Madras High Court
Krishnaru And Prasanth vs Incorporated And Unincorporated ... on 25 July, 2005
Equivalent citations: 2005(5)CTC608, (2005)4MLJ270
ORDER M. Thanikachalam, J.
1. The appellants/defendants, who were unable to satisfy the first appellate Court, in a petition to amend the written statement, are the revision petitioners.
2. The respondent in this revision, moved the District Munsif's Court, Kuzhithurai for declaration of title in respect of an immovable property, measuring 68 cents, in old Survey No. 1116-A, co-related to new Survey Nos. 552/2 and a portion of 552/1, with a consequential prayer of permanent injunction or in the alternative for recovery of possession, claiming title to the suit property, further alleging that while re-survey took place, the authorities have wrongly classified the suit property as patta land, issuing patta to the defendants, with among other grounds.
3. The suit was resisted by the defendants/revision petitioners contending that at any point of time, the suit property was not a poramboke, that the entire area in re-survey Nos. 552/1 and 552/2 belongs to the defendants, which was gifted to the first defendant elsewhere in the year 1973 by his paternal uncle, by name Thiruvikramaru, that the old survey number is now included in new survey numbers, that in re-survey No. 552/2, there was a temple constructed by the first defendant's predecessors and handed over to Devaswom Board, as per the request of the villagers, that the temple area and some surrounding place, measuring 25 cents, alone, are being enjoyed by the plaintiff/Devaswom Board, though the title is with the first defendant, that the first defendant is, even now, ready to transfer the area, where actually the temple is situated, to the plaintiff and that in the remaining area, in the suit survey numbers, the plaintiff, cannot claim any title as well as injunction, in view of the fact that the title and possession of the same are vested with the defendants, with among other grounds.
4. On the basis of the pleadings projected by either parties, framing issues, the trial Court, took the case for trial, wherein on the side of the plaintiff, two witnesses have been examined, seeking aid from 19 documents, which were sought to be countered by the defendants by examination of the second defendant as D.W.1, who sought the aid of 19 documents. The learned District Munsif, evaluating the above materials as well as considering the Commissioner's Report and plan viz. Exs.C.1 and C.2, came to the conclusion that the plaintiff has proved his title, whereas the defendants/revision petitioners have failed in their attempt to prove the same as well as exclusive possession. Taking this view, the suit came to be decreed as prayed for, as per the judgment dated 29.8.2000, which is under challenge before the Sub Court, Kuzhithurai in A.S. No. 102 of 2000.
5. The revision petitioners/defendants, pending appeal, in order to amend the written statement filed in the suit, have filed I.A. No. 62 of 2002, alleging that while tracing the title to the suit property, in the written statement, they have failed to mention the earlier document under which their donor got the right, who purchased the property in the Court's auction sale held in O.S. No. 1415 of 1102 M.E., further alleging that the said facts came to their knowledge only recently, at the time of filing the appeal. Thus, the revision petitioners wanted to insert, by way of amendment, paragraph No. 10 (A) in the original written statement filed in the suit, which was opposed by the plaintiff, who obtained a decree before the trial Court, denying the averments in the affidavit.
6. The learned Subordinate Judge, by going through the plea and counter plea, felt that the defendants/revision petitioners are attempting to introduce a new case, changing the basic structure of the case, without assigning any reason as to why this kind of defence was not taken originally. He has further came to the conclusion, the proposed amendment will change the claim of the parties regarding the suit property, introducing a new case. In this view, the amendment petition came to be dismissed on 28.3.2003, which is under challenge in this revision.
7. Mr.K.Sreekumaran Nair, the learned counsel for the revision petitioners, submitted that the revision petitioners/defendants are not introducing any new case inconsistent with the defence already taken in the original written statement and only, in order to furnish more particulars to the existing defence, the amendment is sought for, to amend the original written statement, which was not properly considered by the first appellate Court. It is the further submission of the learned counsel for the revision petitioners that the first appellate Court has failed to consider the wide amplitude of Order 6 Rule 17 CPC, which permits the parties to amend the pleadings at any stage, the dominant purpose being, there must be a final disposal to the dispute, giving opportunity to both the parties, which was curtailed in this case and in this view, the interference of this Court is an absolute necessity.
