Madras High Court
Muthuvel vs Ponnusamy on 15 February, 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2011 CORAM THE HONOURABLE MR. JUSTICE K.VENKATARAMAN C.R.P.(PD) No.482 of 2010 and M.P.No.1 of 2010 Muthuvel ... Petitioner Vs. 1.Ponnusamy 2.Dhandapani 3.Gopi ... Respondents Civil Revision Petition filed under Article 227 of Constitution of India against the fair and decreetal orders dated 17.12.2009 passed in I.A.No.773 of 2009 in O.S.No.109 of 2007 on the file of the District Munsif Court, Krishnagiri. For Petitioner : Mr.P.Mani For Respondents : Mr.V.Nicholas O R D E R
The present revision is directed against the order of the learned District Munsif, Krishnagiri dated 17.12.2009 made in I.A.No.773 of 2009 in O.S.No.109 of 2007.
2. The plaintiff in the aforesaid suit is the petitioner herein and the defendants thereon are the respondents herein.
3. The petitioner has filed the above referred suit against the respondents for declaration of title over the suit property and for permanent injunction restraining the respondents from interfering with his peaceful possession and enjoyment of the suit property. In the said suit, the petitioner has taken out an application in I.A.No.773 of 2009 for amendment of pleadings. The said application was dismissed by the Court below and the present revision is directed against the said order.
4. The petitioner who has sought for permanent injunction, is now seeking, by way of amendment, an alternative prayer for possession.
5. Learned counsel for the petitioner contended that since the respondents in their evidence has stated that they are in possession of the property, the petitioner was constrained to file the application for amendment seeking alternative prayer for possession. That apart, learned counsel has contended that even in the plaint it has been pleaded by the petitioner that the respondents are claiming possession over the suit property. In such circumstances, according to the learned counsel for the petitioner, the petitioner was constrained to file the application for amendment. Learned counsel has further added that if there is no change of cause of action and no new sets of facts have been introduced by way of an amendment, the amendment has to be allowed. Unfortunately, the Court below has dismissed the application which requires interference by this Court.
6. Learned counsel for the petitioner has placed reliance on the following judgments Vadivel v. Natarajan and others (2002) 2 MLJ 81, Natesan and another v. Govindasami and another (1988) 2 LW 397 and Ganpat Singh v. Sher Bahadur Singh and others AIR 1978 Allahabad 66.
7. On the other hand, learned counsel for the respondents contended that the petitioner cannot seek to amend the plaint after the trial commenced. Learned counsel has relied on the amendment introduced in Order VI Rule XVII of the Civil Procedure Code. By taking me to the said provision, the learned counsel for the respondents submitted that the petitioner has to plead that in spite of due diligence, he could not raise the plea in the original plaint and hence, he has come forward with an application for amendment seeking a new relief.
8. I have heard the learned counsel for the petitioner and the learned counsel for the respondents.
9. Before adverting to the rival contentions, it would be more appropriate to extract the averment made in the affidavit filed by the petitioner in support of the petition under Order VI Rule XVII. The reason that has been set out in the affidavit, more so in paragraph 4 is extracted here under:
"4. In view of the contention of the defendants that they are in possession of the suit property. I am now advised by my counsel to seek the relief of possession by way of abundant caution and by way of alternative relief. The proposed amendment of plaint does not change the cause of action. Nor it needs any further evidence. If amendment of the plaint is not allowed, I will be put to great loss and hardship."
10. It is stated by the petitioner in his affidavit that in view of the contention of the respondents that they are in possession of the suit property, on the advise of the counsel, he has filed the application for amendment seeking the relief of possession by way of abundant caution. I am unable to accept such contention for the reason that even in the plaint the petitioner has pleaded that the respondents are claiming possession over the suit property. That apart, even in the written statement, the respondents have made very clear that they are in possession of the suit property. When that is so, it cannot be said that the petitioner came to know that the respondents are claiming possession over the suit property for the first time, before the application for amendment was filed. The petitioner who was aware that the respondents are claiming possession over the suit property, was not thought it fit to file an application for amendment immediately after filing the written statement. The written statement was filed in the year 2007 and the present application for amendment was filed on 09.10.2009, that too, after the trial has commenced.
