Madras High Court
A.Kumaran vs Letchumana Mudaliar (Died) on 30 November, 2016
Equivalent citations: AIR 2018 (NOC) 80 (MAD.) (MADURAI BENCH)
Author: D.Krishnakumar
Bench: D.Krishnakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.11.2016
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
C.R.P.(MD) (PD)No.1591 of 2010
and
M.P.(MD) No.1 of 2010
1.A.Kumaran : Petitioner
Vs.
1.Letchumana Mudaliar (Died)
2.Shanmugasundaram
3.Sankarasubramaniam
4.Deivanai Ammal
5.S.shanmugasundaram
6.A.Ramu Ammal
7.A.Gomathi
8.Muppidathi
9.A.Vellathurai
10.A.Manimekalai
11.V.Saravanan
12.A.Karthikeyan
13.L.Gomathy
14.L.Sankarn
15.A.Ramalakshmi
16.R.Gomathy
(RR13 to 16 are brought on record as
Lrs of the deceased R1 vide order
dated 20.07.2011 made in M.P.(MD)
No.1 of 2011) : Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order dated
27.07.2010 passed in I.A.No.69 of 2010 in A.S.No.16 of 2010 on the file of
Additional District and Sessions Judge, Fast Track Court No.1, Tirunelveli.
!For Petitioners : Mr.R.Subramanian
^For Respondents : Mr.V.Balaji for RR13 to 16
No Appearance for RR1 to 12
Orders Reserved : 22.11.2016
Orders pronounced : 30.11.2016
:ORDER
The civil revision petition arises against the fair and decretal order dated 27.07.2010 passed in I.A.No.69 of 2010 in A.S.No.16 of 2010 on the file of Additional District and Sessions Judge, Fast Track Court No.1, Tirunelveli.
2.According to the petitioner, the first respondent filed a suit in O.S.No.145 of 1986 on the file of the Sub Court, Tenkasi to declare that the plaintiff is having preferential right so as to purchase 2/3 shares of the defendants 2 to 9 and also for perpetual injunction. The aforesaid suit was dismissed by the trial Court. Against the said judgment and decree passed by the trial Court, the petitioner herein preferred an appeal in A.S.No16 of 2010 before the learned Additional District Judge, Fast Tack Court No.1, Tirunelveli. Along with the said appeal suit, the petitioner herein has filed I.A.No.69 of 2010 to amend the plaint particularly with regard to para 8 and 9 of the plaint, to substitute the relief of the suit. The said application was allowed by the appellate Court, on payment of cost. Aggrieved against the said order, the present civil revision petition has been filed.
3.The learned counsel for the petitioner would submit that the aforesaid application has been filed by the first respondent/appellant in the appeal suit to amend the pleadings in the plaint as well as to amend the relief in the prayer of the said plaint,which cannot be granted at this stage. Further, the learned counsel for the petitioner would object that now the amendment of the prayer in the suit is a time barred one. Therefore, the said prayer in the suit filed by the first respondent/appellant is barred by limitation. Further, according to the petitioner, by allowing the said amendment application, necessarily, there would be change in the nature and character of the suit. Therefore, without considering the above said legal position, the Court below, merely accepted the contention of the first respondent, allowed the said application, which is against the principles of law relied on by this Court.
4.The learned counsel for the respondents would submit that the amendment application filed by the first respondent/appellant is maintainable, even in the appeal suit. The said prayer in the plaint is only an additional prayer to the prayer already sought by the first respondent. Therefore, no prejudice would be caused to the revision petitioner, if the said application is allowed. The said additional prayer can be very well agitated by the revision petitioner before the appellate Court at the time of deciding the appeal. An opportunity shall be given to the fist respondent to agitate the matter on merits, by granting such relief as prayed in the amendment application. Therefore, the trial Court has rightly allowed the application, by observing that there would be no change or alter in the nature and character of the suit, by allowing the said application.
5.Heard the learned counsel for the petitioner and the leaned counsel for the respondents 13 to 16 and perused the materials available on record.
6.The first respondent/appellant has contended that due to inadvertence and bonafide, he has committed mistake and he failed to seek the relief to set aside the sale made by defendants 2 to 6 in favour of the defendant No.1 on 22.10.1986. Further, it is contended in the affidavit that now only, he came to know that the said relief is necessary. The relief sought for in the amendment application in para 8 of the plaint is with regard to the payment of fees for the amendment prayer and in para 9 of the plaint is with regard to substitute the original relief seeking declaration to set aside the sale made by defendants 2 to 6 in favour of the defendant No.1 on 22.10.1986. On perusal of the affidavit filed by the first respondent/appellant, he has not satisfactorily explained the reasons for the belated application filed by him, even though he had the knowledge about the disputed sale deed.
7.The revision petitioner has relied upon the decision of the Apex Court in J.Samuel V. Gattu Mahesh reported in 2012(2) Supreme Court Cases 300, wherein, the Apex Court has held in paras 18, 20, 22 and 23, which read as follows:
?18.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 diligience, the party could not have raised the matter before the commencement of trial.? (Emphasis supplied)
20.A party requesting a relief stemming out of a claim is required to exercise due diligence and it 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.
22.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 and 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.
23.Though the counsel for the appellants have cited many decision, 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 deserving 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. It also helps checking the delays in filing the applications.?
8.In the light of the above said decision, the Apex Court has clearly held that due diligence should be explained. In the present case on hand is concerned, the reasons stated in the affidavit is that due to inadvertence, and bonafide, he failed to seek the relief to set aside the sale made by defendants 2 to 6 in favour of the defendant No.1 on 22.10.1986 and hence, the instant application filed is clearly barred under the Civil Procedure Code.
