Madras High Court
Sri Ramakrishna Dhabovanam vs Kasi Durai on 29 August, 2005
Author: R. Banumathi
Bench: R. Banumathi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :: 29..08..2005 CORAM :: THE HONOURABLE MRS. JUSTICE R. BANUMATHI C.R.P.No.1735 of 2003 and C.M.P.No.12768 of 2003 Sri Ramakrishna Dhabovanam Thiruparaithurai through its President Srimath Nithyananda Swami Through his Agent Swami Sridivyananda Bharathwaj Ashramam Cheranmahadevi, Thirunelveli District. ......Petitioner - Vs - Kasi Durai, S/o.Yacob Nadar, 140, North Street, Thisayanvilai, Radhapuram Taluk, Tirunelveli District. ......Respondent Civil Revision Petition filed under Section 115 C.P.C against the order dated 06.06.2003 passed by the learned Principal District Munsif, Valliyur in I.A.No.562 of 2003 in O.S.No.253 of 1996, as stated therein. ! For Petitioner :: Mr. P. Senthur Pandian ^ For Respondent :: Mr. K. Srinivasan - - - - - - - :O R D E R
This Revision Petition is directed against the order of dismissal of the Amendment Application dated 06.06.2003 by the learned Principal District Munsif, Valliyur made in I.A.No.562 of 2003 in O.S.No.253 of 1996. The Plaintiff
- Sri Ramakrishna Dhabovanam is the Revision Petitioner.
2. O.S.No.253 of 1996:- The Plaintiff is a Trust having its Head Office at Thiruparai Thurai. The Plaintiff Trust runs several Educational Institutions for the benefit of poor people. In Disayanvilai Village, the Plaintiff Trust had started an Educational Institution in 1983. After upgradation of the School as a High School, the School required open space for Play Ground. For the purpose of Play Ground, Western Side of the Property was purchased by the Plaintiff Trust by the Sale Deed dated 22.12.1994. The Defendant owns a small piece of land on the West of the Plaint Schedule and on the South Western Corner of the land there is tomb. Since the School Play Ground is a sprawling open space either the Children enter into the land or the Cattle from the Western Side enter into the School area, causing interference to the school children. The Land was surveyed on 31.12.1994. At that time, the Defendant made a strange claim of right over the Suit Property and threatened to interfere with the possession of the Suit Property by the Plaintiff Trust. Hence, the Plaintiff has filed the Suit for Permanent Injunction restraining the Defendant from in any way interfering with the Plaintiff's possession and enjoyment of the Suit Property.
3. Denying the allegations in the Plaint, the Defendant has filed the Written Statement interalia contending that the Plaint Schedule property belongs to the Defendant. In the Suit Property, the Defendant's Grandfather has been buried and a cemetry has been put up. Previously Survey Number of the Plaint Schedule Property is S.No.327 - 1.15 acres which has been divided into Sub Divisions 327/5N consisting of 62 cents which belonged to Yesuvadian and Asirvatham. The said Asirvatham had 25 cents on the Eastern portion and Yesuvadian had 37 cents on the Western portion. The Defendant claims right in the Suit Property through Yesuvadian. Recognising the right and title of Heirs of Yesuvadian, in the said 37 cents, Joint Patta had also been issued. The Plaintiff School has no right over the Suit Property and hence not entitled for the Permanent Injunction.
4. Trial commenced. Parties adduced evidence. The case was posted for Judgment on 04.04.2003. The case was suo motu reopened and the Court is said to have observed in the Open Court that the Description of the Plaint Schedule Property and that of the Rough Plan do not tally. The case was posted for Clarification on 10.04.2003. Later, on 16.04.2003, I.A.No.562 of 2003 - Amendment Application was filed. According to the Plaintiff, in the Rough Plan produced along with the Plaint, the Western Boundary and Southern Boundary have been wrongly typed and in the Plaint Schedule Property, the Description of the Boundaries has been wrongly described. The mistake is not wilful. The proposed Amendment would not in any way change the cause of action or the subject matter of the dispute and the Plaintiff's School prayed for Amendment of the Boundary description both in the Plaint Schedule and also in the Rough Plan filed along with the Plaint.
