Madras High Court
J.R.Arun Kumar vs K.Boopalan on 3 October, 2012
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.10.2012 CORAM THE HON'BLE MR.JUSTICE S.RAJESWARAN C.R.P.(PD) Nos.89 and 90 of 2010 and M.P.Nos.1 and 1 of 2010 1.J.R.Arun Kumar 2.S.Murugesan 3.M.Kumaravel 4.Sathyananthan 5.Sadanandan 6.M.Kangeyan ... Petitioners in both C.R.Ps Vs. K.Boopalan ... Respondent in both C.R.Ps Prayer in C.R.P.No.89/2010: This petition has been filed under Article 227 of the Constitution of India against the order dated 19.11.2009 made in I.A.No.6547 of 2009 in O.S.No.4312 of 2007 on the file of the Vth Assistant Judge, City Civil Court, Madras. Prayer in C.R.P.No.90/2010: This petition has been filed under Article 227 of the Constitution of India against the order dated 19.11.2009 made in I.A.No.6548 of 2009 in O.S.No.4312 of 2007 on the file of the Vth Assistant Judge, City Civil Court, Madras. For petitioners in both C.R.Ps : Mr.B.Kumar Senior Counsel for Mr.R.Loganathan For respondents in both C.R.Ps : Mr.S.Subbiah for Mr.S.D.Ramalingam COMMON ORDER
Since the issue involved in both the Civil Revision Petitions are one and the same, a common order is being passed to dispose off these two Civil Revision Petitions.
2.The defendants in O.S.No.4312 of 2007 are the revision petitioners in both the Civil Revision Petitions and the respondent in both the Civil Revision Petitions is the plaintiff in the suit.
3.For the sake of convenience, the parties are referred to herein as per their rankings in the suit.
4.O.S.No.4312 of 2007 was filed by the plaintiff for the relief of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property. Written statement was filed by the defendants on 30.08.2007. Plaintiff as P.W.1 let in evidence on 10.12.2007 by filing an affidavit and marking documents, namely, Exs.A1 to A29. He was cross-examined on 13.12.2007 and the cross was completed on 02.06.2008. In April 2009, the plaintiff filed I.A.Nos.6547 and 6548 of 2009. I.A.No.6547 of 2009 filed by the plaintiff under Order I Rule 10 CPC to implead third parties as proposed defendants in the suit and I.A.No.6548/2009 was filed by the plaintiff to amend the pleadings in the plaint in the suit under Order VI Rule 17 CPC. A common counter affidavit was filed by the defendants opposing these two applications. The trial court in and by order dated 19.11.2009, by a common order, allowed the two applications. Aggrieved over the same, the defendants have filed the above Civil Revision Petitions for the aforesaid prayer.
5.On 12.01.2012, this Court in both the C.R.Ps has granted stay not to carry out the amendment.
6.In O.S.No.4312 of 2007, the case of the plaintiff is that he is the absolute owner of the suit schedule property and the defendants 1 to 3 attempted to interfere with his possession and therefore, the bare injunction suit was filed to protect his possession.
7.In the written statement filed by the defendants 1 to 3, it was denied that the plaintiff owned the suit scheudle property. According to the defendants, the first defendant and his two sons are the joint owners of the suit property and in that capacity they entered into an agreement of sale proposing to sell the property with the second defendant. When there was a dispute between them, the second defendant filed O.S.No.196 of 2004 for specific performance of the agreement. The suit was decreed on compromise and thereafter, the nominee of the second defendant by name M.Kangeyan (the proposed 6th defendant in I.A.No.6547 of 2009) paid the balance sale consideration and purchased the property vide sale deed dated 11.07.2007 which was registered as Doc.No.6435/2007 on the file of SRO, Sembiam. The said Kangeyan is the son of the second defendant.
