Madras High Court
K.Balamurugan ... Revision vs B.Jayachandran on 12 April, 2018
C.R.P. (PD) Nos.2784 and 2785 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30.11.2021
Delivered on : 22.03.2022
CORAM :
THE HONOURABLE MRS. JUSTICE S. KANNAMMAL
C.R.P. (PD) Nos.2784 and 2785 of 2018
K.Balamurugan ... Revision Petitioner
in both petitions
Versus
1.B.Jayachandran
2.M/s.Aditya Birla Fashion and Retail Ltd.,
Represented by its Authorised Secretary Mr.Vivek,
No.2/120, Santhya House,
Aishwarya Mangala,
Puttur, Dakshin Kanada,
Karnataka State.
3.The Chennai Metropolitan Development Authority,
Represented by its Member Secretary,
Having its office at
Thalamuthu Natarajan Maaligai,
Gandhi Irwin Road .. Respondents in
Chennai – 600 008. both petitions
Civil Revision Petitions filed under Article 227 of the Constitution of
India, against the fair and decreetal order dated 12.04.2018 passed in
I.A.Nos.1111 and 1112 of 2017 respectively in O.S.No.289 of 2017 on the file
of the Principal District Munsif, Poonamallee.
https://www.mhc.tn.gov.in/judis
Page 1 of 30
C.R.P. (PD) Nos.2784 and 2785 of 2018
For Petitioner : Mr. Ravikumar Paul
Senior Counsel
for M/s.Paul and Paul
in both petitions
For Respondents : Mr.R.Thiagarajan
for Mr.R.Kandasamy
COMMON ORDER
These Civil Revision Petitions have been filed against the common order, dated 12.04.2018 made in I.A.Nos.1111 and 1112 of 2017 in O.S.No.289 of 2017 on the file of Principal District Munsif, Poonamallee, dismissing the petitions filed by the plaintiffs to amend the plaint and to implead the 3rd respondent herein as defendant in O.S.No.289 of 2017.
2. For the sake of convenience, the petitioner shall hereinafter be referred to as “plaintiff” and the 1st respondent shall be referred to as “defendant”.
3. It is seen from records that, earlier, these Civil Revision Petitions were allowed by this Court, by order dated 06.07.2021. Thereafter, the defendant filed C.M.P.Nos.14071 and 14073 of 2021 to set aside the order, dated 06.07.2021, and restore the Civil Revision Petitions, on the ground that https://www.mhc.tn.gov.in/judis Page 2 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 the learned counsel for the defendant was unable to appear before this Court due to Lukoplakia infection. The said petitions were allowed on 24.09.2021. Accordingly, these Civil Revision Petitions were restored on file and now, they are taken up for disposal.
4. The plaintiff has laid the suit in O.S.No.289 of 2017 for a bare injunction. The case of the plaintiff is that he purchased the suit property by way of sale deed, dated 27.03.2012, from the Power Agent of one Lakshmi Narayana Chettiyar. According to him, from the date of such purchase, he is in possession and enjoyment of the suit property. It is his specific plea in the original plaint that the suit property is a vacant land and there is no superstructure existing thereon. It is the further case of the plaintiff that the 1 st defendant is the adjacent plot owner and the 2 nd defendant is a lessee of the 1 st defendant and the 2nd defendant, while putting up construction, has encroached the plaintiff's property. It is further averred in the plaint that since the plaintiff is permanently residing at Madurai and when he came to Chennai, he comes to know about the attempt of encroachment on the part of the defendants. Therefore, he has filed the suit for bare injunction to restrain the defendants from interfering or trespassing into the suit property, which is in his possession.
