Madras High Court
D.Ramanujam vs R.Panneerselvam on 24 March, 2006
Author: P.P.S.Janarthana Raja
Bench: P.P.S.Janarthana Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24/03/2006
CORAM
THE HON'BLE MR.JUSTICE P.P.S.JANARTHANA RAJA
C.R.P (PD) No.566 of 2005
D.Ramanujam .. Petitioner
-Vs-
R.Panneerselvam .. Respondent
Civil Revision Petition filed under Article 227 of the Constitution of
India against the fair and decreetal order in I.A. No.623 of 2004 in O.S.
No.113 of 2003 dated 16.02.2005 on the file of the District Munsiff's Court,
Cuddalore.
!For petitioner : Mr.R.Muralidharan
^For respondent : Mr.R.Subramanian
:O R D E R
The present Civil Revision Petition is filed against the fair and decreetal order in I.A. No.623 of 2004 in O.S. No.113 of 2003 dated 16 .02.2005 on the file of the District Munsiff's Court, Cuddalore.
2. The brief facts necessitated for disposal of this C.R.P. is as under:-
The Plaintiff is the petitioner. The property described in the schedule belonged to one Anbazhagi, wife of S.K.Velayuda Mudaliar. The plaintiff purchased the said property from the said Anbazhagi on 18.10 .1997 for a sum of Rs.66,000/-. The defendant is the respondent who is the owner of the Flat No.111 which is situated on the South of Kumar Salai, East of Plot No.112, West of Plot No.110 and North of Plot No.117. The defendant is an adjacent owner. The plaintiff is the owner of Plot Nos.112 and 117. According to the plaintiff, the defendant claims right over the disputed area i.e., a right to the extent of 3 0 feet in Plot No.117 which belonged to the plaintiff. Also, the defendant has been trying to raise a compound wall in the suit property. If the defendant is allowed to construct the compound wall, it would cause great inconvenience and it will also cause loss which could not be compensated at all. Hence, the plaintiff filed the suit and prayed to pass an order of permanent injunction as against the defendant and his men from interfering with the possession and enjoyment of the suit property by the plaintiff. The said plaint was filed in March 2003. The defendant filed the written statement on 23.06.2003 denying the allegation made in the plaint and also stated that he was in possession of the suit property. The plaintiff filed an I.A. No.623 of 2004 before the Principal District Munsif Court, Cuddalore for amendment of the plaint and prayer in the amendment plaint was for declaration and for possession of the suit property. The defendant, immediately filed a counter and resisted the I.A and contended that he has been in possession and enjoyment of the property from his purchase and the averment in the written statement also makes it clear to that effect. The defendant further stated that the plaintiff is not in possession at all at any point of time. The said I.A. was taken up by the lower Court and was dismissed on the ground that it was filed after the trial commenced and no proper reason was given for the belated filing of the amendment petition.
3. The learned counsel for the plaintiff submitted that the amendment was sought in respect of ancillary relief only and the matter relating to declaration of title is already in the original plaint and therefore there is no change of cause of action and the Court must see that there should not be multiplicity of proceedings. Further it is stated that there is no prejudice caused to the respondent and hence the Court below ought to have allowed the amendment. He also relied on the Supreme Court judgment reported in (2002) 4 CTC 189, in the case of Sampath Kumar Vs. Ayyakannu and Another.
4. The learned counsel for the respondent submitted that the plaintiff is never in possession of the property and it was also stated clearly in the written statement. The Trial Court also commenced the trial and only after the trial has been commenced, the amendment petition was filed and hence it is not sustainable in law.
5. We heard the counsel appearing for both the sides. Upon consideration of the statements and the reading of the impugned order on record, the points arise for consideration are:-
a) After commencement of the trial and after the examination of P.W.1 , whether the amendment application filed, could be allowed?
b) In refusing the amendment is there any improper exercise of discretion warranting interference?
The following dates are very relevant for the purpose of this case. The suit was filed on March 2003. The return statement was filed on 23.06.2003. The amendment application was filed on 15.03.2004. The said amendment application was filed after a pe riod of nine months. In the written statement also, it was clearly stated that the defendant is in possession of the property. After receiving the said return statement, the plaintiff had not taken any steps seeking to amend the plaint. A new proviso in C.P.C. Amendment Act, 1999 has been added in Order 6, Rule 17, which reads as follows:
"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
From a reading of the above proviso, it is clear that once the trial has been commenced, no application for amendment of the pleadings can be allowed unless the Court comes to a conclusion that inspite of the diligence, the party could not have raised the matter before the commencement of the trial. In the present case, the lower Court posted the case on 24.09.2003 and issues were framed on the same day. Thereafter the matter was posted for hearing on 08.03.2004, on which date, P.W.1 was examined in chief and Exhibits A1 and A2 were marked. Thereafter on 10.03.2004, the matter was posted for cross examination of P.W.1. On 12.03.2004, the matter was heard and P.W.1 was also cross examined. Then, Ex.R1 was marked and posted for further evidence on 15.03.2004, during which time, the petition for amendment was filed. On 12.03.2004, the plaintiff filed a proof affidavit in which the plaintiff did not make any statement regarding the possession of the property and if really the defendant is in possession, he would have stated so. According to the respondent defendant, the plaintiff trespassed the land on 09.12.2003 and is in possession. If really the defendant trespassed into the property and consequently in possession of the property, the plaintiff would have brought to the notice of the Court. When the trial has already commenced, the present amendment petition was filed without giving any valid reason for not filing the amendment before the commencement of the trial. Even after the trial, the Court could not allow the amendment petition unless the Court is satisfied that inspite of the due diligence, the party could not have raised the matter. In this case, the lower Court correctly applied the proviso and came to a correct conclusion that the plaintiff had not stated any reason in the amendment petition for belated filing.
6. The counsel for the petitioner relied on the Supreme Court judgment cited supra. In that judgment, the basic structure of the suit was not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff and hence the Apex Court held as follows:
"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 recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the relief 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 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 before the commencement of the trial."
The apex Court judgment is before the C.P.C. Amendment of Order 6, Rule 17. The Supreme Court judgment relied on by the petitioner has no relevance to the facts of this case.
7. In the foregoing reasons, this Court is of the view that there is no error or infirmity in the order of the lower Court. Also there is no improper exercise of discretion in dismissal of the amendment petition and hence the impugned order does not require interference. Hence, the Order in I.A. No.623 of 2004 in O.S. No.113 of 2003 dated 1 6.02.2005 on the file of the District Munsiff's Court, Cuddalore is confirmed and the Civil Revision Petition is dismissed. No costs. Consequently, the connected C.M.P. No.5983 of 2005 is also dismissed.
km To District Munsif Court, Cuddalore.