Syed Mohammed Quadri (Died) By His ... vs Darga Committee Of Hazrath Syed ...

on 2 August, 2006

Andhra High Court Andhra High Court Syed Mohammed Quadri (Died) By His ... vs Darga Committee Of Hazrath Syed ... on 2 August, 2006 Equivalent citations: 2007 (1) ALD 201, 2006 (6) ALT 174 Author: G B Prasad Bench: G B Prasad ORDER G. Bhavani Prasad, J. 1. Aggrieved by the dismissal of I.A. No. 1459 of 2005 in O.S. No. 40 of 2002 by the Principal Junior Civil Judge, Adoni, by the order dated 19-12-2005, the unsuccessful legal representatives of the deceased first plaintiff, who were already impleaded as plaintiffs 2 to 7 filed the present Civil Revision Petition. 2. The facts leading to this revision are that the deceased first plaintiff Syed Mohamed Quadri filed O.S. No. 40 of 2002 against the Darga Committee of Hazrath Syed Shah Taher Qadri Saheb claiming a declaration that he is hereditary Sajjadanashin and he is the successor of Sajjadanashin of the plaint schedule Darga and for consequential permanent injunction restraining them from interfering with the management and affairs of the plaint schedule Darga Committee. During pendency of the suit, Syed Mohamed Quadri died and plaintiffs 2 to 7 were brought on record as his legal representatives. The legal representatives did not make any request for any consequential amendments in the plaint, along with their request to be brought on record and came up with this application subsequently, to make additions to paras-3 and 15 of the plaint and in para-3 they wanted to add that they came on record as legal representatives of the deceased first plaintiff and that during his life time, the deceased first plaintiff nominated and declared the 5th plaintiff as his successor on 9-6-2003 in the presence of not only plaintiffs 2 to 7 but also religious persons, followers, disciples. The 5th plaintiff was, therefore, sought to be projected as successor of the deceased first plaintiff. A consequential amendment for declaration was also sought to be made in para-15. Plaintiffs 2 to 7 claimed that the omission to make a consequential amendment came to light when they were preparing for examination in chief of the 5th plaintiff. The request made by plaintiffs 2 to 7 for the proposed amendment was contested by the respondents on the ground that new allegations of fact are sought to be introduced varying the cause of action, filling up lacunae in the case of the plaintiffs and to get over the bar of limitation. 3. The trial Court, in the impugned order, observed that the facts sought to be introduced by the proposed amendment were available to plaintiffs at the time of filing original plaint by the deceased first plaintiff on 30-10-2001. The amendment sought for through this petition filed on 9-11 -2005 is an afterthought introducing a new plea, which is hopelessly barred by limitation. Considering that the plea was not taken in spite of its availability in the original plaint and that it will take away the right accrued to the defendants due to bar of limitation, the trial Court dismissed the petition. 4. Aggrieved by the said order, plaintiffs 2 to 7 came up with this revision petition contending that the filing of suit in 2002 and the declaration of 5th plaint as Sajjadanashin on 14-6-2003 were not appreciated by the trial Court. The newly added plaintiffs cannot claim any relief in the suit without effecting the proposed amendment, which does not in any way cause prejudice to the defendants. The liberal approach to be adopted by the Court in such cases is well settled, more so, to avoid multiplicity of proceedings, and hence, they sought for setting aside the order in question. 5. Sri Nazir Ahmad Khan, learned Counsel for the revision petitioners has contended that the truth and merits of the contents of the proposed amendment could not have been gone into by the trial Court at this stage and stating that the facts sought to be introduced were available to the newly added plaintiffs at the time of filing of the suit on 30-10-2001 is preposterous, when the contents of the proposed amendment relate to an event on 9-6-2003 and the death of first plaintiff on 14-6-2003 necessitating the newly added plaintiffs to seek a relief in favour of 5th plaintiff.
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Syed Mohammed Quadri (Died) By His ... vs Darga Committee Of Hazrath Syed ... on 2 August, 2006

6. Sri R.V. Subba rao, learned Counsel for the respondents has brought to the notice of this Court that even the claim of the deceased first plaintiff was barred by resjudicata by virtue of judgment and decree in O.S. No. 192 of 1999 referred to in para-17 of the plaint itself. The right claimed in the suit by first plaintiff was purely personal in nature and does not survive on his death to enable any of his legal representatives to continue the suit. The bringing of legal representatives of the deceased first plaintiff on record as plaintiffs 2 to 7 itself was an error and such an error cannot be further perpetuated by allowing uncalled for amendments to be made in the plaint changing the cause of action for the suit and permitting prayers which are barred by limitation affecting the rights that accrued to defendants by passage of time. The learned Counsel further contended that the proposed amendments cannot be allowed and if the Court disagrees with him, at least the right of defendants to raise the questions of non-survival of the cause of action on the death of first plaintiff and the bar of limitation in the suit should be left intact. 7. The point that arises for consideration is whether the impugned order suffers from any material irregularity? 8. It is not in dispute that plaintiffs 2 to 7 were brought on record as legal representatives of the deceased first plaintiff and it is not known from the material on record in this revision petition whether the question that the cause of action for the suit did not survive on the death of first plaintiff was raised or considered or decided in that context. However, the order allowing plaintiffs 2 to 7 to be impleaded in the suit has, admittedly, become final by lapse of time and remained unchallenged. When once they are pursuing the suit as plaintiffs, permitting them to seek appropriate relief in their favour should be a natural consequences. What they seek to introduce by way of proposed amendment is an event of nomination of 5th plaintiff as successor of the deceased first plaintiff on 9-6-2003 with reference to the death of first plaintiff on 14-6-2003 and a consequential relief in favour of 5th plaintiff to act as successor of first plaintiff. The truth and binding nature or otherwise of the alleged nomination of 5th plaintiff by the first plaintiff are not matters to be gone into at the stage of considering the amendment and the observation of the trial Court that these facts were available at the time of filing of original plaint on 30-10-2001 appears to be a physical impossibility in respect of the events dated 9-6-2003 and 14-6-2003. It is true that there was delay between plaintiffs 2 to 7 being brought on record and the amendment being sought for, which plaintiffs 2 to 7 tried to explain as due to inadvertence noted only at the time of preparation for trial. Though the amendment introduces a new cause of action in favour of 5th plaintiff, mere introduction of new cause of action itself is not barred by law, which becomes necessitated by subsequent events. The subsequent event of the death of first plaintiff necessitated the introduction of plaintiffs 2 to 7 in the suit and the consequential amendment in the plaint can not be considered to be alien to the original contents of the plaint. While the questions of right of plaintiffs 2 to 7 to continue the suit and the bar of limitation could have been allowed to be gone into during trial of the suit, the trial Court should have allowed plaintiffs 2 to 7 to effect the amendment of plaint in the interests of justice. The reasons assigned by it for declining the same do not appear to be sustainable. Consequently, the order under revision has to be interfered with. 9. In the result, the order dated 19-12-2005 of the Principal Junior Civil Judge, Adoni in I.A. No. 1459 of 2005 in O.S. No. 40 of 2002 is set aside and I.A. No. 1459 of 2005 in O.S. No. 40 of 2002 is allowed without costs, while making it clear that it is open to defendants to plead and prove that plaintiffs 2 to 7 are not entitled to continue the suit after the death of the deceased first plaintiff and that the relief sought for by way of amendment herein is barred by limitation, which shall be determined by the trial Court on merits in accordance with law during trial of the suit. 10. The Civil Revision Petition is, accordingly, ordered without costs.

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