Madras High Court
N.Sankara Iyer vs M.Sankarasugumar on 10 July, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 10.07.2018
CORAM
THE HON'BLE MR. JUSTICE M.V.MURALIDARAN
CRP(MD)No.220 of 2017 and
CMP(MD)No.991 of 2017 and
CMP(MD)No.2553 of 2018
1.N.Sankara Iyer
2.K.N.Sundara Raman
3.M/s.Natesan Agency,
Kallidaikurichi Village,
Represented by its Managing Partner,
Office at Railway Feeder Road,
South Kallidaikurichi Village,
Ambasamudram Taluk,
Tirunelveli District.
4.M/s.Natesan Company, Kallidaikurichi,
Represented by its Managing Partner,
Office at Railway Feeder Road,
South Kallidaikurichi Village,
Ambasamudram Taluk,
Tirunelveli District.
5.M/s.Natesan Transport Company Private Ltd.,
Represented by its Managing Director,
Office at Railway Feeder Road,
South Kallidaikurichi Village,
Ambasamudram Taluk,
Tirunelveli District.
6.Natesan Company (Pollachi),
Represented by its Managing Partner,
Office at Main Road,
Aaval Chinnapalaiyam Gramam,
Pollachi Taluk,
Coimbatore District.
7.Bharatvaj Industries, Chennai,
Represented by its Managing Partner,
Office at Vikram Sarabai Industrial Estate,
Thiruvanmiyur, Chennai ? 41.
8.Manjolai Stores, Kallidaikuruchi
Represented by its Managing Partner,
Office at Railway Feeder Road,
South Kallidaikurichi Village,
Ambasamudram Taluk,
Tirunelveli District. .. Petitioners
Vs.
1.M.Sankarasugumar
2.N.Balasubramanian
3.N.Harihara Krishnan
4.Lakshmi Ramani
5.Savithiri V.Sankara Subramanian
6.Gomathi Viswanathan
7.R.V.Subramanian
8.V.Natesan
9.Tulasi
10.V.Natesan
11.Mahalakshmi
12.M.Balachandar
13.P.M.Ramesh Kumar
14.M/s.G.H.Industries Private Ltd.,
Represented by its Managing Director,
Office at Door No.5, 1st East Street,
Kalachatra Road,
Thiruvanmiyur, Chennai.
15.M/s.Natesan Auto Agencies, Tirunelveli
Represented by its Managing Partner,
Door No.25/1, Swamy Nellaiappar High Road,
Tirunelveli Junction,
Tirunelveli Taluk, Tirunelveli District.
16.Tamil Nadu Gears and Shafts Corporation,
Represented by its Managing Partner,
Office at Anaikaraipatty Village,
Singampunari Taluk,
Ramanathapuram District.
17.Index Gears,
Represented by its Managing Partner,
Office at Industrial Estate,
Nehru Nagar, Kanthan Chavadi,
Thiruvanmiyur, Chennai ? 41.
18.Vishalatchi Auto Mobiles,
Represented by its Managing Partner,
Door No.25/1, Swamy Nellaiappar High Road,
Tirunelveli Junction,
Tirunelveli Taluk, Tirunelveli District. .. Respondents
(The 4 to 7, 13, 17 & 18 respondents are
exparte in lower Court. Hence, notice
may be dispensed)
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India, against the Fair Order and Decreetal Order passed in I.A.No.37 of
2016 in O.S.No.37 of 2014 dated 03.12.2016 on the file of the IV Additional
District Court, Tirunelveli.
!For Petitioners:
Mr.S.Meenakshi Sundaram, Senior counsel
for Mr.N.Ga.Natraj
^For Respondents:
Mr.K.K.Kannan (for R1)
Mr.K.Govindarajan (for R2, R14 & R16)
No Appearance ? (for R3, R8 to R12
and R15)
Exparte before ? (for R4 to R7, R13,
Lower Court R17 and R18)
:ORDER
The learned Senior Counsel appearing on behalf of the Petitioners argued that the 1st Respondent/Plaintiff filed a plaint vide Gl.No.2745 of 2013 before the learned Principal District Court at Tirunelveli for a partition of three items of property. He alleged that his mother had released her right in the said properties by a sham and nominal release deed dated 02.06.1974, and that he had 1/36th share. The Plaint was returned on 05.12.2013 asking the 1st Respondent/Plaintiff to explain how the suit is maintainable in the face of the release deed. It was represented and again returned on 07.03.2014 by the Learned District Judge with the query ?(i) without the relief of declaration of sham and nominal of the release deed dated 02.06.1974, how the suit for partition in respect of the property of the release deed is maintainable
(ii) How the suit related to the properties of release deed dated 02.06.1974 in within limitation....?.
