,
or amend his and all such amendments
pleadings in such shall be made as may be
manner and on necessary for the purpose of
such terms, as may determining the real questions
be just, and all in controversy (N.B. Till
such amendments 1.2.2002 the between the
shall be made as parties:
may be necessary Rules 17 and 18 Provided that no application
for the purpose of as they existed for amendment shall be
determining the in CPC 1908 as allowed after the trial has
real questions in amended in commenced, unless the Court
controversy 1976 continued comes to the condusion that in
between the to be in force) spite of due diligence, the
parties. party could not have raised
the matter before the
commencement of trial.
1. Vide Government of India Notification SO 603E, dated 6.6.2002.
2. Vide Government of India Notification SO 604E, dated 6.6.2002.
Page: 495
22. The law with regard to amendment of pleadings is well settled.

It is axiomatic that a party to a suit can always seek amendment of
pleadings at any time during the trial or during its pendency before
appellate Court. It is also well settled that the Court should bestow
liberal approach in dealing with the amendment applications. The grant
of applications for amendment would, however, be subject to three
limitations, namely, (i) when the nature of the suit is changed by
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permitting amendment; (ii) when the amendment would result in

introducing new cause of action which tends to prejudice the other
party; and (iii) when allowing amendment application defeats the law
of limitation. In such situations, amendments cannot be allowed. The
accepted Rule had been that all amendments may be allowed which
satisfies two conditions (i) that they do not work injustice to other side,
and (ii) that they are necessary for the purpose of determining the real
question in the controversy. Amendment should be refused only where
the other party cannot be placed in the same position as if pleading had
been originally correct but the amendment would cause him injury
which could not be compensated in terms of money (Pirgonda
Hongonda Patil's case (supra)). But if any amendment amounts to
setting up of and alteration of real matter in controversy between the
parties, it cannot be allowed (Ma Shwe Mya v. Maung Mo Hnaung, AIR
(9) 1922 PC 249 and Kanda's case (supra)).
23. Order VI Rule 17 became a cause for delayed adjudication.
Considering the problem, Justice V.S. Malimath as well as Law
Commission of India in its 129th Report suggested among others
various measures, to curb the practice of filing applications for
amendments whenever the parties liked. Accepting the same, 1999
CPC Amendment was enacted and by Section 16(iii), Rules 17 and 18
of Order VI CPC were omitted. Even before it was brought into force by
the Central Government by issuing a notification under Section 1(2)
thereof, the Parliament again enacted 2002 CPC Amendment Act 1999
Amendment Act was challenged in Salem Advocate Bar Assn. (I) v.
Union of India, 2002 (6) ALD 34 (SC) : (2003) 1 SCC 49. A Division
Bench of the Supreme Court appointed an advisory committee under
the chairmanship of Justice M. Jagannadha Rao, retired Judge of the
Supreme Court inter alia “to ensure that amendments made become
effective and result in quicker dispensation of justice”.
24. The committee filed three-part report before the Supreme Court.
The Division Bench of the Supreme Court in Salem Advocate Bar Assn.-
(II) v. Union of India, 2005 (5) ALD 1 (SC) : (2005) 6 SCC 344,
considered the report and accepted various proposals made by the
committee and issued directions to the High Courts, Central
Government and State Governments to expeditiously take up follow-up
action in that regard. Interesting aspect of mis, is that there was no
serious objection either for dropping Rules 17 and 18 of Order VI CPC
by 1999 Amendment Act or again reintroducing the same by 2002
Amendment Act.
25. The Supreme Court dealt with Order VI Rule 17 as restored by
2002 Amendment and observed that, “to some extent the proviso to
Rule 17 of Order VI curtails absolute discretion to allow amendment at
any stage… but if the application is filed after commencement of trial it
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has to be shown that in spite of due diligence, such amendment could

not have been sought earlier, and that the object is to prevent frivolous
applications which are filed to delay the trial. There is no illegality in
the provision”. Thus a distinction between the applications for
amendment filed before commencement of trial and those filed after
commencement of trial is highlighted and the curtailment of Court's
discretion by the amendment is approved.
Page: 496
26. Section 16 of 1999 Amendment Act omitted Rules 17 and 18 of