8. Mr.D.Hari, learned counsel appearing for the plaintiff/respondent, would contend that the defendants have not taken the plea, sought to be taken, now, by way of amendment, at the earliest opportunity, while filing the original written statement, and by the proposed amendment, they want to take an inconsistent plea, detriment to the right accrued to the plaintiff, which should not be permitted under Order 6 Rule 17 CPC, though the Court is competent to allow the amendment at any stage, provided, it is not inconsistent to the earlier stand taken and detriment to the interest of other side.
9. At this juncture, to resolve the real dispute between the parties, the case projected in the plaint and the original written statement should be remembered. Then only, we can say, authoritatively, whether the proposed amendment is aimed to introduce a new case or it aims to plead inconsistent stand, detriment to the plaintiff, who claims that by the original statement, he had acquired some right, which cannot be vanished or eclipsed by way of proposed amendment.
10. The suit property is an extent of 68 cents, as adverted above, comprised in two survey numbers. As per the revenue records, patta for the suit property was issued or granted in favour of the defendants/revision petitioners, which is challenged in the plaint as if the suit property is a poramboke, where the temple and its adjacent area are situated. The revision petitioners, while denying the title of the plaintiff/temple, though had admitted that the temple is in an area of 25 cents, would contend that the plaintiff is not the absolute owner of the suit property whereas the temple constructed by the first defendant's predecessors-in-title was entrusted to Devaswom Board, at the request of the villagers. It is the further case of the revision petitioners that even now they are willing to give 25 cents to Devaswom Board, thereby conceding the interest of the plaintiff, at least by way of giving the property, though the origin is disputed. Thus, it is seen, the actual dispute is regarding the remaining extent. While denying the title of the temple, in paragraph No. 10 of the written statement, it is stated:
"The entire area in Re-survey Number 552/1 and 552/2 of Edaicode village is owned by these defendants. 1st defendant got this property in 1973 as per gift deed No. 3194 executed by one M.Thiruvikramaru who is the paternal uncle of 1st defendant."
But, no pleadings, how the said Thiruvikramaru, the paternal uncle of the first defendant acquired title to the suit survey numbers. Only in order to supply the materials such as, how Thiruvikramaru had acquired property, the amendment is aimed.
11. In the proposed amendment, which was negatived by the first appellate Court, it is said that 'originally, this property belonged to one Alvan Krishnan Kesavan, whose property was brought for sale in court auction in O.S. No. 1415 of 1102 M.E. in which the property was purchased by one Krishna Iyer Raghupathy Iyer, who in turn had sold the property to Thiruvikramaru, who is the donor of the first defendant, as early as on 30.6.1107 M.E.' As I have adverted to above, it is the definite case of the revision petitioners that the suit property originally belonged to one Thiruvikramaru. By the amendment petition, the attempt of the revision petitioners is to state how Thiruvikramaru derived title to the suit property. Therefore, it cannot be said that there was no pleading, denying the title of the plaintiff or by way of proposed amendment, the revision petitioners are attempting to introduce totally a new case, inconsistent with the already existing defence.
12. Unfortunately, the learned Subordinate Judge, who dealt with the amendment application, failed to exercise his jurisdiction and, even I could say, failed to read the written statement and the proposed amendment, and that is why he landed in an erroneous conclusion, as if, the proposed amendment is aimed to change the basic character or structure of the suit, which cannot be the case at all. The reasons assigned by the learned Subordinate Judge, for refusal of the amendment application, are totally baseless, not in conformity with the law declared and in this view, I am of the opinion that the learned Subordinate Judge has failed in his duty to exercise the jurisdiction properly and even, it could be said, while exercising the jurisdiction, he has passed a wrong order, thereby causing irreparable loss to the revision petitioners, which requires to be erased, and for that purpose, the revision deserves meritorious.