Although the Counsel initially took the stand vide endorsement dated 25.03.2014 that suit is maintainable even without declaration, he subsequently agreed and withdrew his contention and introduced the prayer for declaration. After the service of summons to the Petitioners/Defendants and other Respondents/Defendants appeared through their respective counsel. On the instruction by the Petitioner?s advocate, the petitioner filed I.A.No.42 of 2015 to reject the plaint as the suit is time barred and also on the ground that there is no cause of action for granting the relief. It was filed on 17.02.2015. In a similar manner the 2nd, 15th and 22nd Defendants filed I.A.No.91 of 2015 under Order 7 Rule 11(d) of Civil Procedure Code to reject the plaint raising various grounds. It was filed on 05.06.2015. The counsel for the Petitioners submitted that as far as I.A.No.42 of 2015 filed by the 1st Petitioner concerned, the 1st Respondent/Plaintiff herein filed the counter on 25.04.2015 after getting several adjournments. Thereafter, the Trial court heard the arguments on 26.08.2015 and both the I.A.No.42 of 2015 and I.A.No.91 of 2015 were reserved for orders on 18.09.2015. Since the earlier presiding officer who heard the arguments was transferred, before the subsequent judicial officer the petitioner?s side arguments were heard in both interlocutory applications on 10.10.2015. Thereafter, the 1st Respondent/Plaintiff herein got adjournment for doing his side of arguments on 28.10.2015, 04.12.2015, 10.12.2015, 20.01.2016, 27.01.2016 and 05.02.2016. On 05.02.2016 the 1st Respondent/Plaintiff has completed his arguments in I.A.No.42 of 2015 and I.A.No.91 of 2015. Thereafter, in both the petitions orders were reserved on 29.02.2016. The Senior Counsel for the Petitioners submit that on 11.02.2016 the 1st Respondent/Plaintiff herein filed an application seeking amendment to amend the plaint in such a manner to fill up the lacuna to cure the defect in the plaint which were the main sheet anchor and bone of contention between the parties. The trial court registered the interlocutory application as I.A.No.37 of 2016. Even though the Petitioners strongly opposed for allowing the amendment of the plaint on several grounds including the ground of depriving the accrued right to the contesting parties; the trial court allowed the amendment application. The Senior Counsel appearing for the Petitioners submit that aggrieved by the same the Petitioners have filed the present Civil Revision Petition. The learned Senior Counsel has placed his reliance on the following case laws:
(i) (1976) 4 Supreme Court Cases 320 M/s. Modi Spinning & Weaving Mills Co. Ltd. and another ? Appellants Versus M/s. Ladha Ram & Co. ? Respondents Civil Procedure Code, 1908 ? Order 6 Rule 17 ? Amendment of written statement ? Not allowed when the effect would be to displace the plaintiff?s suit and deprive him of a valuable right already accrued to him ? An entirely different and new case cannot be substituted by this process ? Defendant can place his contention when issues to be framed.
(ii) (2016) 1 Supreme Court Cases 332 I.C. Hanumanthappa (Since Dead) Represented by his Legal Representatives ? Appellant Versus H.B. Shivakumar ? Respondent A. Civil Procedure Code, 1908 ? Or.6 R.17 ? Amendment in plaint ? Further relief added by way of amendment ? If barred by limitation on date of grant of amendment ? Determination of ? Doctrine of relation back i.e. relating back the amendment to the date when the suit was originally filed ?
Applicability of ? Governing principles as to, summarised?.