8.Admittedly, after P.W.1's cross-examination was over, these two interlocutory applications were filed i.e., I.A.No.6547/2009 to amend the plaint with a number of amendments which includes two new prayers namely 1) for declaration that the plaintiff is the absolute owner of the suit schedule property and 2) for declaration that the sale deed dated 11.07.2007 registered as Doc.No.6435/2007 and the consequential Rectification Deed dated 08.08.2007 is collusive, sham and nominal without any consideration and in I.A.No.6548/2007, the plaintiff wanted to implead the said Kangeyan who had purchased the above property under the above referred sale deed and two others as proposed defendants.
9.Both the applications were stoutly resisted by the defendants and the proposed defendants by filing a common affidavit. They relied on the amendment to Order VI Rule 17 and according to the amended provision, no application for amendment will be allowed after the commencement of trial. The only exception is that the applicant should show his due diligence and bonafides for not raising the matter before the commencement of trial. In the counter they pointed out that P.W.1 was already cross-examined not only in the present suit, but also in O.S.No.4689/2007 which was filed by the plaintiffs and the proposed defendant in I.A.No.6548/2007 viz., M.Kangeyan. It is pertinent to refer to the fact that after filing of the present suit i.e., O.S.No.4312 of 2007, the very same plaintiff filed O.S.No.4689 of 2007 against M.Kangeyan alone for a similar injunction restraining him from interfering with his peaceful possession of the suit schedule property. Therefore, both the suits were tried together and according to the defendants in O.S.No.4312 of 2007, P.W.1 was thoroughly cross-examined by them in both the suits. They also referred to marking of Exhibits A1 to A29. Thereafter, some applications were filed and that were taken up to the High Court by filing Civil Revision Petition and after the dismissal of the Civil Revision Petition, they filed another application to issue summons to Tahsildar which was later withdrawn by him. Thereafter, these applications were filed to stall the trial further as it is very much unexpected as it is his own case. In short, the defendants resisted both the applications on the ground that it is barred by Order VI Rule 17 CPC and the only intention is to keep the suit pending forever.
10.By a common order dated 19.11.2009, both the applications were allowed and the said order is under challenge in these two Civil Revision Petitions.
11.The learned senior counsel Mr.B.Kumar appearing for the petitioners herein by referring to Order VI Rule 17 CPC and the two judgments mentioned below contended that the trial court has committed an illegality and the same is to be rectified.
1.2008 (5) CTC 253 (Rajkumar Gurawara (Dead) through LRs vs. S.K.Sarwagi & Co. Pvt. Ltd., and another ) 2.2012 (3) MLJ 159 (SC) (J.Samuel and others vs. Gattu Mahesh and others)
12.Per contra, the learned counsel appearing for the respondent by referring to a few judgments which are referred to below, submitted, that the trial court has examined his discretion in allowing these applications and the same should not be interfered with by this Court.
1.2009 (4) CTC 213 (C.Rajamani vs. C.Rathnabai) 2.2012 (2) LW 35 (Thavittu Ponnu vs. Devaki Ammal and others) 3.2007 (5) CTC 595 (Church of South India Trust Association, Tiruchirapalli, Thanjavur Diocesan Council, represented by its Diocesan Treasurer, Mr.R.Sureshkumar and others vs. Kovil Pillai and others) 4.2006 (5) CTC 609 (Hi. Sheet Industries, a partnership firm, carrying on business at 61-D, D.V.Road, Ambur Town, Vellore District vs. Litelon Limited, having its Office at No.68, Sipcot Industrial Complex, Hosur, rep. By its Managing Partner S.Gokul and others)
13.Before dwelling upon to decide the issue in hand let me cull out the legal principles enunciated in the above judgments referred to by both sides.