13. The submission of the learned counsel for the respondent/plaintiff that the revision petitioners are introducing an inconsistent defence, by way of amendment, also failed to convince me, by reading the proposed amendment as well as the original written statement. According to the learned counsel for the respondent, the inconsistent plea taken by the revision petitioners in the amendment is, 'the plaintiff, who is in permissive possession of 25 cents, is not competent to dispute the title of the first defendant, in any manner, in this suit.'
14. Though in the face value, it may appear, as if it is inconsistent to the original plea, but reading of the pleadings, applying mind, would prove otherwise. In the written statement in paragraph No. 13 it is averred that 'the temple was constructed by the first defendant's predecessors and handed over to Devaswom Board, as per the request of the villagers'. It is also further averred that 'the ownership of the temple and the land is not yet transferred to the Devaswom Board'. It is further stated in paragraph No. 17 of the written statement that 'the first defendant is willing for surrendering and transferring the title of the temple situated area, about 25 cents, to Devaswom Board'. Thus, it is seen, in a way, it is pleaded by the defendants that they have handed over the area, where the temple is situated, at the request of the villagers, which may amount to 'permissive possession'. In tune with the above averments alone, now, the defendants want to say that the plaintiff is in permissive possession of 25 cents, not conceded the title, in fact it was already denied in the original written statement. By the original written statement, no right has been acquired by the plaintiff, based on any admission, which would follow, there is no possibility of taking away that right by the proposed amendment, which is aimed to plead 'permissive possession'. Thus, analysing the case on merits, I am unable to see any inconsistent defence in the case of the revision petitioners, deviating or changing from the original written statement, by introducing the amendment to the written statement. Therefore, refusing the amendment on the ground of change of defence, or that the proposed amendment would cause any deprivation of the right acquired by the plaintiff, is impermissible in law, in my considered opinion. Thus, concluding the facts, we have to see the law in this regard.
15. The suit was filed in the year 1997 and therefore the amended provisions of Order 6 Rule 17 CPC, proviso, which came into force on and from 1.7.2002 cannot be applicable and therefore, we have to apply the original provisions of Order 6 Rule 17 CPC, which confer upon the Court wide discretionary power, to allow the amendment, for the purpose of determining the real questions, in controversy between the parties.
16. Order 6 Rule 17 CPC permits the parties to the proceedings to seek amendment of pleadings, at any stage of the proceedings, which will include the appeal also, since it is the continuation of the suit, as repeatedly held. If at all, it could be described as belated one and it cannot be said as a barred one. In the affidavit, it is averred that the revision petitioners came to know, only recently, as to how Thiruvikramaru had derived the title to the suit property, tracing out the documents, etc. and it is not seriously denied, though there is general denial in the counter. Thus, because of the fact, the defendants came to know about the existence of other documents at a later stage, to support the title in favour of the original owner Thiruvikramaru, there is nothing wrong in permitting the revision petitioners to seek amendment of pleadings, which includes written statement, and it should be considered favourably, unless it is shown as barred under law or, if allowed, that would take away the right, if any, accrued by the other side.
17. The submission of the learned counsel for the respondent/plaintiff that the proposed amendment is belated one and the defendants failed to plead the case, now sought to be projected, in the original written statement at the earliest, may not have any bearing, considering the very purpose of enacting Order 6 Rule 17 CPC. If the Legislators have thought that the pleadings, once pleaded, should not be altered or amended or struck-off, there is no need to draft Order 6, Rules 16 and 17 of CPC. In their wisdom, the Legislators forethought that there may be parties, who are unable to plead all the case and defence available to them at the first instance, which may come to surface at later stage, and in this view alone, to provide an opportunity, to introduce the pleadings or to struck-off the pleadings, which are unnecessary or some thing like that, Order 6, Rules 16 and 17 CPC are enacted. Therefore, there is no meaning in repeating or crying that the defendants have failed to plead the proposed case in the original written statement and therefore they are not entitled to introduce the same by way of amendment. While drafting the legislation, it was thought that the period should not be restricted and that is why, very generously, the legislators have introduced the words 'at any stage of the proceedings', which should include even a second appeal, if possible, if the case has been made out.