5. Filing elaborate Counter Statement, the Defendant resisted the Application. Pointing out the stage in which the Amendment application was filed, the Maintainability of the Application was also challenged. According to the Defendant, the Suit was filed by President - Srimath Nithyanandaswami by his Power Agent - Swami Sridivyananda. While so, the Affidavit in I.A.No.562 of 2003 has been filed by P.W.2 - Paulsamy, who has got nothing to do with the Suit and the Application is not maintainable. Earlier, the Plaintiff School has filed I.A.No.419 of 2003 to reopen the case on the ground that certain facts and law are omitted to be mentioned. On that Application, case was also re-opened. Even at that stage, the Amendment Application was not filed. The Amendment Application, which has been filed belatedly is not maintainable.
6. Learned District Munsif dismissed the Amendment Application interalia finding :
that the Plaintiff School has not exercised due diligence in filing the Application ; Had the Plaintiff been vigilant, the Plaintiff would have raised the Amendment before the commencement of the Trial; after the Code of Civil Procedure (Amendment) Act 2002, the Amendment Application filed after the commencement of the Trial is not maintainable; The Application filed by P.W.2 - a Member of the Welfare Committee is not maintainable.
7. Aggrieved over the order of dismissal of the Amendment Application, the Plaintiff School has preferred this Civil Revision Petition. Drawing the attention of the Court to the boundary description, learned counsel for the Revision Petitioner / Plaintiff School has submitted that the Description of Boundaries had been stated mistakenly and the mistake was not wanton. Submitting that by the change of the Boundaries, the description of the property is not changed. Learned counsel for the Revision Petitioner / Plaintiff School assailed the Impugned Order contending that the lower Court has not properly appreciated the purport of the scope of the Amendment. Learned counsel for the Revision Petitioner has further submitted that the Suit was filed in Sub-Court, Tirunelveli in O.S.No.10 of 1995, which was later transferred to District Munsif Court, Valliyoor and re-numbered as O.S.No.253 of 1996. Either the counsel at Tirunelveli or the Counsel at Valliyoor could detect the mistake earlier and only when the Court pointed out the variation, the Plaintiff came to know about the mistake crept in. Submitting that P.W.2 is a Member of the Welfare Committee, learned counsel for the Revision Petitioner has submitted that due to non-availability of the President at the time, the Amendment Application was filed through P.W.2 and the Application does not suffer from any impropriety and the Trial Court erred in dismissing the Application as not maintainable.
8. Raising serious objection for the Amendment Application, learned counsel for the Respondent / Defendant has submitted that the Amendment Application has been filed at the stage when the case was posted for Judgment mainly to delay the conclusion of the Trial. Pointing out the filing of the Application in I.A.No.561 of 2003 - for reopening of the case along with the Amendment Application - I.A.No.562 of 2003, learned counsel for the Respondent / Defendant has contended that no Revision Petition has been filed against the order in I.A.No.561 of 2003, which has been disposed of by the common order and the Revision Preferred only against the order in I.A.No.562 of 2003 is not maintainable. Attacking the maintainability of the Application, learned counsel for the Respondent / Defendant reiterated that the Amendment application was filed by P.W.2-Palsamy, who is not competent to file the Affidavit. Learned counsel for the Respondent further submitted that the Court below has rightly dismissed the Amendment Application and the Impugned Order does not suffer from any jurisdictional error warranting interference.
9. Upon consideration of the contentions of both parties, Impugned Order and the proposed Amendment and other materials on record, the following points arise for consideration in this Civil Revision Petition:-
i.Whether the proposed Amendment changes the Description of the Property and whether it alters the case?
ii.Whether the lower Court was right in observing that the Amendment Application filed after the commencement of the Trial cannot be allowed? iii.Whether the Impugned Order dismissing the Amendment Application suffers from serious error warranting interference?