14.In 2008 (5) CTC 253 (cited supra), the Hon'ble Supreme Court has held as follows:
"5.Originally, the appellant/plaintiff filed the suit for declaration of his exclusive right to do mining operation in the suit property. However, after impleadment of M/s S.K. Sarwagi and Company as second defendant (first respondent herein) after closing of the evidence and during the course of argument, the plaintiff filed an application under Order VI Rule 17 read with 151 CPC for amendment of the plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages of Rs.5.00 lacs in favour of the plaintiff for their mining operations without consent of the plaintiff in the plaint schedule property. Though the learned Additional District Judge allowed the application for amendment on payment of cost of Rs.300/- the High Court in a civil revision filed under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment which is the subject matter in this appeal. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under:-
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."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order 6, Rule 17, C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
6) With this background, let us consider the application filed by the plaintiff and the orders passed by the District Court as well as the High Court. We have already stated that originally the suit was filed against the sole defendant and subsequently the second defendant came on record as per the order dated 11.07.2003. It is the case of the plaintiff that he is the absolute owner of the suit schedule lands. It is not in dispute that prior to filing of the suit, notices were exchanged between the parties. In their reply dated 18.8.2001 to the plaintiff's notice, it was specifically asserted that the first respondent herein, namely M/s S.K. Sarwagi & Co. Pvt. Ltd. is carrying on mining activities in the suit schedule lands. The perusal of the reply notice issued by D-2 to the plaintiff, which has been extracted by the High Court in the impugned order, clearly shows that the plaintiff was made known that the suit lands were in possession of D-2 having taken them on lease from the Government. With the said information in the reply notice about the mining being carried on by D-2, the plaintiff filed the said suit without impleading him for possession and damages.
7) The other relevant fact to be noted is the plea taken in the written statement filed by D-1 wherein, it is specifically stated that the suit schedule lands are classified as poramboke lands in survey and settlement operations and that the Government issued G.O. Ms. No. 459 (Industries and Commerce) Department, dated 28.11.1998 leasing out an extent of 18.35 hectares of land covered under Survey Nos. 106 and 107 of Ayitham Valasa Village in favour of A.P. Mineral Development Corporation for mining purpose for twenty years. It is further averred that the Government in G.O. Ms. No. 102 (Industries and Commerce) Department, dated 20.2.2001 issued Orders transferring the mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. Pvt. Ltd. for the unexpired period of lease, i.e. upto 1.6.2019. As rightly observed by the High Court, it is explicit from the written statement filed by D-1 that the plaintiff was made known of the fact that the Government issued order transferring mining lease held by A.P. Mineral Development Corporation in favour of M/s Sarwagi and Co. P. Ltd. (D-2) and the leased lands are in possession and enjoyment of M/s Sarwagi & Co. P. Ltd. As rightly pointed out by the learned counsel for the contesting respondent, in spite of the plaintiff being put in knowledge of the act of the person in possession of the suit property did not chose to implead the said M/s Sarwagi & Co. P. Ltd. (D-2) which came on record on its own application as D-2 in the suit. It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not chose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, the plaintiff came up with an application under Order VI Rule 17 seeking amendment of the pleadings. We have already explained the implication of proviso to Rule 17. Though even after commencement of the trial, parties to the proceeding are entitled to seek amendment, in the light of the factual details such as clear information in the reply notice prior to the filing of the suit and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument can not be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. Further it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI, Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge."
15.In 2012 (3) MLJ 159 (SC) (cited supra), this Court has held as follows:
"12) The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this, the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The Court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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.
13) Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.
14) A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term 'due diligence' determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.
15) In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.
16) The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who prepared the plaint, signed and verified the plaint showed some attention, this omission could have been noticed and rectified there itself. In such circumstances, it cannot be construed that due diligence was adhered to and in any event, omission of mandatory requirement running into 3 to 4 sentences cannot be a typographical error as claimed by the plaintiffs. All these aspects have been rightly considered and concluded by the trial court and the High Court has committed an error in accepting the explanation that it was a typographical error to mention and it was an accidental slip. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order VI Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order VI Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications. [vide Aniglase Yohannan vs. Ramlatha and Others, AIR 2005 SC 3503 : (2005) 7 SCC 534, Ajendraprasadji N. Pandey and Another vs. Swami Keshavprakeshdasji N. and Others, Chander Kanta Bansal vs. Rajinder Singh Anand, (2008) 5 SCC 117, Rajkumar Guraward (dead) through LRS. vs. S.K.Sarwagi and Company Private Limited and Another, (2008) 14 SCC 364 : LNIND 2008 SC 1189, Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 : LNIND 2008 SC 2419, Man Kaur (dead) By LRS vs. Hartar Singh Sangha, (2010) 10 SCC 512: LNIND 2010 SC 957 : (2010) 7 MLJ 1059)."