18. In this view of the matter, only on the ground that the revision petitioners have failed to plead the proposed defence in the original written statement, denying the amendment at the threshold or rejecting the same, without giving an opportunity, will not be in accordance with law, since the law says 'sufficient opportunity should be given to the parties to plead all the cases' and the purpose being, once and for all, in the same proceedings, the dispute between the parties should be resolved.
19. The Apex Court, in Heeralal v. Kalyan Mal and Ors. , had the occasion to consider the scope of Order 6 Rule 17 CPC when the defendants therein attempted to withdraw the admission already made in the suit and to plead a new case, inconsistent to the case already pleaded in the original written statement. In the case involved in the above decision, in a suit for partition, the defendants have admitted seven out of ten properties, as joint family properties, in the written statement and contested with respect to three items alone as their exclusive properties. By the proposed amendment, the defendants therein attempted to withdraw the earlier admission made, regarding seven properties, viz. its character as joint family properties, thereby claiming exclusive title over the same also. The facts would indicate that by the admission of the defendants, they have conceded the rights of the plaintiff, at least to seven items, admitting that they are joint family properties, thereby allowing them to acquire right over the same, with certainty. That right accrued to the plaintiff, by way of admission, was sought to be nullified or sought to be withdrawn by the proposed amendment, wherein the defendants want to withdraw the admission, claiming exclusive title over the said properties also. Considering this factual situation, the Apex Court, placing reliance upon an earlier decision of a Bench of three Judges in Modi Spinning and Weaving Mills Co. LTD. v. Ladha Ram and Co. , observed:
"This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment, such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice."
20. This kind of factual situation is not available in the case on hand, in view of the fact that by way of proposed amendment, the revision petitioners are not making any attempt to withdraw any of the defence already raised or they have not sought to strike out any portion of the original written statement. In this view, the above ruling relied on by the learned counsel for the respondent will not come to his aid, to negative the right of the revision petitioners or to confirm the order of the first appellate Court.
21. In Arundhati Mishra v. Sri Ram Charitra Pandey , the Apex Court has held that 'the defendant could not be permitted to raise the additional plea of adverse possession by amending the written statement' in a title suit wherein the defendant retaining possession ascertained himself to be the real owner thereof, denying the title of the plaintiff in the original written statement. In a case of title, if the party claims that he is the owner of the property, tracing title to his property without reference to adverse possession, there may not be any animosity to enjoy the property, adversely to the other party, who is the real owner. In such cases, if the plea of adverse possession is allowed, it would amount to cutting the previous defence or disowning the previous defence or inconsistent to the previous defence. Because of this fact, the Apex Court, in the above ruling, has held:
"In the instant case, the plaintiff-respondent's pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. He never denounced his title nor admitted the title of the appellant. The plea of adverse possession, though available to the respondent, was never raised by him. Only on receipt of the first notice, he denied title of the appellant and made it known to him for the first time through the reply notice got issued by him. Even then the plea of adverse possession was not raised in the written statement. No explanation for the belated plea was given."
In the case on hand, at the risk of repetition, as adverted above, it is to be held the defendants/revision petitioners are not taking mutually any inconsistent plea, disowning or withdrawing the existing plea, and therefore, this ruling also fails to come to the aid of the respondent.