(iii) (2013) 9 Supreme Court Cases 349 S. Malla Reddy ? Appellant Versus Future Builders Cooperative Housing Society and others ? Respondents With Jai Lakshmi ? Appellant Versus Future Builders Cooperative Housing Society and others ? Respondents And Raghava Reddy and another ? Appellants Versus Future Builders Cooperative Housing Society and others ? Respondents
A. Civil Procedure Code, 1908 ? Or.6 R.17, Or.8 R.9, Or.12 R.1 and S.115 ? Abuse of process of court ? Approbate and reprobate ? Attempt to resile from admission made in original written statement (WS), deprecated ? attempts to substitute original WS with a fresh WS, held, thus rightly thwarted by High Court ? After dismissal of petitions under Or.6 R.16 and Or.8 R.9 for substitution of original WS by fresh WS even by Supreme Court, filing of fresh petition after long lapse of time seeking same relief labelling it under Or.6 R.17 when hearing of the suit had already commenced, held, amounted to abuse of process of court.
(iv) (1998 (11) CTC 108 T.T.K. Pharma Limited, 6, Cathedral Road, Madras ? 600 086. ? Appellant Vs. G. Robapharam, St. AlbenRheinweg, 174 CH 4006, Basel, represented by its Power of Attorney Rajendrakumar ? Respondent Civil Procedure Code 1908, Order 6, Rule 17 ? Amendment of pleadings ? Bonafide Mistake in description of specified goods in respect of which injunction was sought for in suit instituted under Section 29 of Trade and Merchandise Marks Act 1958 ? Amendment sought for to correct such mistake ? Bonafide mistake in pleading can be corrected by seeking amendment ? Order allowing amendment petition on ground that amendment neither changes nature of suit nor adversely affects rights of other party upheld in appeal. (Para
3) Trade and Merchandise Marks Act 1958, Section 29 ? Suit for injunction restraining use same trade Mark on specified goods ? Mistake in description of specified goods ? Such mistake can be corrected by seeking amendment of pleading ? Such amendment of pleading can be allowed a sit dues not change cause of action or nature of suit. (Para-3) Civil Procedure Code 1908, Order 6, Rule 17 ? Amendment of Pleadings ? Suit filed under special enactment and ordinary suits ? whether different criteria or yardstick can be adopted for allowing amendment of pleadings ? No such distinction is permissible ? Same yardstick will apply. (Para 4) Civil Procedure Code 1908, Order 6, Rule 17 ? Amendment of pleadings ? Cardinal Principles to be followed - Amendment of pleading is permissible a any stage provided it does not (i) Change nature of suit, (ii) takes away right accrued in favour of opposite party and (iii) cause substantial prejudice ? as a fundamental rule multiplicity of litigation based on same cause of action is deprecated or discouraged ? If defect can be cured by amendment fresh round of litigation between parties entailing waste of time, money and energy and burden upon judicial institution should be discountenanced. (Para-6)
2.Per contra, the learned Counsel for the 1st Respondent/Plaintiff argued that the Plaintiff has filed the main suit for partition of the suit properties. The vital fact of the property details omitted in the plaint while prepared by the counsel caused the filing of I.A.No.37 of 2016 for the amendment of the plaint. The amendment sought in the plaint is started as follows:
?11.nkYk; thjpapd; jhahh; jpUkjp/fkyhkzp mk;khs; mth;fsJ bgauhy; Vw;gLj;jg;gl;l 02/06/1974 njjpapl;l tpLjiy gj;jpuk; bry;yhJ nkYk; 02/06/1974 njjpapl;l tpLjiy gj;jpuj;jpy; gpuhJ brhj;jpy; jgR 1 kw;Wk; 3Mf fhl;lg;gl;Ls;s brhj;Jf;fs; ml';fhJ/ jgR 2k; brhj;J kl;Lnk tpLjiy gj;jpuj;jpy; Fwpf;fg;gl;Ls;sJ/ thjp nfhhpa[s;s 2k; ghpfhuk; mDkjpf;fg;gLk; NH;epiyapy; 02/06/1974 njjpapl;l tpLjiy gj;jpuk; jhdhfnt brayw;wjhfptpLk; vdpDk; mjdhy; rl;l rpf;fy; vJt[k; Vw;glf;TlhJ vd;w vz;zj;jpy; Kjy; ghpfhuk; nfhug;gl;Ls;sJ/"
The Counsel for the 1st Respondent/Plaintiff submitted that the above proposal for the amendment will not change the subject matter of the suit and the Plaintiff would not setup a new case or new cause of action. Unless the plaint is amended, the real facts could not be come into the light. It was mistakenly stated in the original plaint that as if all the suit properties were included in the release deed dated 02.06.1974 but in fact the 2nd item of the suit property alone mentioned in the release deed. Hence the amendment is judicial needed and necessary to meet ends of Justice. He also argued that it is needless to say that the amendment petition can be filed at any stage in the civil proceedings and it is pertinent to note that the main suit written statements are yet to be filed. Therefore there is no fault in filing the amendment petition. The Counsel for the 1st Respondent/Plaintiff further contended that the trial court has not committed any error in allowing the I.A.No.37 of 2016 by following the procedure contemplated in law and by adhering the settled position of law by the Supreme Court in various occasions.