16.In 2006 (5) CTC 609 (cited supra), this Court has held as follows:
"11.19. In the instant case, the suit is instituted in October, 1990. The amendments came into force with effect from 01.07.2002. Therefore, the proviso to Rule 17 of Order 6 CPC is not applicable in the instant case, however, we clarify that those amendments under Act 22 of 2002 are applicable to the pleadings instituted with effect from 01.07.2002.
12.00.RESULT :
In the result, the reference is answered holding :
(1) that the delay in filing the application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the Court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the suit.
(2) According to the proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed.
(3) The proviso to Order 6 Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 01.07.2002 and not to the pleadings instituted prior to 01.07.2002 and while considering the proviso to Order 6 Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents, addressing of arguments etc., and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.
(4) Before parting with the decisions, we are tempted to cite a paragraph from a case Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 "All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." (emphasis supplied) Keeping the above principle, the Court of Law has to dispense the justice.
(5) Therefore, we hold that the impugned order, disallowing the amendment, is liable to be set aside for more than one reason.
(6) In view of our aforesaid discussion, we are of the view that the trial Court has erred in rejecting the application for amendment of the plaint. Accordingly, the order of the trial Court in I.A.No.589 of 2002 in O.S.No.45 of 1996 is set aside and the application for amendment of plaint is allowed. The plaintiff is directed to proceed to the trial Court forthwith and take immediate steps for the necessary amendment as mentioned in the said application and carry out the amendment within a period of one month from the date of this order.
7) We cannot ignore the facts and circumstances of this case and, accordingly, we direct the trial Court to dispose of the suit itself within a period of three months from the date of communication of this order to it, as already there is a considerable delay by now. There shall be no order as to costs. Consequently, the connected C.M.P.No.8415 of 2003 is closed."
17.In 2007 (5) CTC 595 (cited supra), this Court has held as follows:
"13. A perusal of the judgments cited by the learned Counsel for the petitioners would bring out the following principles that are governing the Application filed under Order 6 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.
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."
16. It is true that the suit has been pending from 1990 onwards, but the written statement of the Tahsildar was filed only in December 1998. Further, delay alone is not the criterion to reject an Application filed under Order 6 Rule 17 CPC. If the proposed amendment does not bring in a new cause of action or does not alter the nature and character of the suit, the same could be allowed, even if it is belated by ordering cost to the other side by way of compensation.
17. The trial court observed that the trial has commenced and the suit is posted for cross-examination of defendants 7 to 9 and therefore the amendment Application if allowed would further delay the proceedings. This reasoning given by the trial court is not correct as amendment could be ordered at any time at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties. Further in my considered view the proposed alternative prayer and the addition of description in the plaint would not alter the nature and character of the suit and in fact it is in consonance with the pleadings of the plaintiffs pleading that they have been in possession of the property right from 2.4.1916. It is also pertinent to add that neither the Government nor the municipality have filed a counter opposing the amendment application."
18.In 2009 (4) CTC 213 (cited supra), this Court has held as follows:
"4.Though much was argued on the code of Civil Procedure (Amendment), 2002, prior to the amendment, the discretion was entirely left to the Court either for considering or rejecting the amendment and there was no embargo on it. However, after the Amendment Act came into force, Order 6, Rule 17 occupies the field for considerable of the Court to order the amendment application. Though in general, the amendment cannot be ordered after the Trial has commenced, still a discretion is conferred on the Court to order such amendment in case if the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the Trial.