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5. The first defendant filed his written statement, wherein, it is stated that the sale deed in favour of the plaintiff is forged and the first defendant is the owner of various plots, including the suit property. It is further stated that in order to obtain planning permission for putting up a multi-storied building in his property, the first defendant approached the Chennai Metropolitan Development Authority (CMDA). As a precondition for approval of building planning permission, the first defendant executed a Gift Deed, dated 07.08.2013, in favour of Chennai Metropolitan Development Authority (CMDA). Pursuant to the planning permission obtained from CMDA, the 1st defendant had put up a multi-storied building, which was leased out to the 2 nd defendant. It is further averred by the first defendant that the trial Court granted an order of ex parte ad-interim injunction and the first defendant preferred a revision before this Court in C.R.P.(PD).No.3263 of 2017 in which an order of status quo was issued with a direction to dispose of the interim injunction application within a week. Thereafter, the interim injunction application was dismissed by the trial Court, after contest, on merits, and the ad-interim injunction already granted was vacated on 15.09.2017 on the ground that the predecessors, from whom the plaintiff claims his title, have lost their plea in earlier round of litigations and the plaintiff has completely suppressed those facts in the plaint.
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6. After filing of the written statement, the plaintiff took out two applications in I.A.Nos.1111 and 1112 of 2017. I.A.No.1111 of 2017 was filed by the plaintiff for amendment of plaint under Order VI Rule 17 C.P.C., in which, the plaintiff has sought for addition of certain facts arising out of the contents of the written statement and ultimately, to amend the relief sought for in the suit. Thus, the plaintiff sought for amendment to substitute the prayer of bare injunction with the prayers to declare his right and title over the suit property; for declaration/cancellation to cancel the Gift Deed executed by the first defendant in favour of CMDA on 07.08.2013; for recovery of Rs.10,00,000/- towards damages for demolition of structures put up by the plaintiff in the suit property; and for future damages @ Rs.5,000/- per month. The other application in I.A.No.1112 of 2017 was filed by the plaintiff to implead the CMDA as one of the defendants in the suit for proper and effective adjudication of the suit.
7. Both the applications were opposed by the first defendant by filing counter affidavit inter alia contending that the amendment sought for by the plaintiff has substantially altered the nature and character of the lis originally framed by the plaintiff. The amendment sought for by the plaintiff would entirely vary and alter the scope of the proceedings. The first defendant has https://www.mhc.tn.gov.in/judis Page 5 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 further stated that the plaintiff has filed the suit for bare injunction by referring the suit property as a vacant land. When it was brought to the notice of this Court by the first defendant by way of written statement that there exists a multi-storied building and the plaintiff's averment that the suit property is a vacant land is false, the plaintiff has come forward with the present application for amendment. Further, the first defendant averred that the relief sought for by the plaintiff in I.A.No.1112 of 2017 to implead CMDA is not maintainable. The first defendant has further averred that the Gift Deed executed by the first defendant in favour of CMDA has been acted upon and a multi-storied building has been constructed by the first defendant, in which, the 2nd defendant was put in possession as a lessee. Therefore, the first defendant sought for dismissal of both the applications.
8. The trial Court had taken up both the applications for hearing together. After considering the rival submissions, by a common order, dated 12.04.2018, the trial Court dismissed both the applications, against which the plaintiff has filed the present Civil Revision Petitions.
9. The learned Senior counsel appearing for the plaintiff/revision petitioner would vehemently contend that the trial Court ought not to have https://www.mhc.tn.gov.in/judis Page 6 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 dismissed the applications to amend the plaint to incorporate the details of flow of title of his predecessor, as well as the subsequent events which came to light after filing of the written statement by the first defendant. He further submitted that the trial Court ought to have permitted the plaintiff to amend the plaint, however, even before conducting trial in the suit, the trial Court erroneously concluded that the plaintiff is not entitled for damages from the defendant. The learned counsel submitted that the plaintiff is entitled to claim the reliefs, which are warranted due to the subsequent development after the filing of the suit. The trial Court itself has observed that the plaintiff could file a new suit for the reliefs prayed for. When such is the case, the same could be decided in the present suit in order to avoid multiplicity of proceedings.