9.In the decision in (2009) 8 MLJ 907 (SC) ? Revajeetu Builders and Developers V. Narayanaswamy and Sons, the Hon'ble Supreme Court has held as follows:
?67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.
(1)Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2)Whether the application for amendment is bona fide or mala fide? (3)The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money:
(4)Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5)Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6)As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.?
10.The other decision of the Apex Court in L.C.Hanumanthappa V. H.B.Shivakumar reported in 2016(1) Supreme Court Cases 332 the Apex Court held in para 27 to 29, as follows:
?27. In Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) v. Ramesh Chander and Ors., (2010) 14 SCC 596, this Court considered a suit which was originally filed for declaration of ownership of land and for permanent injunction. The suit had been filed on 11th February, 1991. An amendment application was moved under Order VI Rule 17 of the Code of Civil Procedure on 16th December, 2002 for inclusion of the relief of specific performance of contract. This Court in no uncertain terms refused the midstream change made in the suit, and held:- ?In the present case, the factual situation is totally different and the appellants have not filed any suit for specific performance against the first respondent within the period of limitation. In this context, the provision of Article 54 of the Limitation Act is very relevant. The period of limitation prescribed in Article 54 for filing a suit for specific performance is three years from the date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
Here admittedly, no date has been fixed for performance in the agreement for sale entered between the parties in 1976. But definitely by its notice dated 3-2-1991, the first respondent has clearly made its intentions clear about refusing the performance of the agreement and cancelled the agreement.
Even though the prayer for amendment to include the relief of specific performance was made about 11 years after the filing of the suit, and the same was allowed after 12 years of the filing of the suit, such an amendment in the facts of the case cannot relate back to the date of filing of the original plaint, in view of the clear bar under Article 54 of the Limitation Act. Here in this case, the inclusion of the plea of specific performance by way of amendment virtually alters the character of the suit, and its pecuniary jurisdiction had gone up and the plaint had to be transferred to a different court. This Court held in Vishwambhar v. Laxminarayan [(2001) 6 SCC 163] , if as a result of allowing the amendment, the basis of the suit is changed, such amendment even though allowed, cannot relate back to the date of filing the suit to cure the defect of limitation (SCC at pp. 168-69, para
9). Those principles are applicable to the present case.? [at paras 24, 25 and 32]
28. In Prithi Pal Singh and Anr. v. Amrik Singh and Ors., (2013) 9 SCC 576, this Court was concerned with a suit claiming pre-emption under the Punjab Pre-emption Act, 1913. An amendment was sought to the plaint claiming that the plaintiff was entitled to relief as a co-sharer of the suit property. This Court after considering some of its earlier judgments held:-
?In our opinion, there is no merit in the submissions of the learned counsel. A reading of the order passed by this Court shows that the application for amendment filed by Respondent 2 was allowed without any rider/condition. Therefore, it is reasonable to presume that this Court was of the view that the amendment in the plaint would relate back to the date of filing the suit. That apart, the learned Single Judge has independently considered the issue of limitation and rightly concluded that the amended suit was not barred by time.? [at para 11]
29. Applying the law thus laid down by this Court to the facts of this case, two things become clear. First, in the original written statement itself dated 16th May, 1990, the defendant had clearly put the plaintiff on notice that it had denied the plaintiff?s title to the suit property. A reading of an isolated para in the written statement, namely, para 2 by the trial court on the facts of this case has been correctly commented upon adversely by the High Court in the judgment under appeal. The original written statement read as a whole unmistakably indicates that the defendant had not accepted the plaintiff?s title. Secondly, while allowing the amendment, the High Court in its earlier judgment dated 28th March, 2002 had expressly remanded the matter to the trial court, allowing the defendant to raise the plea of limitation. There can be no doubt that on an application of Khatri Hotels Private Limited (supra), the right to sue for declaration of title first arose on the facts of the present case on 16th May, 1990 when the original written statement clearly denied the plaintiff?s title. By 16th May, 1993 therefore a suit based on declaration of title would have become time-
barred. It is clear that the doctrine of relation back would not apply to the facts of this case for the reason that the court which allowed the amendment expressly allowed it subject to the plea of limitation, indicating thereby that there are no special or extraordinary circumstances in the present case to warrant the doctrine of relation back applying so that a legal right that had accrued in favour of the defendant should be taken away. This being so, we find no infirmity in the impugned judgment of the High Court. The present appeal is accordingly dismissed.?
11.Considering the facts and circumstances of the present case along with the said decision, the original prayer of suit is preferential right against the defendant. The suit in O.S.No.145 of 1986 is filed by the first respondent/appellant/plaintiff in the year 1986. Written statement was filed in the year 1987 and additional written statement was filed in the year 1990. Even in the additional written statement, the revision petitioner has specifically denied that the firs respondent/plaintiff therein is not entitled to the relief as prayed in the suit. In spite of that, they have not taken any steps to amend the prayer in the said suit. Therefore, as per the dictum laid down by the Hon'ble Supreme Court in L.C.Hanumanthappa V. H.B.Shivakumar reported in 2016(1) Supreme Court Cases 332, in the present case on hand, the amendment application filed to amend the prayer for declaration to set aside the sale deed is barred by limitation and the application cannot be allowed.
12.Considering the facts and circumstances of the case along with the above said decisions, I am of the view that the appellate Court, without appreciating the contention made by the revision petitioner, has allowed the instant application and hence, the civil revision petition is liable to be allowed.
13.Accordingly, the civil revision petition is allowed and the impugned order dated 27.07.2010 passed in I.A.No.69 of 2010 in A.S.No.16 of 2010 on the file of Additional District and Sessions Judge, Fast Track Court No.1, Tirunelveli, is hereby set aside and I.A.No.69 of 2010 in A.S.No.16 of 2010 is hereby dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The Additional District and Sessions Judge, Fast Track Court No.1, Tirunelveli..