Order VI of CPC. This came into effect on 6.6.2002. By Section 7 of
2002 Amendment Act Rules 17 and 18 were inserted permitting the
amendments before commencement of trial and if a party proves that
in spite of due diligence, he/she could not raise before commencement
of trial, discretion was given to the Court to allow amendments sought
after commencement of trial. Section 16 of 2002 Amendment Act
repealed the amendments made by the State Legislature or High Court
before that Act but by clause (b) of sub-section (2) saved, Rules 17
and 18 of Order VI in their application in respect of pleadings filed
before the commencement of Section 16 of 1999 Amendment Act So to
say, the amendments sought prior to 6.6.2002 can be construed by the
Court without applying the proviso to Rule 17 of Order VI. What is the
effect of this on the consideration of applications for amendment filed in
the suits and other proceedings initiated before 6.6.2002.
27. In Town Municipal Council's case (surpa), the Supreme Court
considered Section 16(2)(b) of 2002 Amendment Act and held that,
“there cannot be any doubt whatsoever that the suit having been filed
in the year 1998, proviso to Order VI Rule 17 of CPC shall not apply”.
In Sumesh Singh v. Phoolan Devi, (2009) 3 SCC 511, the same view
was reiterated holding that the amendments carried out to CPC shall
only apply in respect of suits filed after coming into force of the
amending Acts. In view of this, the observations by the Special Court
that the petitioner failed to exhibit due diligence in seeking amendment
in time, are not called for because the Special Court did not reject the
applications for amendment on that ground alone. The factum of
dismissal of similar application being IA No. 242 of 2006 two years
before the present application also weighed with the Special Court
Indeed, applying the well settled principles which were interpretatively
read into Order VI Rule 17 as it existed prior to 1999 and 2002
Amendment Acts were considered and the amendment was rejected.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Therefore, we do not feel persuaded by the argument of Sri K. Bal

Chand that the impugned order suffers from error only on that ground.
The impugned order, we may, reiterate is based on different grounds
and merely because the Special Court made certain observations in this
regard, the petitioner cannot succeed in this writ petition.
Contradictions in the pleadings and introducing a new case
28. It is convenient to deal with these two aspects together. The
case of the petitioner before the Special Court is that the petition
schedule land forming part of Acs. 301.00 in Old Survey Nos. 1 to 10,
16 to 27 (New Survey Nos. 93/2 to 9, 40/1 to 5 and 43 to 52) was
acquired by the Nizam Government from previous owners Jainuddin,
Nawab Jung Bahadur and Babar Mirza for OU. The University could not
be established. The Government wanted the owners to refund the
compensation. As they could not do so, the proposals to give part of the
land were accepted and subsequently, the Collector again fixed
compensation. The land of Jainuddin was also acquired in the process,
but it was encroached by the respondents' predecessors in title.
Thereafter, as seen from the concise statement, there have been three
rounds of litigation either between the State Government and/or OU on
one hand, and the private parties who claimed to have purchased the
land on the other hand. In the first round of litigation, a suit being OS
No. 1 of 1956 was filed on the file of the Court of the District and
Sessions Judge, Hyderabad District by OU for possession. It was
dismissed and the appeal before the City Civil Court appeal being CCCA
No. 61 of 1959 was also dismissed by this Court on 24.1.1964.
Page: 497
29. In the second round of litigation, at the instance of OU, State

Government initiated steps to recover possession under the LE Act
Possession was also allegedly taken and notification was issued to that
effect on 3.6.1967. Ultimately the case ended in Supreme Court. In
Tummala Krishnarao's case (supra), the Supreme Court did not approve
the proceedings under the Land Acquisition Act, 1894 and gave liberty
to the State Government to file a suit for declaration of title.
30. In the third round of litigation, the suit filed OS No. 36 of 1986
on the file of the Court of the Principal Subordinate Judge, Ranga Reddy
District for declaration of title and recovery of possession. In 2003, the
same stood transferred to Special Court as LGC No. 40 of 2003 (present
proceedings). The case of the Government all along in these matters
has been summarised by the Supreme Court in Tummala Krishnarao's
-----------------------------------------------------------------------------------------------------------------------------------------------------------
case (supra), as follows:

We are concerned in these appeals with three groups of lands
situated in Habsiguda, Hyderabad East Taluk, Andhra Pradesh. Those
lands are : RS. No. 10/1, which corresponds to Plot No. 94
admeasuring 10 acres and 2 guntas; RS. No. 10/2 which
corresponds to Plot No. 104 admeasuring 9 acres and 33 guntas;
and RS. Nos. 7, 8 and 9 which correspond to Plot No. 111
admeasuring 26 acres and 14 guntas. These lands belonged
originally to Nawab Zainuddin and after his death, they devolved on
Nawab Habibuddin. Sometime between the years 1932 and 1937,
certain lands were acquired by the Government of the Nizam of
Hyderabad under the Hyderabad Land Acquisition Act of 1309 Fasli,
the provisions of which are in material respects similar to those of
the Land Acquisition Act, 1894. The lands were acquired for the
benefit of the Osmania University which was then administered as a
Department of the Government of Hyderabad. The University
acquired an independent legal status of its own under the Osmania
University Revised Charter, 1947, which was promulgated by the
Nizam.
The question whether the aforesaid three plots of land were
included in the acquisition notified by the Government of Nizam
became a bone of contention between the parties, the Osmania
University contending that they were so included and that they were
acquired for its benefit and the owner, Nawab Habibuddin,
contending that the three plots were not acquired. On February 13,
1956 the Osmania University filed a suit (OS No. 1 of 1956) against
Nawab Habibuddin, in the City Civil Court, Hyderabad, claiming that
the three lands were acquired by the Government for its benefit and
asking for his eviction from those lands. That suit was dismissed in
1959 on the ground that Plot No. 111 was not acquired by the
Government and that though Plots Nos. 94 and 104 were acquired,
the University failed to prove its possession thereof within 12 years
before the filing of the suit. In regard to Plots Nos. 94 and 104, it
was found by the trial Court that Habibuddin had encroached
thereupon in the year 1942, which was more than 12 years before
the filing of the suit Civil Appeal No. 61 of 1959 filed by the
University against that judgment was dismissed on January 24, 1964
by the High Court which affirmed the findings of the trial Court. The
State Government was not impleaded as a party to those
proceedings.
On May 8, 1964 the Osmania University wrote a letter to the
Government of Andhra Pradesh, requesting it to take steps for the
summary eviction of persons who were allegedly in unauthorised
occupation of the three plots. On December 8, 1964, the Tahsildar,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Government of Andhra Pradesh, acting under Section 7 of the Land

Encroachment Act 1905, issued a notice to Nawab Habibuddin to
vacate the lands and on December 15, 1964 the Tahsildar passed an
order evicting him from the lands. The appeal filed by Habibuddin to
the Collector was dismissed in 1965 and the appeal against the
decision of the Collector was
Page: 498
dismissed by the Revenue Board in 1968. During the pendency of the

appeal before the Revenue Board, the respondents purchased the plots
from Habibuddin for valuable consideration and on the death of
Habibuddin, they were impleaded to the proceedings before the
Revenue Board. They preferred an appeal from the decision of the
Revenue Board to the Government but that appeal was dismissed on
November 26, 1973.
31. The conspectus of facts in the instant case justifies the view that
the question as to the title to the three plots cannot appropriately be
decided in a summary enquiry contemplated by Sections 6 and 7 of the
Act. The long possession of the respondents and their predecessors-in-
title of these plots raises a genuine dispute between them and the
Government on the question of title, remembering especially that the
property, admittedly, belonged originally to the family of Nawab
Habibuddin from whom the respondents claim to have purchased it.
The question as to whether the title to the property came to be vested
in the Government as a result of acquisition and the further question
whether the Nawab encroached upon that property thereafter and
perfected his title by adverse possession must be decided in a properly
constituted suit Maybe, that the Government may succeed in
establishing its title to the property but, until that is done, the
respondents cannot be evicted summarily.
32. By seeking an amendment in 2011 in suit (now LGC) which is
pending since 1986, the Government wants to plead that Jainuddin was
granted Maktha (inam patta); after his death there was no re-grant and
therefore, the land stood reverted to the State (Nizam) because the
makthadar can only enjoy the property during his lifetime. This would
certainly change the nature of title set up by the Government When in
the second round of litigation, the matters reached the apex Court and
the Government only projected their case based on land acquisition
proceedings, the Special Court was correct in rejecting the amendment
holding that it would not only contradict Government's earlier case but
also results in introducing a totally different case. Such an amendment
-----------------------------------------------------------------------------------------------------------------------------------------------------------
would certainly cause grave prejudice to the contesting respondents.

33. In Rajesh Kumar Aggarwal's case (supra), the Supreme Court
noticed that Order VI Rule 17 of CPC consists of two parts. The first
part is discretionary leaving it to the Court to order amendment of
pleadings whereas the second part is imperative and enjoins the Court
to allow all amendments which are necessary for the purpose of
determining the real question in controversy between the parties.
Therein the Supreme Court also pointed out that where the subsequent
events sought to be introduced in the pleadings by way of amendment
shorten litigation besides preserving and safeguarding the rights of
both the parties, the Court ought to allow the amendment as a rule of
justice, equity and good conscience. But if any amendment results in
changing the basic structure of the suit, the amendment may be
refused (see Paragraphs 16, 17 and 18 of SCC).
34. In Revajeetu Builders's case (supra), the Supreme Court
referring to the leading English case Cropper v. Smith, (1884) 26 Ch D
700 (CA), and other leading decisions on the subject, reiterated that
whether amendment is necessary to decide real controversy; whether
any prejudice or injustice to other party is likely to cause; and whether
compensating the opposite party with costs would mitigate the
hardship, are the questions which need to be considered by the Court
while ordering amendment. The principles relevant for the purpose
were indicated as follows:
(1) whether the amendment sought is imperative for proper and
effective adjudication of the case;
Page: 499
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other
side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to
multiple litigation;
(5) whether the proposed amendment constitutionally or
fundamentally changes the nature and character of the case; and
(6) as a general rule, the Court should decline amendments if a fresh
suit on the amended claims would be barred by limitation on the
date of application.
These are some of the important factors which may be kept in
mind while dealing with application filed under Order 6 Rule 17.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
These are only illustrative and not exhaustive.