10. The learned Senior counsel for the plaintiff further submitted that, amendments are to be granted liberally by the Court before the stage of trial. Admittedly, the case is in pre-trial stage. Therefore, as to whether the plaintiff is entitled for the reliefs prayed for in the application for amendment can very well be decided in the course of trial. However, even before framing the issues in the suit, the trial Court has erroneously dismissed the applications filed by the plaintiff. The learned counsel further submitted that, even assuming without admitting that the amendment of the pleadings would introduce a new https://www.mhc.tn.gov.in/judis Page 7 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 cause of action or an inconsistent plea, the trial Court ought to have allowed the applications and tested the veracity of the pleadings of the plaintiff at the time of trial by affording an opportunity to the defendants to file an additional written statement. Therefore, the learned Senior counsel prayed for allowing both the Civil Revision Petitions by setting aside the orders of the trial Court. In the course of his arguments, the learned Senior counsel relied on the following judgments :
i. Lakha Ram Sharma v. Balar Marketing Private Limited [(2008) 17 SCC 671] ii. Rajesh Kumar Aggarwal & others v. K.K. Modi and others [CDJ 2006 SC 249] iii. Sampath Kumar v. Ayyakannu and others [CDJ 2002 SC 547] iv. Mount Mary Enterprises v. Jivratna Medi Treat Private Limited [(2015) 4 SCC 182] v. Church of South India Trust Association, Tiruchirapalli-
Thanjavur Diocesan Council v. Kovil Pillai and others [CDJ 2007 MHC 2900] vi. Sanjeevi Ammal and others v. Narasimha Naicker and another [CDJ 2000 MHC 760]
11. Per contra, the learned counsel for the first defendant/1st respondent would vehemently oppose the Civil Revision Petitions. According to the learned counsel for the first respondent/first defendant, the plaintiff failed https://www.mhc.tn.gov.in/judis Page 8 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 to satisfy the conditions prescribed under Order VI Rule 17 CPC and therefore, he is not entitled for amending the plaint. By reason of the proposed amendment, the plaintiff attempts to achieve what he could not achieve by filing the suit for bare injunction, by suppressing many material particulars. According to him, Order VI Rule 17 CPC confers jurisdiction on the trial Court to alter or amend the pleadings at any stage of the proceedings, however, it must be ensured that pre-trial amendments are not construed or allowed liberally that would derail the pleadings or alter substantially the material particulars pleaded in the plaint. Even though, in the suit, trial has not commenced, when the plaintiff filed the suit originally for bare injunction, after the written statement of the 1st defendant, he cannot be expected to substantially and completely alter the pleadings, when the falsity of the original pleadings made in the plaint have been exposed. The learned counsel also contended that the proposed amendment seeks to change the entire nature, character and complexion of the suit and also its cause of action, and hence, such amendment need not be permitted much to the chagrin of the first defendant. The learned counsel for the first respondent/first defendant further submitted that the plaintiff is not consistent in his stand with regard to possession and he seeks to take different pleas at different points of time. The trial Court has also made an observation to that effect in the order, which is https://www.mhc.tn.gov.in/judis Page 9 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 impugned in these Civil Revision Petitions and therefore, the amendment is just to drag on the proceedings and is not bona fide. In support of his contentions, the learned counsel has relied upon the following decisions :
i. Rajkumar Gurawara (Dead) thr. L.Rs. v. S.K.Sarwagi and Co.
Pvt. Ltd. and Others [2018 (14) SCC 364] ii. Ashutosh Chaturvedi v. Prano Devi and others [2008 (15) SCC 610] iii. Tamil Nadu Electricity Board v. The Tamil Nadu Alloy Foundry Co. Ltd. [2001 (4) CTC 174] iv. Chander Kanta Bansal v. Rajinder Singh Anand [2008 (5) SCC 117] v. Heeralal v. Kalyan Mal and others [(1998) 1 SCC 278] vi. Kedia Overseas Ltd. v. Satellite Town Development Pvt. Ltd.