11. That apart, Order VI Rule XVII of the Civil Procedure Code was amended with effect from 01.07.2002. As per the amendment, if a party desires to file an application for amendment of the pleadings under Order VI Rule XVII has to satisfy that in spite of due diligence, he could not raise the matter before the commencement of trial. It would be useful to extract Order VI Rule XVII of the Civil Procedure Code and the same is extracted here 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."
12. In the case on hand, as stated already, it is not the case of the petitioner that he came to know that the respondents are claiming possession over the suit property just prior to the filing of the application or after commencement of the trial. The petitioner who knows that the respondents are claiming possession over the suit property has not chosen to file an application for amendment at least immediately after the written statement made in the year 2007 or at least before the commencement of the trial. In the case of hand, the trial has started and now it is at the stage of arguments. At this stage, the petitioner has come up with the application to amend the plaint seeking incorporation of a new prayer for possession.
13. The Honourable Apex Court had an occasion to consider the matter in issue in Rajkumar Gurawara (dead) through LRs. v. S.K.Sarwagi & Co. Pvt. Ltd. & another 2008 (5) CTC 253, wherein, the Honourable Apex Court has held as follows:
"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."
14. Again in Vidyabai and others v. Padmalatha and another (2009) 2 SCC 409, the Honourable Apex Court has held as follows:
"Or.6 R.17 CPC is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to Order 6 Rule 17 CPC is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. From the order passed by the trial Judge, it is evident that the respondents had not been able to fulfil the said precondition."
15. This Court had an occasion to consider the matter in issue in S.Rajendran v. K.Kanniah and 6 others 2010 (1) CTC 837 and held as follows:
"14................ It is true that the Court has ample power to entertain a Petition seeking amendment if it comes to a decision that the amendment is necessary to decide the real disputes arisen between the parties. But such a power given to the Court is circumscribed by the Proviso found under the aforesaid provision of law. The embargo found under the Proviso limits the large power found in the main Proviso under Order 6, Rule 17, C.P.C. Unless the Court records the existence of the contingency provided under the Proviso under Order 6, Rule 17, C.P.C., the Petition for amendment after the commencement of trial cannot be entertained as per the aforesaid ratio laid down by the Honourable Supreme Court."
16. Thus, the Honourable Apex Court as well as this Court have held that at any stage of the proceedings, parties are free to alter or amend the pleadings in order to determine the real question in controversy. However, after the amendment if the parties to the proceedings able to satisfy that in spite of due diligence they 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.
17. In the case on hand, as pointed out earlier, the petitioner knows very well that the respondents are in possession over the suit property, but in spite of that he has not taken any due diligent steps for amending the plaint.
18. Learned counsel for the petitioner relied on the decisions in Vadivel v. Natarajan and others (2002) 2 MLJ 81, Natesan and another v. Govindasami and another (1988) 2 LW 397 and Ganpat Singh v. Sher Bahadur Singh and others AIR 1978 Allahabad 66. In those decisions, the parties were allowed to amend the pleadings claiming possession and it has been held that such amendment will not change the character of the suit. That apart, it has been held that amendment can be allowed at any stage even at the appellate stage. However, in those decisions, the amendment made in Order VI Rule XVII of the Civil Procedure Code was not considered at all. That apart, in view of the decision of the Honourable Apex Court cited above, which is the law of the land, this Court is constrained to see whether the petitioner has pleaded that in spite of due diligence, he could not raise the matter which he is now trying to raise, before the commencement of the trial. As already held, the petitioner was aware that the respondents were claiming that they are in possession over the suit property.
19. In view of the above facts and circumstances of the case and in view of the decisions of the Honourable Apex Court referred to above, I am inclined to hold that the learned District Munsif, Krishnagiri, has rightly dismissed the application preferred by the petitioner.
20. In fine, the Civil Revision Petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
gm To The District Munsif Court, Krishnagiri