10. It is to be mainly considered whether the nature of the Amendment introduces a new case changing the Description of the Property and the nature of the Suit. In the Plaint Schedule, the Suit Property is described as :
bjw;F : Mj;jp. Rg;igah. Rhkfhj;jhd; ,th;fs; epyk;/ fpHf;F : VRtoahd; ehlhh; fy;yiw epyk; brz;L/ 8/ nkw;F : gs;spf;Tl epyk;. rhkfhj;jhd; epyk;
tlf;F : rh;nt 327 eph;(1) ePhpy; VRtoahd; ehlhh; kf;fs; tifawh epyk;/ ,jw;Fs;gl;l brz;L 29?k; g{wh By the proposed Amendment, the above Boundary Description is sought to be changed as "...Mj;jp Rg;igah. rhkfhj;jhs; ,th;fs; epyj;jpw;F (bjw;F) VRtoahd; ehlhh; fy;yiw epyk; brz;L 8f;F (fpHf;F) gs;spTl epyk; rhkfhj;jhs; epyj;jpw;F (nkw;F) rh;nt 327 eph;(1) ePhpy; VRtoahd; ehlhh; kf;fs; tifawh epyj;jpw;F (tlf;F)..."
11.In the Rough Plan filed along with the Plaint -
Western Boundary is Defendant Kasidurai's stated as .....Land Southern Boundary is Land of Yesudian and stated as ..... others
The above Boundaries in the Rough Plan is sought to be amended as :
(1) In the Western Side Add Jesuvadiyan Tomb land 8 cents and remove Defendant Kasidurai land;
(2) In the Southern Side in the Rough Plan remove land of Yesuvadian and others and add Sy.No.327/1 Yesuvadian Nadar sons Vagairs.
12. The Proposed Amendment cannot be said to be introducing a new case. In the Rough Plan filed along with the Plaint, the Northern Boundary is correctly stated as the land of "Authi and others". Similarly, the Eastern Boundary is also correctly stated as "Plaintiff School Buildings". Even in the Plaint averments, it is alleged that the Defendant owns a small bit of land on the West of Plaint Schedule land and on the South Western corner of the land there is a tomb. The averments in Paragraph 8 reads "....The Defendant owns a small bit of land on the West of the Plaint Schedule land and on the South Western corner of the land there is tomb. Since it is a sprawling open space the Children enter those lands and cattle from that side enter into school area...." Thus, the existence of the portion of the Defendant's property on the Western side is clearly alleged in the Plaint averment.
13. The Plaintiff school bases its claim on the Sale Deed dated 22.12.1994. In the Sale Deed, the boundary of the property purchased is described as :
"....kj;jpapy; cs;s br 29f;F vy;iy Mj;jp. Rg;igah. rhkfhj;jhd; ,th;fs; epyj;Jf;F (bj) VRtoahd;ehlhh; fy;yiw epyk; br 8f;F (rp) gs;spf;Tl epyj;Jf;Fk;. rhkfhj;jhd; epyj;Jf;Fk; (nk) rh;nt 327 ePh; (1) ePhpy; VRtoahd; ehlhh; kf;fs; tifawh epyj;Jf;Fk; (t) ,jw;Fs;gl;l br 29k; ...."
Thus, in the Sale Deed, the Northern Boundary is described as "Mj;jp. Rg;igah. rhkfhj;jhd; ,th;fs; epyj;Jf;F bjw;F ; gs;spf;Tl epyj;Jf;Fk;. rhkfhj;jhd; epyj;Jf;Fk; nkw;F/ While describing the Boundaries in the Plaint Schedule, the same has been mistakenly stated as bjw;F : Mj;jp. Rg;igah. Rhkfhj;jhd; ,th;fs; epyk;/ fpHf;F : Vrtoahd; ehlhh; fy;yiw epyk; brz;L/ 8 Obviously the above boundary recitals stated in the Plaint is only an innocuous mistake though not a typographical mistake.
14. The proposed Amendment Amending the Boundaries is well supported by the document of Title. It is relevant to note that in the Written Statement, there had been no specific denial of boundaries. No specific pleading has been raised regarding the boundaries or the description of the property. In Paragraph 2 of the Written Statement, there is only a general denial of the Plaint allegations stating that "...The Suit has been filed by the Plaintiff giving false information and figures...." The Defendant has not specifically raised the objection regarding the Boundaries. The mistake in the Description of the Boundaries is only inadvertent. While the parties went on Trial, they have clearly understood the disputed property - 29 cents within the stated Boundaries. The proposed Amendment does not in any way changes the nature of the Suit nor the cause of action nor alters the Suit Property.