[(2007) 6 MLJ 1703] vii.Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others [2013 (9) SCC 485]
12. As regards the proposed amendment to implead CMDA as party to the suit, the learned counsel for the first respondent/first defendant submit that, unless a person is legally interested in the lis or he is required to be impleaded to resolve the real controversies involved in the suit, his impleadment is not necessary. In the present case, the CMDA has accepted the Gift Deed executed by the first defendant on 17.08.2013, the Gift Deed was https://www.mhc.tn.gov.in/judis Page 10 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 already acted upon and a multi-storied construction has been put in place. While so, at this stage, there is nothing for the CMDA to be impleaded as a party respondent in the present suit. In this context, the learned counsel for the first respondent/first defendant relied on the decision of the Hon'ble Supreme Court in Kasturi v. Iyyamperumal and others [2005 (6) SCC 733], wherein, it was held that the test for impleading a party will be “(1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party.” In the present case, if CMDA is not impleaded, it will not in any manner affect the decree to be passed in the suit. The learned counsel also relied upon the following decisions :
i. Sunil Gupta v. Kiran Girhotra and others [2007 (8) SCC 506] ii. Gurmit Singh Bhatia v. Kiran Kant Robinson and others [2020 (13) SCC 773]
13. The learned counsel for the first respondent/first defendant concluded his arguments by submitting that the trial Court has rightly dismissed the impugned applications and therefore, prayed for dismissal of both the Civil Revision Petitions.
14. Heard the learned counsel on either side and perused the entire https://www.mhc.tn.gov.in/judis Page 11 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 materials available on record.
15. The plaintiff has filed the suit in the year 2017. On a reading of the plaint, it is seen that the plaintiff has sought for a relief of permanent injunction restraining the defendants from interfering or trespassing with the peaceful possession and enjoyment of the suit property, which he has claimed to be a vacant land. In other words, it is his pleading in the plaint that he is in possession and enjoyment of the suit property and that the defendants should be refrained from disturbing or interfering with his possession. Originally at the time of filing the suit, the plaintiff obtained an order of ad-interim injunction.
16. On notice, the first defendant filed his written statement along with supporting documents to show his title to the suit property and they have also constructed a multi-storied building in the property. Immediately thereafter, the plaintiff has come up with the applications for amendment of plaint incorporating abundant of facts purely derived from the facts narrated in the written statement of the first defendant and ultimately, he filed the application for amendment to substitute the earlier prayer for injunction with the prayers for (i) declaration of title (ii) cancellation of Gift Deed in favour of https://www.mhc.tn.gov.in/judis Page 12 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 CMDA (iii) for damages towards demolition of the structure put by the plaintiff (iv) for future damages and (v) to implead CMDA as a party defendant to the suit.
17. In the backdrop of the above facts, this Court now traverses through the decisions relied upon by the learned counsel on either side.
18. In Lakha Ram Sharma v. Balar Marketing Private Limited (supra), the Hon'ble Supreme Court has relied on the proposition that, while considering whether the amendment is to be granted or not, the Court does not go into the merits of the matter and decide whether or not the claim made thereon is bona fide or not, which has to be decided only in trial.
19. In Rajesh Kumar Aggarwal & others v. K.K. Modi and others (supra), the Hon'ble Supreme Court has held as follows :
“... In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the https://www.mhc.tn.gov.in/judis Page 13 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 pending suit. ...
The Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. ...
The Court always gives leave to amend the pleadings of a party unless it is satisfied that the party applying was acting mala fide. ...
This Court has consistently held that the amendment to pleading should be liberally allowed since procedural obstacles ought not to impede the dispensation of justice. ...
It is true that amendment cannot be claimed as a matter of right and under all circumstances. But is equally true that Courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. ...