22. The dominant purpose of allowing the amendment is 'to minimise the litigation', as held by the Apex Court in Ragu Thilak D. John v. S. Rayappan and Ors. [(2001) 2 SCC 472] and therefore as far as possible, if there is no bar under the statute, all the amendments, which are necessary to resolve the dispute between the parties, should be allowed and should not be negatived. It is also held in the above decision that 'the amendment sought would change the nature of the suit originally filed, cannot be the reason for refusing the application for amendment, in view of the purpose of Order 6 Rule 17 CPC, which always aims permitting the parties to raise all the defences in the pending proceedings to reach a finality of decision thereby avoiding multiplicity of proceedings', which principle should be adopted in this case also.
23. The learned counsel for the revision petitioners, seeking aid from the dictum of the Apex Court in Lakhi Ram (Dead) Through Lrs. v. Trikha Ram and Ors. , would submit that the amendments could be allowed, even in the appellate Stage, which is to be accepted. In the case involved in the above ruling, the plaintiff therein had filed a suit for specific performance of contract for sale of suit property against the original owner and the subsequent purchasers. The owner, who entered into an agreement of sale, remained exparte and the suit was contested by the subsequent purchasers. Despite contest, the suit was decreed, which was challenged by the subsequent purchasers in the appeal. When the appeal was pending, it was contended by the defendants 2 and 3 therein, that the suit was barred by Section 16(c) of the Specific Relief Act, 1963, as the plaintiff did not aver in the plaint that he was ready and willing to perform his part of the contract. Because of this plea raised by the contesting defendants, the plaintiff therein has felt that he has failed in his duty to plead the required averments, as contemplated under Section 16(c) of the Specific Relief Act, and in this view, he moved an application for amending the plaint, under Order 6 Rule 17 CPC, seeking introduction of the averment regarding his willingness and readiness in performing his part of the contract, which was opposed. Repelling the contention of the contesting defendants, the amendment was granted by the first appellate Court and as a result, the trial Court's decree was set aside and proceedings were ordered to be remanded to the trial Court for framing proper issues and to decide the case afresh, because of the amendments introduced later, which came to be challenged before the High Court.
24. The High Court, unable to agree with the first appellate Court's decision, took a different view that the amendment could not have been granted because of the fact, it displace the defence of the defendants, and in this view, the order of the first appellate Court, in allowing the amendment, was set aside, consequentially, feeling that the suit would not survive, the first appeal was allowed and the plaintiff's original suit was dismissed, which came to be challenged before the Apex Court. While considering the facts and circumstances of the case, the Apex Court, came to the conclusion that "the amendment inserting the relevant averments under Section 16(c) of the Specific Relief Act does not change the cause of action and would be a legally permissible exercise as laid down by this Court in Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar ."
In this view, the Apex Court upset the High Court's order, allowed the appeal, thereby restoring the decision of the first appellate Court in that case. Thus, it is seen, even in a case of specific performance, where the law mandates that the party shall aver his readiness and willingness to perform his part of contract in the plaint, but failed to plead the same, that was permitted to be amended at a later stage. This being the position, in the case on hand, I do not find any difficulty, in allowing the proposed amendment petition, in view of the fact that there is no inconsistency or taking away any admission on which basis the plaintiff might have accrued any right.
25. In view of my conclusion, for the reasons recorded above, though the proposed amendment is a belated one, the amendment aims to supply more materials to the existing plea or in other words, proposed amendment does not change the existing defence or it does not introduce totally a new plea, which are all not properly considered by the first appellate Court whereas the first appellate Court has erroneously, without applying its mind, came to the conclusion that the basic nature of the suit is sought to be changed by the proposed amendment, which are not at all available on the admitted facts. In this view, I am constrained to exercise my jurisdiction, to set aside the order of the first appellate Court, since if the said order is allowed to stand, that will cause much prejudice to the parties, since it prevented defendants to raise more plea, in support of the existing defence.
In the result, the revision is allowed. The order of the Subordinate Judge, Kuzhithurai made in I.A. No. 62 of 2002 in A.S. No. 102 of 2000, dated 28.3.2003 is set aside and the same is allowed, granting permission to the revision petitioners to amend the written statement, as prayed for.