3.Per contra, the learned Counsel appearing for the Respondent 2, 14 and 16 argued that they are supporting the case of the Petitioners and prays that the Civil Revision Petition has to be allowed. Further the Counsel argued that the 1st Respondent/Plaintiff herein had filed the suit seeking the relief of declaration that the release deed dated 02.06.1974 executed by the 1st Respondent/Plaintiff mother Mrs. Kamalamani Ammal is a sham and nominal document, in consequence seeking for a partition of 1/36th share in the suit schedule properties and for other reliefs. Further the Counsel for these Respondents contended that Para 7 of the plaint contains specific averment that ?since the Release Deed dated 02.06.1974 is sham and nominal, plaintiff?s claim for partition cannot be refused?. By way of amplification, he pointed to Para 11 of the plaint which clearly states that the claim for partition is made consequent to the relief of declaration. He also invited attention to the returns of the Court and endorsement thereon. The same can be seen in document no 2 in the additional type set of papers filed by the Petitioners. Having conceded before this Hon?ble Court on 04.04.2014 that the suit is not maintainable without declaration prayer and having got the benefit of getting the suit numbered by making this concession the plaintiff cannot, after getting the suit numbered, turn around and withdraw the concession. Hence, he argued that the amendment cannot now undo the endorsement made. In view of the fact that the suit is not maintainable, also these respondents have filed an interlocutory application in I.A.No.91 of 2015 under Order VII Rule 11 of Civil Procedure Code for Rejection of Plaint and the 1st Respondent/Plaintiff herein have filed his detailed counter in the said application and both the parties have argued before this Court for several times and the application has been reserved for orders on 05.02.2016 and this Hon?ble Court has posted the said suit on 29.02.2016. In the meantime this petitioner has filed the present application for amendment of Para 11 in the suit only to drag on the proceedings for his ulterior motive.
4.The Counsel for the Respondents 2, 14 and 16 further submitted that even during the numbering of the plaint, this Hon?ble Court has returned the plaint on several dates namely 08.12.2013, 17.12.2013, 07.02.2014, 07.03.2014 and on 04.04.2014 for various compliances. As stated above, Para 11 was deliberately worded to get the suit numbered, to get over the objection of this Hon?ble Court in its order passed under Order VII Rule 10 of CPC.
5.Having made the prayer to avoid rejection of plaint at the earlier stage, they cannot change their stand, now that the suit has been numbered. Further the petitioner now cannot claim that his Advocate has not properly drafted the plaint as stated by him. He further argued that the Trail Court return order dated 07.03.2014 is a judicial order. It is not a clerical return. The matter was placed in open Court when the Learned District Judge refused to accept the pre-existing plaint, the 1st Respondent/Plaintiff had two options, either to accept the order and rectify the plaint or to challenge the same by way of a CMA or CRP. Having made changes to the plaint as per the order dated 07.03.2014, the 1st Respondent/Plaintiff cannot undo the changes once the suit is numbered. Counsel also referred to the Release Deed dated 02.06.1974 and showed the following clause:-
?the Releaser declares that she or any other person claiming through her shall have no right, claim or interest over the properties left behind by late Sri.A.Natesa Iyer more particularly described in the Schedule A and B hereto and any other property not made a mention of in the Schedule A and B herein by omission or otherwise which belonged to the said late Sri. A. Natesa Iyer at the time of his death.?