When the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, Courts cannot allow such application for amendment https://www.mhc.tn.gov.in/judis Page 14 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 and that a pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment, a new cause and a new case cannot be substituted and the Courts cannot be asked to adjudicate the alternative case instead of original case. This judgment is distinguishable on facts.”
20. In Sampath Kumar v. Ayyakannu and others (supra), the Hon'ble Supreme Court has held as follows :
“6.It is true that the plaintiff on the averments made in the application for amendment proposes to introduce a cause of action which has arisen to the plaintiff during the pendency of the suit. According to the defendant the averments made in the application for amendment are factually incorrect and the defendant was not in possession of the property since before the institution of the suit itself.
7.In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We https://www.mhc.tn.gov.in/judis Page 15 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings.
8.In Mst. Rukhmabai v. Lala Laxminarayan and Ors., this Court has taken the view that where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so.
9.Order 6 Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just.
Such amendments as are directed towards putting-form and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case generally it can be assumed that the defendant is https://www.mhc.tn.gov.in/judis Page 16 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
10.An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed.
11.In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and https://www.mhc.tn.gov.in/judis Page 17 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.
12.On the averments made in the application, the same ought to have been allowed. If the facts alleged by plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/or the defendant succeeds in substantiating the plea which he would obviously be permitted to https://www.mhc.tn.gov.in/judis Page 18 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for commencement of the trial.
13.For the foregoing reasons, the appeal is allowed. The impugned orders of the High Court and the Trial Court are set aside. The plaintiff is permitted to incorporate the pleas sought to be raised by way of amendment in the original plaint foregoing the plea to the extent given up by him before the Trial Court. However, in view of the delay in making the application for amendment, it is directed that the plaintiff shall pay a cost of Rs.2,000.00 (Rupees Two Thousand only) as a condition precedent to incorporating the amendment in the plaint. The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed.”
21. In Church of South India Trust Association, Tiruchirapalli- Thanjavur Diocesan Council v. Kovil Pillai and others (supra), a learned Single Judge of this Court, after perusal of various judgments, has put forth the principles governing the application under Order VI Rule 17 CPC :
“1.Amendment to the pleadings cannot be turned down by courts merely on the score that they introduce an inconsistent plea or a new cause of action.
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2.The true test is whether the amendment is foreign to the subject matter of the suit and if not whether it would be in the interest of justice to grant it.
3.Amendment may be allowed irrespective of law of limitation, if the cause of action is not going to be changed and in the interest of justice.
4.Since the amendment of the plaint being the discretion of the court, it need not be refused on technical grounds.
5.Alternative relief sought by way of amendment can be allowed even if belated, but the other side should be compensated with costs.
6.Allowing of this Application is a rule and rejection is an exception.
7.Pre-trial amendment are to be allowed more liberally than those which are sought to be made after the commencement of trial or after the conclusion thereof.
8.If it is permissible for the plaintiff to file an independent suit, there is no difficulty in accepting his Application for amendment of plaint.”
22. In Sanjeevi Ammal and others v. Narasimha Naicker and another (supra), a learned Single Judge of this Court has held as follows :
“9.It is true that plaintiffs have filed the suit for declaration of title and for consequential injunction. He moved an application for injunction and the same was dismissed and later confirmed in appeal. When both the courts concurrently https://www.mhc.tn.gov.in/judis Page 20 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 held that plaintiffs have not proved their possession and defendant is shown to be in possession, naturally the relief sought for in the plaint has become in appropriate.
10.On going by the amendment application, I do not think that there is any change in the nature of the suit or in the cause of action.
11.In A.K.Gupta & Sons v. Damodar Valley Corporation, AIR 1967 SC 96, their Lordships held that cause of action for the purpose of suit and for the purpose of amendment are not the same. In para. 7 to 9 of the judgment their Lordships have held thus, “7. ..... The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred : Weldon v. Neale, 1887 (19) QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitations see: Charan Das v. Amir Khan [AIR 1921 PC 50] and L. J. Leach and Co Ltd v. Jardine Skinner and Co. [AIR 1957 SC 357].