15. The Affidavit in the Amendment Application I.A.No.562 of 2003 was filed by P.W.2 - Palsamy, who is said to be a Member of the School Management Committee. The Suit was filed by the Plaintiff - Sri Ramakrishna Dhabovanam by its President Srimath Nithyanandaswami by his Power Agent Swami Sridivyananda. The representation of the Plaintiff through his Power Agent was permitted by the Court in the Application filed under Order III Rule 1 C.P.C. In the Injunction Application I.A.No.554 of 1996 and the Commission Petition I.A.No.556 of 1996 also, the Power of Agent has filed the Affidavit. Earlier, once when the Suit is said to have been dismissed for Default on 13.08.1996, a Petition was filed to restore the Suit along with a Petition under Section 5 of the Limitation Act. Those Applications were also filed by the Power Agent. It is stated that at that time when the Amendment Application was filed, neither the Plaintiff nor the Power Agent available. Hence, P.W.2 - Paul Samy, who is said to be a Member of the School Management committee has filed the Application. The finding of the Trial Court that P.W.2 is not competent to file the Amendment Application cannot be sustained. Considering the exigency of the situation and in view of the non-availability of the Plaintiff and its Power Agent, the Affidavit for the Amendment Application filed through a Member of the Management Committee cannot be said to be improper.
16. The Court should be liberal in allowing the Applications for Amendment of the Pleadings. The Amendment Application cannot be disallowed on the ground of technicalities. Liberal approach should be the general rule particularly in cases where the inadvertent mistake is sought to be corrected, by filing the Amendment Application. This is all the more so where the Plaintiff Trust, which is said to be a Welfare Institution in running the School has filed the Application through its Member of the School Management Committee. The Amendment should not have been disallowed on the hyper technical grounds that P.W.2-Palsamy was not competent to file the Amendment Application.
17. The Lower Court has dismissed the Amendment Application mainly on the ground that after Code of Civil Procedure (Amendment) Act, 2002, the Amendment Application cannot be filed after the commencement of the Trial. By perusal of the Counter Statement and other materials on record, it is seen that after the conclusion of the Trial and after hearing the arguments, the Suit was posted on 04.04.2003 for Judgment. On 04.04.2003, the lower Court has observed that the Description of the Suit Property in the Plaint Schedule and Rough Plan do not tally. The Suit was posted for Clarification on 10.04.2003. On that day, the Plaintiff School has not taken any steps for Amendment of the boundaries. It is said to have taken an adjournment. On 16.04.2003, the Plaintiff Trust has filed I.A.No.561 of 2003 to reopen the case and I.A.No.562 of 2003 to Amend the Plaint. No doubt, the Amendment Application was filed at the fag end of the adjudication of the case. The findings of the Courts below that the Amendment Application could have been brought up earlier does not merit acceptance. The facts and circumstances of the case indicate that the Plaintiff could not have brought up the Amendment application earlier. The Parties went on trial raising their rival contentions on the disputed property of 29 cents. The variation in the Boundary Description was not made an issue during the Trial, since the Parties had clear understanding of the dispute in the boundaries. But for the mention of the Court about the discrepancy in the Boundary Description, the mistake in the Boundary Description of the Plaint Schedule Property would have gone unnoticed. As discussed earlier, in the Rough Plan filed along with the Plaint, the Northern Boundary and the Eastern Boundary had been clearly stated as "Authi and others" and "Plaintiff School Buildings". When the Northern and Eastern Boundary had been rightly shown in the Plan, the inference being that the parties had clear understanding of the Property in dispute. Since the Northern and Eastern Boundaries have been correctly stated in the Plan, the innocuous mistake in the Description of the Boundaries in the Plaint Schedule and the mistaken Description of the Western and the Southern Boundary in the Rough Plan might have gone unnoticed.
18. Yet another aspect is also to be pointed out. The Suit was originally filed in Sub-Court, Tirunelveli in O.S.No.10 of 1995. Due to enhancement of pecuniary jurisdiction of the Munsif Court, the Suit was transferred to District Munsif Court, Valliyoor and re-numbered as O.S.No.253 of 1996. In view of such transfer from one Court to another, the counsel who filed the Suit and the Counsel who had conducted the case may not have noticed the mistake in the Boundary Description. Though the Amendment Application was filed at the late stage, circumstances clearly show that the Amendment Application could not have been filed earlier. The power of the Court to allow the Amendment is to facilitate the task of administration of Justice and not to disallow the same on technical grounds. At the time of Trial, since the parties had clear understanding of the location of the Property in dispute, this Court finds that the lower Court was not right in dismissing the Amendment Application on the ground that it was filed with delay.