6.The Counsel further contended that the reading this clause correctly, this Hon?ble Court returned the plaint on 07.03.2014, in exercise of power under Order VII Rule 10 of Civil Procedure Code. These respondents submit that if the 1st Respondent/Plaintiff is allowed to carry out the amendment as sought for in his application, the same would lead to a fundamental change to the cause of action. These respondents submit that the 1st Respondent/Plaintiff cannot take away a fundamental vested right as admitted by them in Para 11 of the plaint by way of an amendment application. In all aspects the amendment application is filed only to drag on the proceedings as the petitioner has come to a conclusion that the Order VII Rule 11 application filed by these Respondents is going to be allowed. The amendment is sought for, as though the suit property covers properties other than those comprised in Release Deed, is also baseless and against the terms of the Release Deed.
7.I heard Mr.S.Meenakshi Sundaram, learned Senior Counsel for Mr.N.Ga.Natraj, learned counsel for the Petitioners, Mr.K.K.Kannan, learned counsel for the 1st respondent and Mr.K.Govindarajan, learned counsel for the respondents 2, 14 and 16 and perused the entire material available on records.
8.The point which is to be considered in the present Civil Revision Petition is whether the amendment application filed by the 1st Respondent/Plaintiff has to be allowed or not.
9.Before going into the merits of the said interim application this court has to taken in to consideration of the following aspects:-
9.1) The 1st Respondent/Plaintiff has initially filed a suit for partition claiming 1/36th share from the suit schedule mentioned properties without any relief for declaration. From the additional typed set of papers filed by the Petitioners we can see that the said plaint has been returned by the District Court on 05.12.2013, 17.12.2013, 07.02.2014, 07.03.2014 and 04.04.2014. Out of these above said returns, the return dated 07.03.2014 has to be seriously noted. The return of plaint by the District Court on 07.03.2014 and the compliances made by the plaintiff for the said relief are very crucial. The return dated 07.03.2014 and the compliance made by the plaintiff is enumerated hereunder:
?Returned : 07.03.2014:
This petition is again returned with the following defects:
1) Without the relief of declaration and nominal of the Release Deed Dt.02.06.1974 how the suit for partition in respect of property of the release deed is maintainable?
2) How the suit related properties of release deed Dt.02.06.1974 is within limitation?
3) When particular registered document is alleged to be a sham and nominal, whether original or certified copy is to be filed.
Represented:
This suit is for partition if the court comes to the conclusion of after hearing both sides and evidence at the time of trial that the so called release deed true and valid than those properties are not liable for partition suit can be decide in respect of other properties. If the court comes to the conclusion that the properties are joint family properties that it can be decided on merits. Also the release deed have not been executed by the plaintiff and not binding on him. More over the defendants can admitted in prior proceeding that they are sham and nominal and hence no declaratory relief is to be prayed for in the suit?..?
The said compliances were made by the plaintiff on 25.03.2014. Thereafter before numbering the said plaint was called in the open court on 04.04.2014 and the same was returned on a request made by the counsel for plaintiff for rectification. Thereafter the declaration prayer has been sought for with amendments in the plaint and it was represented on 08.04.2014 and only there after the said suit got numbered.