The decision on an application made under Order 6 Rule 17 is a
very serious judicial exercise and the said exercise should never be
undertaken in a casual manner. We can conclude our discussion by
observing that while deciding applications for amendments the
Courts must not refuse bona fide, legitimate, honest and necessary
amendments and should never permit mala fide, worthless and/or
dishonest amendments.
35. Thus if the amendment changes basic structure of the suit or
amendment brings out fundamental changes in the nature and
character of the suit, the Court cannot permit amendment (Rajesh
Kumar Aggarwal's case (supra) and Revajeetu Builders's case (supra)).
Even compensating opposite party with costs would not mitigate
because prejudice caused by the fundamental changes brought out in
the suit would defeat the justice. In this case as we have pointed out
above in the very first stage of litigation as well as the second stage of
litigation all along, the case of the Government has been that the land
was acquired for OU and the respondents purchased the land from a
land grabber who had no right to sell the property. Now altogether a
different case is sought to be set up, which cannot be permitted in a
case which is five decades old. Counsel for Government and the
Counsel for OU placed reliance on various documents which appears to
have already marked in the trial before the Special Court to contend
that in view of the evidence to show that Jainuddin was Makthadar
having got the grant from the Nizam, nobody could have claimed the
grant after his death and therefore, no prejudice would be caused by
bringing in amendment by the Government We are afraid such a
submission cannot be accepted. Any amendment which removes the
level playing field between the parties cannot be allowed by a Court.
Indeed, the Government never projected such a case anywhere in the
long drawn battle. Further as pointed out in Tummala Krishnarao's case
(supra), the question as to title to three plots has to be decided by the
civil Court with reference to the acquisition proceedings. This cannot be
ignored nor a party to the same decision of the Supreme Court can be
allowed to project altogether a different case. It is well settled that no
amount of evidence can be looked into without therebeing a proper
pleading. Even if the documents to which this Court's attention has
been invited are construed as suggested by the Counsel, in the absence
of any pleading, much help cannot be derived from those documents.
We, however, hasten to add that we are only making these
observations with reference to the amendment application and must
not be understood to have expressed
Page: 500
-----------------------------------------------------------------------------------------------------------------------------------------------------------
any opinion on the contents of the documents, some of which are

marked by the respondent themselves.
36. In the result, for the above reasons, we do not find any grave
error apparent on the face of record in the impugned order passed by
the Special Court There is no necessity to interfere with such well
considered order. The writ petition as also the miscellaneous petitions
shall stand dismissed. Consequently, the vacate petitions shall stand
disposed of accordingly. There shall be no order as to costs.
———
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SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Thursday, July 04, 2024

In the High Court of Andhra Pradesh at Hyderabad

State of Andhra Pradesh

The Judgment of the Court was delivered by

at Habsiguda Village of Uppal Mandal in Ranga Reddy District

Case of the respondents

Reddy. The proposed amendment also contradicts the earlier stance of

from Zainuddin. If the subject land vested in Government after

and Sri T. Praveen Kumar for respondents 58 and 61 made the

Counsel for the respondents relied on Kanda v. Waghu, AIR 1950 PC

not entitled to act as an appellate Court This limitation necessarily

It is well settled that the Tribunal is the final fact-finding body.

irrelevant material or has failed to take into consideration any

on clear ignorance or utter disregard of the provisions of law, and

failure of justice or grave injustice should occasion. Care, caution and

(5) The High Court in exercise of certiorari or supervisory jurisdiction

True it is that remedy of writ petition available in the High Court

misunderstood the scope of its jurisdiction the constitutional power

19. Therefore, though there is a tendency on the part of the lawyers

Amendment, in the table below.

22. The law with regard to amendment of pleadings is well settled.

permitting amendment; (ii) when the amendment would result in

has to be shown that in spite of due diligence, such amendment could

26. Section 16 of 1999 Amendment Act omitted Rules 17 and 18 of

Therefore, we do not feel persuaded by the argument of Sri K. Bal

29. In the second round of litigation, at the instance of OU, State

case (supra), as follows:

Government of Andhra Pradesh, acting under Section 7 of the Land

dismissed by the Revenue Board in 1968. During the pendency of the

would certainly cause grave prejudice to the contesting respondents.

These are only illustrative and not exhaustive.

any opinion on the contents of the documents, some of which are

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