9.The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill, 1873 (8) CP 107 (116), in a different context, for if it were so, no https://www.mhc.tn.gov.in/judis Page 21 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd., 1962 (2) All ER 24. and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas' " : Dornan v. J. W.Ellis and Co. Ltd., 1962 (l) All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.
...
12.Following the above decision and on going by the averments in the affidavit, I do not think that there is any change in the nature of suit and cause of action. One relief is sought to be substituted by another relief on the basis of same facts. ...
15.When orders are passed on the interlocutory application that defendants are in possession, to resolve the dispute between parties, relief of recovery is necessary. As was held in Natesan and another v. Govindasami and another, 1988 (2) LW 397, which was also a case where amendment was sought after trial court entered finding that defendant is in possession.
https://www.mhc.tn.gov.in/judis Page 22 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 In that case relief sought for was alternate relief. I do not think that makes any difference. In that case learned Judge held thus, ".... This prayer becomes important because of the fact that possession is claimed by the defendants did in case the trial court finds that they are in possession, then the plaintiffs will be without any effective remedy. It is only to avoid such a contingency and to avoid multiplicity of proceedings, the provisions in Order 6, Rule 7, C.P.C, are intended. ....."”
23. In Rajkumar Gurawara (Dead) thr. L.Rs. v. S.K.Sarwagi and Co. Pvt. Ltd. and others (supra), the Hon'ble Apex Court has held that, amendments are to be granted subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party, (iii) when allowing amendment application defeats the law of limitation. It has also been held on the facts of the case therein that, though the plaintiff therein was having the knowledge of the transaction, he did not claim the relief at the appropriate period of time.
24. In Ashutosh Chaturvedi v. Prano Devi and others (supra), the Hon'ble Apex Court has held that the only remedy which was available to the appellant therein might be to file a suit. But as the same relief being barred by limitation, it was opined that the Court would not exercise its discretionary https://www.mhc.tn.gov.in/judis Page 23 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 jurisdiction to allow the amendment of the plaint.
25. In Tamil Nadu Electricity Board v. The Tamil Nadu Alloy Foundry Co. Ltd. (supra), the Hon'ble Apex Court has held that the application for amendment seeking higher amount of damages should be made within the period of limitation and the Court has to dismiss the suit for application which is barred by limitation in the absence of special circumstances. It was also held that, when the cause of action is different from the relief claimed in the suit, amendment need not be granted.
26. In Chander Kanta Bansal v. Rajinder Singh Anand (supra), the Hon'ble Apex Court has held that no application for amendment shall be allowed after commencement of trial, provided it is established that, in spite of 'due diligence', the party could not have raised the matter before the commencement of trial. It was found on the facts of the case therein that the party failed to substantiate the inordinate delay in filing the application, that too, after closing of evidence and arguments.
27. In Heeralal v. Kalyan Mal and others (supra), it was held that, withdrawal of admission made in the written statement by defendant which https://www.mhc.tn.gov.in/judis Page 24 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 would displace the plaintiff's case and cause him irretrievable prejudice is not permissible; after issues are framed, withdrawal of the admission by amendment of written statement sought by defendant on unsustainable grounds cannot be allowed.
28. In Kedia Overseas Ltd. v. Satellite Tow Development Pvt. Ltd. (supra), a learned Single Judge of this Court has held that, amendment cannot be claimed as a matter of right and under all circumstances, the Court can very well reject the prayer for amendment, if the same is not bona fide; an amendment changing the complexion of the litigation cannot be allowed and also held on the facts and circumstances therein that, though amendment is sought for at pre-trial stage, the same is belated and not bona fide and hence, not permitted.