5.In fact, the power of this Court to order amendment came up for consideration before a Full Bench of this Court on a reference and after analysing various judgments, the Full Bench had also found that an amendment could be ordered even at the stage of Trial, as the Trial must be understood as final hearing of the Suit and such amendment could be order provided the Court must apply itself to the judicial discretion as to the bonafides of the applicant in seeking for amendment even at the time of Trial. The above judgment was rendered only on the ground that all rules of Court are nothing but provisions intended to secure the proper administration of justice. In the wake of the provisions, the power of this Court to Order amendment even after the trial has commenced is not taken away, except the Court is bound to satisfy itself as to the bonafides of the applicant."
19.In 2012 (2) LW 35 (cited supra), wherein a learned Single Judge of this Court has held that when the trial has not been complete and the amendment sought for is with regard to substitution of boundaries of the extent of second item of the suit property no prejudice would be caused to the other side when the amendment is allowed. Further the learned Judge has held that unless aggrieved parties are prejudiced of the proposed amendment the Courts are at liberty to allow the amendment application. In addition the trial is not over and the respondent is also entitled to file additional statement and lead further evidence.
19.It is also very useful to refer to Order 6 Rule 17 CPC, which reads as follows, for better appreciation:
17.Amendment of pleadings. "The Court may at any stage of the proceedings allow either party o 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 question in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
21.The first part of the rule makes it abundantly clear that at any stage of the proceedings parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real question in controversy between the parties. However, this is subject to Proviso appended therein. This Proviso was substituted by Act 22 of 2002 with effect from 01.07.2002 which makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the Court that inspite of due diligence they could not have raised the issue before the commencement of the trial and if the Court satisfies with their explanation, amendment can be allowed even after commencement of the trial. Therefore as per this Proviso pre-trial amendment is to be allowed liberally than those which are sought to be made after the commencement of trial.
22.In the light of the above decisions and the proviso added to Order VI Rule 17 CPC by way of an amendment, if the order passed by the trial court is considered, I have no hesitation in holding that the order requires to be interfered with as the proviso added by way of amendment to Order VI Rule 17 CPC has not at all been considered by the Trial Judge.
23.As per the proviso, no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. Therefore, it is very clear that the court should come to a conclusion that there is diligence and bonafide on the part of the applicant and despite that due diligence and the bonafide on the part of the applicant shown, the party could not have raised the matter before the commencement of trial.
24.Let me consider the diligence and bonafide of the revision petitioner herein in bringing the amendment application as well as the impleading petition.
25.It is stated by the plaintiff in the affidavit filed in support of the amendment application that since the defendants are in collusion, now trying to dispute the title of the plaintiff based on some forged and concocted documents, it has become just and necessary for him by way of abundant caution to amend the plaint suitably with necessary averments for declaration of title and to implead the respondents 4 to 6 as party/defendants in the above suit for the effective disposal of the reliefs sought for. It is further stated by the plaintiff that he could not have raised the above matter before the commencement of the trial inspite of any account of diligence and the acts committed by the defendants came to be noticed, and investigated with all diligence in the manner as submitted by him. Therefore, according to the plaintiff, the application for amendment is a bonafide one and it is fully covered under the proviso to Order VI Rule 17 CPC and such application for amendment though filed after the commencement of trial is maintainable both on facts and in law.
26.However, these submissions cannot stand the scrutiny, if the written statement filed by the defendants in O.S.No.4312/2007 is considered carefully.