9.2 ) The present IA No.37/2016 has been filed for the following amendment which are as follows:
gpuhjpy; jpUj;jk; bra;ag;gl ntz;oa tpgu';fs;
gpuhjpd; 10k; gf;fj;jpy; bjhl';Fk; gj;jp vz;/11y; gpd;tUkhW bghUz;ikfs; nrh;f;fg;glntz;Lk;
"11/nkYk; thjpapd; jhahh; jpUkjp/fkyhkzp mk;khs; mth;fsJ bgauhy; Vw;gLj;jg;gl;l 02/06/1974 njjpapl;l tpLjiy gj;jpuk; bry;yhJ/ nkYk; 02/06/1974 njjpapl;l tpLjiy gj;jpuj;jpy; gpuhJ brhj;jpy; jgR 1 kw;Wk; 3 Mf fhl;lg;gl;Ls;s brhj;Jf;fs; ml';fhJ/ jgR 2k; brhj;J kl;Lnk tpLjiy gj;jpuj;jpy; Fwpf;fg;gl;Ls;sJ/ thjp nfhhpa[s;s 2k; ghpfhuk; mDkjpf;fg;gLk; NH;epiyapy; 02/06/1974 njjpapl;l tpLjiy gj;jpuk; jhdhfnt brayw;wjhfptpLk;/ vdpDk; mjdhy; rl;l rpf;fy;fs; vJt[k; Vw;glf;TlhJ vd;w vz;zj;jpy; Kjy; ghpfhuk; nfhug;gl;Ls;sJ/"
The original Para 11 of the plaint is read as follows:
"vdnt thjpahy; thjpapd; jhahh; jpUkjp/fkyhkzp mk;khs; mth;fsplk; 2/6/1974 njjpapy; vGjp th';fpa tpLjiy gj;jpuk; sham and nominal not acted upon vd;w tpsk;g[if cj;jut[ bgwt[k; mjd; K:yk; gpuhJ g!py; brhj;Jf;fspy; jdf;Fhpa 36y; xU g';F ghfj;ij gphpj;J. Mj;Jf;fl;o jdp RthjPdk; bgwt[k;. mJtiu cs;s kj;jpa fhy tUk;goia bgWtjw;fhft[k; ,t;tHf;F jhf;fy; bra;ag;gLfpwJ/" Normally a pre-trail amendment will be liberally allowed. However, there are exceptions. An amendment cannot be made to take away the effect of an admission. Also, an amendment cannot be made where it is not done in good faith. The present amendment which has been filed by the 1st Respondent/Plaintiff is solely to retract the changes the 1st Respondent/Plaintiff made, for the purpose of numbering the suit. Having got the suit numbered, he now wants to retract the amendments. Moreover, notices were issued to the defendants and they have made application for rejection on the basis of the plaint. When the plaint rejection application was awaiting passing orders, this amendment application was made. This is not done in good faith and it solely done to meet the objection of the Defendants in the suit.
10.This court has carefully considered the application filed by the 1st Respondent/Plaintiff. Normally the amendment of pleadings is permissible at any stage provided it does not (i) change the nature of the suit (ii) takes away the right accrued in favour of opposite party and (iii) cause substantial prejudice. From a reading of the plaint, this Court infer that the plaintiff?s mother had executed Release Deed dated 02.06.1974 and further she died in the year 2009 and during her lifetime she never questioned the said release deed. Further this present suit has been filed in the year 2013 and numbered in the year 2014 after a lapse of 4 years after death of the Plaintiff?s mother. Even during numbering the plaint, the District Court has raised various queries and exercised its power under Order VII Rule 10 and returned the plaint. Only after making necessary amendment to the plaint with a relief of declaration, declaring that the release deed dated 02.06.1974 as sham and nominal document and not acted upon and based upon which the second prayer for partition has been sought for by the 1st Respondent/Plaintiff. This amendment has been made in various paragraphs of the plaint, especially in Para 11 of the plaint. Once the said amendment has been made by the 1st Respondent/Plaintiff and suit summons were served on the Defendants and accrued rights has been created for the defendants to raise all their objections based on the plaint, the same shall not be taken away by way of further amendment.
11.Now the 1st Respondent/Plaintiff wanted to withdraw the entire Para 11 of the plaint and insert the new amendment which he has sought for. A careful reading of the said amendment clearly shows the 1st Respondent/Plaintiff wants to undo the change made which was done to get the suit numbered. The plaintiff cannot recklessly make and withdraw allegations from time to time. The nature of the suit will completely change. The defendants are also clearly prejudiced. The Trial Court has failed to consider all these aspects and has simply allowed the amendment application taking a lenient view. The Trial Court failed to note that only the bonafide mistake in pleading can be corrected by seeking amendment, but the present amendment sought for lacks bonafides.
12.Accordingly, this present Civil Revision Petition is allowed and the fair and decreetal order dated 03.12.2016 made in I.A.No.37 of 2016 in O.S.No.37 of 2014 passed by the learned IV Additional District Judge, Tirunelveli is hereby set aside. No costs. Consequently, connected miscellaneous petitions are closed.
To The IV Additional District Court, Tirunelveli.
.