29. In Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others (supra), the Hon'ble Apex Court has held that the amendment therein was not only a belated one but also an afterthought and therefore, held not to be allowed.
30. Now, in the light of the above decisions, it is to be decided whether the trial Court was right in dismissing the applications for amendment https://www.mhc.tn.gov.in/judis Page 25 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 and impleadment.
31. On a perusal of the order passed by the trial court, it is seen that the plaintiff has stated in the plaint that he is in possession of the suit property. Now, the plaintiff has come up with amendment for recovery of possession and damages caused by the defendants 1 and 2, which would expose the falsity of the pleadings of the plaintiff that he was in possession of the suit property. In other words, by reason of the amendment sought for by the plaintiff, the plaintiff indirectly admits that he was not in possession of the suit property, as pleaded in the plaint. The trial Court also found that the amendment sought for by the plaintiff would amount to introducing a new cause of action than the one originally pleaded in the plaint. The amendment sought for by the plaintiff, if permitted, would alter the nature of the lis between the parties, for which, it is open to the plaintiff to file a new suit. The trial Court also rendered a specific finding that the plaintiff was never in possession of the suit property, however, he has filed a suit for bare injunction as if he was in possession of the suit property. The trial Court also observed that, on the strength of the ad-interim injunction granted in favour of the plaintiff, the plaintiff had put up construction in the suit property and that the first defendant filed W.P.No.26204 of 2017, in which, this Court has directed the National https://www.mhc.tn.gov.in/judis Page 26 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 Highways Department to remove the construction put up by the plaintiff. Therefore, the trial Court concluded that there is no documentary evidence produced by the plaintiff to show as to how he will be entitled for recovery of damages towards such demolition for a sum of Rs.10,00,000/- from the defendant and also for future damages @ Rs.5,000/- per month. It is further observed that National Highways Department is the necessary party to the suit, but not the CMDA, inasmuch as the suit land was delivered by CMDA to National Highways vide Land Delivery Receipt, dated 25.09.2013. Further, no notice under Section 80 of Code of Civil Procedure has been issued by the plaintiff to the Government, as it proposes to make a claim in respect of the land in possession of the Government. With regard to cancellation of the Gift Deed, dated 16.07.2013, there is no averment as to the limitation. For all the above reasons, the trial Court refused to allow the applications for amendment as well as impleading the CMDA as party respondent.
32. The trial court, in the opinion, has rightly held that the amendment proposed by the plaintiff, if allowed, would entirely introduce a new cause of action. At the risk of repetition, it is to be stated that the plaintiff filed the suit for bare injunction by referring the suit property as vacant. After filing of written statement by the first respondent, he has not come up with the https://www.mhc.tn.gov.in/judis Page 27 of 30 C.R.P. (PD) Nos.2784 and 2785 of 2018 present amendments to file a comprehensive suit for recovery of possession, damages for use and occupation etc., In such view of the matter, the amendment sought for by the plaintiff cannot be permitted even though such amendments have been sought before commencement of the trial in the suit. Similarly, the impleadment of CMDA has nothing to do with the nature of the relief sought for in the suit and the presence of CMDA will not in any manner assist the court in determining the real controversy involved in the lis.
33. For all the reasons mentioned supra, the fair and decreetal order dated 12.04.2018 passed in I.A.Nos.1111 and 1112 of 2017 respectively in O.S.No.289 of 2017 on the file of the Principal District Munsif, Poonamallee. stands confirmed. Both the Civil Revision Petitions are dismissed. No costs.
22-03-2022
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The Principal District Munsif,
Poonamallee.
https://www.mhc.tn.gov.in/judis
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C.R.P. (PD) Nos.2784 and 2785 of 2018
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C.R.P. (PD) Nos.2784 and 2785 of 2018
S. KANNAMMAL, J.
mkn
C.R.P. (PD) Nos.2784 and 2785 of 2018
22.03.2022
https://www.mhc.tn.gov.in/judis
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