27.In the written statement filed in O.S.No.4312/2007, the defendants concerned not only denied the title of the plaintiff to the suit schedule properties but also categorically offered that the first defendant and his two sons are the joint owners of the suit schedule property and in that capacity, they entered into a sale agreement with the second defendant. As some dispute arose between them, the second defendant filed a civil suit in C.S.No.196 of 2004 and the same was decreed on compromise. Thereafter, the nominee of the second defendant/the plaintiff in C.S.No.196/2004 by name M.Kangeyan who is none other than the proposed 6th defendant in I.A.No.6547/2009 paid the sale consideration and purchased the property for a valuable consideration vide Sale Deed dated 11.07.2007 which is registered as Doc.No.6435/2007 on the file of SRO, Sembiam. From the above, it is very clear that in the bare injunction suit filed by the plaintiff claiming title and to protect his possession, a written statement has been filed denying the title of the plaintiff and claiming the title by the first defendant and also the subsequent sale made by them to one Kangeyan. The sale deed NO.6435/2007 in the Registrar's office and the date of the sale deed were clearly mentioned in the written statement itself. Therefore, it cannot be said that all these facts came to the light later on i.e., after the commencement of the trial as the written statement was filed in the year 2007 itself. If only the plaintiff has shown some diligence, definitely he would have raised all these things by way of a suitable amendment application before the commencement of trial itself and therefore, I find the due diligence shown on the title was to maintain this application after the commencement of trial. This conclusion of mine is further strengthened by the fact that the very same plaintiff filed a similar bare injunction suit to protect his possession against Thiru Kangeyan (the proposed 6th defendant in I.A.No.6547/2007 in O.S.No.4312/2007). In that O.S.No.4312/2007 also, the plaintiff averred in the plaint that the said kangeyan is trying to interfere with his possession and therefore, that should be protected. The plaintiff also referred to the pending previous suit i.e., in O.S.No.4312/2007. The said Kangeyan, the sole defendant in O.S.No.4312/2007 filed a written statement in August 2007, wherein also, the title of the plaintiff was clearly denied and the ownership of the defendant was clearly putforth on the basis of the very same document i.e., Doc.No.6435/2007 dated 11.07.2007 on the file of SRO, Sembiam. From the written statement filed in both the suits viz., O.S.No.4312/2007 and O.S.No.4689/2007, the inescapable conclusion that could be arrived at is that in the year 2007 itself the plaintiff was put on notice that his title was stoutly denied and the title of Kangeyan was very much protected on the basis of the Doc.No.6435/2007 dated 11.07.2007 on the file of SRO, Sembiam.
28.If that being so, the reasons given by the plaintiff in the affidavit filed in support of the amendment application cannot be accepted and therefore, the vital ingredient namely the due diligence is very much lacking on the part of the plaintiff and therefore the proviso appended to Order VI Rule 17 CPC will definitely come into play and consequently the amendment application is not at all maintainable as the same has been filed after the commencement of trial. It is not at all in dispute that P.W.1 was already cross-examined thoroughly in both the suits in a joint trial and therefore, the plaintiff woefully failed to satisfy that in spite of the due diligence, he could not have raised these things before the commencement of trial. Therefore, I am in entire agreement with the submission made by the learned senior counsel for the petitioner that the trial court has committed an illegality in allowing both these applications and consequently any order passed by the trial court on 19.11.2009 in I.A.Nos.6547 and 6548 of 2009 in O.S.No.4312/2007 is set aside.
29.The trial court while referring to a number of judgments in the common order has not really gone into the issue i.e., the bar introduced by way of amendment to Order VI Rule 17 CPC. All it did was whether the proposed amendment if allowed would cause any prejudice or not without considering the maintainability of the application after the commencement of trial.
30.Therefore, both the Civil Revision Petitions are allowed and the common order is set aside. No cost. Consequently, connected miscellaneous petitions are closed.
31.Since both the suits are of the year 2007 and examination of witnesses was almost over, the trial court is hereby directed to take up the trial of the suits and complete the same on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this order.
03.10.2012 cse Index:Yes/No Internet:Yes/No S.RAJESWARAN,J cse To The Vth Assistant Judge, City Civil Court, Madras Pre-delivery order made in C.R.P.(PD) Nos.89 and 90 of 2010 and M.P.Nos.1 and 1 of 2010 03.10.2012