Madras High Court
Sundarrajan vs Rathinasigamani on 17 August, 2022
Author: B.Pugalendhi
Bench: B.Pugalendhi
C.R.P PD(MD)No.2374 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 17.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
C.R.P(MD)No.2374 of 2016 and
CMP(MD) No.11197 of 2016
Sundarrajan ... Petitioner
Vs
1.Rathinasigamani
2.Nataraja Boopathi
3.Karunagaran
4.Abdul Kadhar Beevi
5.Thirunavukkarasu ... Respondents
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decreetal order dated
29.09.2016 passed in I.A.No.274 of 2016 in O.S.No.101 of 2010, on the
file of the District Munsif Court, Sathankulam.
For Petitioner : Mr.M.P.Senthil
For R1 to R3 & R5 : Mr.M.C.Swamy
For R4 : No appearance
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https://www.mhc.tn.gov.in/judis
C.R.P PD(MD)No.2374 of 2016
ORDER
This Civil Revision Petition is filed as against the fair and decreetal order passed by the learned District Munsif, Sathankulam in I.A.No.274 of 2016 in O.S.No.101 of 2010, dated 29.09.2016.
2.The petitioner is the plaintiff in O.S.No.101 of 2010 pending on the file of the District Munsif Court, Sathankulam. The above suit was filed for the relief of declaration and for permanent injunction with regard to the suit schedule properties. Pending the suit, the respondents/defendants filed an application for appointment of Advocate Commissioner in I.A.No.338 of 2012 and the same was allowed by the trial Court. Advocate Commissioner has also filed his report on 13.07.2016. After filing of the report by the Advocate Commissioner, the petitioner/plaintiff has filed an application, in I.A.No.274 of 2016, under Order VI Rule 17 of Civil Procedure Code, to amend the plaint and the same was dismissed by the trial Court. Aggrieved over the same, the present Civil Revision Petition is filed.
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3.The learned counsel appearing for the petitioner submits that after filing of the report by the Advocate Commissioner on 13.07.2016, that a road is passing through in between the suit schedule properties, he came to know the exact survey number of the road passing through, in between the suit schedule properties. Hence, four boundaries of the plaint schedule properties are to be mentioned and hence amendment of the plaint is necessary. Moreover, according to the petitioner/plaintiff, the amendment of the plaint cannot change the nature and character of the suit and even it will curtail the multiplicity of proceedings. However, the trial Court has dismissed the application on the ground that the application is filed after commencement of the trial. The learned counsel appearing for the petitioner has also relied upon the Judgment of the Honourable Supreme Court, in the case of Abdul Rehman & another vas. Mohd. Ruldu and others, reported in 2012 (5) CTC 803 and requests this Court to impose some cost, which will be paid by the petitioner to the defendants.
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4.The learned counsel appearing for the respondents 1 to 3 & 5 submits that the suit was filed in the year 2010 and after completion of plaintiff side evidence, the application has been filed by the petitioner/plaintiff belatedly, with an intention to drag on the proceedings further. He further submits that the theory of due diligence has not been proved by the plaintiff. In order to substantiate his contentions, the learned counsel has relied upon the following judgments and the relevant portions from the Judgments have also been extracted as under:-
i. J.Samuel and others Vs Gattu Mahesh and others, reported in (2012) 3 MLJ 159 (SC), wherein it was held as follows:-
“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.
16.The claim of typographical error/mistake is baseless and cannot be accepted. In fact, had the person who 4/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016 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 appellant 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 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserveing cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 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.” 5/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016 ii. Pandit Malhari Mahale vas. Monika Pnadit Mahale and others, reported in (2020) 11 Supreme Court Cases, 549), wherein it was held as follows:-
“7.In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai V Padmalatha, this Court observed in para 19 as under:
19. It is the primal duty of the court to decide as to whether such as amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged threin, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.” 6/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016
8.There being no finding by the Court hat the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed.
5.This Court considered the rival submissions made and also perused the materials placed on record.
6.The suit in O.S.No.101 of 2010 was filed by the petitioner/plaintiff, for declaration and for permanent injunction. On completion of plaintiff side evidence and during the cross examination, the defendants have raised certain objections that across the suit schedule properties, a road is passing through. The defendants have also filed an application for appointment of Advocate Commissioner and based on the order of the trial Court in I.A.No.338 of 2012, the Advocate 7/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016 Commissioner has also filed his report, identifying the properties with the help of the Surveyor and found that the road is passing through in between the suit schedule properties. The petitioner claims that only on identification of the properties by the Advocate Commissioner, he came to know the fact that the road is passing through in between the suit schedule properties. Therefore, he filed an application for amendment of the plaint immediately. However, it was dismissed by the trial Court on the ground that the application has been filed after commencement of the trial. The learned counsel appearing for the petitioner by relying upon the Judgment of the Honourable Supreme Court, in the case of Abdul Rehman & another vas. Mohd. Ruldu and others, reported in 2012 (5) CTC 803 requests for allowing the application with some cost, which will be paid by the petitioner to the respondents/defendants, within a period stipulated by this Court. The relevant portion from the above Judgment is as under:-
“8.The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by 8/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016 Amendment Act 22 of 2002 but with an added Proviso to prevent Application for amendment being 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 above Proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if Application is filed after commencement of trial, it has to be show that in spite of due diligence, it could not have been sought earlier. The object of the Rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have 9/12 https://www.mhc.tn.gov.in/judis C.R.P PD(MD)No.2374 of 2016 been reiterated by this Court in J.Samuel and others Vs Gattu Mahesh and others, 2012 (2) CTC 94 (SC) “2012 (2) SCC 300; and Rameshkumar Agarwal V.Rajmala Exports Pvt Ltd and others, 2012 (2) MWN (Civil) 219 (SC) : 2012 (5) SCC 337.”
7.Considering the submission made by the learned counsel for the petitioner/plaintiff and in the light of the above judgment, this Court is inclined to allow this Civil Revision Petition with a cost of Rs.15,000/- payable by the petitioner/plaintiff to the respondents/ defendants, within a period of two weeks from the date of receipt of a copy of this Order. Considering the fact that the suit is of the year 2010, there shall be a direction to the trial Court to dispose of the suit as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order, after making necessary amendment in the plaint.10/12
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8.With the above direction, this Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed.
17.08.2022 Index : Yes / No. Internet : Yes / No. vrn To The District Munsif Court, Sathankulam.
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vrn C.R.P(MD)No.2374 of 2016 17.08.2022 12/12 https://www.mhc.tn.gov.in/judis