19. For dismissing the Amendment Application, learned District Munsif has also referred to the Code of Civil Procedure (Amendment) Act 2002. Order VI, Rule 17 C.P.C has been amended by the C.P.C.Amendment Act with effect from 01.07.2002. A new proviso has been added to the rule, namely that no application for amendment of the pleadings shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of Trial.
20. In 2005 (3) C.T.C. 412 and 2004 (2) C.T.C. 742, this Court has held that after the Trial of the case, no Application for Amendment of the Pleadings shall be allowed. In the decision reported in RETHINAM ALIAS ANNA SAMUTHIRAM AMMAL ..VS.. SYED ABDUL RAHIM (2005 (3) C.T.C. 321), P.K.MISRA, J. referring to Section 16 of the Code of Civil Procedure (Amendment) Act 2002, held that in respect of the Plaint or Written Statement filed before 01.07.2002, the Proviso to Order VI Rule 17 C.P.C would have no applicability. In the said decision, the learned Judge has held :
"6. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows:
"16. Repeal and Savings:- (1) ........ (2)........
(a).......
(b) the provisions of Rules 5,15,17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c) ..........
The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure (Amendment) Act 2002 shall not apply to in respect of any pleadings filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act, 2002. As already indicated, the Code of Civil Procedure (Amendment) Act 1999 and the Code of Civil Procedure (Amendment) Act 2002 came into force with effect from 01.07.2002. From the bare reading of the provisions contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act 2002, it is clear that such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously include the Plaint and Written Statement. Therefore, in respect of the Plaint or Written Statement filed before 01.07.2002, the proviso to Order 6 Rule 17 C.P.C would have no applicability....."
Learned Single Judge has also expressed the view that Section 16 of the Code of Civil Procedure (Amendment) Act 2002 was not brought to the notice of the Court in the case reported in 2004 (2) C.T.C. 742.
21. In the decision reported in 2005 (3) C.T.C. 412, this Court allowed the Revision Petition dismissing the Amendment Application. That Amendment Application was mainly dismissed on the facts and circumstances of that case that the proposed Amendment introduces a new case, apart from the fact that it was filed highly belatedly. Incidentally in the said decision, I have taken a view that the Proviso to Order VI Rule 17 C.P.C is applicable to the case (though the pleadings in the case has been filed prior in 1994 - Prior to the commencement of the Amendment Act 2002). In the said decision, I have taken a view that in all the cases including those of the cases where the Suit has been filed even prior to 01.07.2002, the Proviso to Order VI Rule 17 C.P.C would be applicable. At that time, Section 16 of Code of Civil Procedure (Amendment) Act 2002 was not brought to the notice of the Court.
22. I am of the view that in view of Section 16 of Amendment Act 2002, any pleading filed before 01.07.2002 would not be governed by the Amended Act. To shorten the litigation and speed up the decision in the cases, Amendment was made by deleting Or. VI Rule 17 from the Code. This evoked much controversy from the lawyers, agitations all over the country, strikes and boycott of courts as the amendment was considered necessary. By CPC (Amendment)2002 the provision (Or. VI R.17 C.P.C.) has been restored; the provision for amendment has been given back to the Court with certain limitations. Provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted, inserted or substituted as the case may be by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 shall not apply in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act 2002. The effect is that the new proviso added to Order VI Rule 17 C.P.C is not applicable to the pleadings filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 with effect from 01.07.2002. With due respect, I am in full agreement with the view taken by P.K.MISRA, J. in 2005 (3) C.T.C. 321.
23. The Plaint in O.S.No.10 of 1995 (renumbered as O.S.No.253 of 1996) was filed on 09.01.1995 prior to Code of Civil Procedure (Amendment) Act, 1999. The view taken by the learned District Munsif applying the Proviso to Order VI Rule 17 C.P.C to the Suit which was filed on 09.01.1995 cannot be endorsed with.
24. The Amendment does not introduce a new case nor it alters the character of the Suit. The proposed Amendment only seeks to correct the innocuous mistake in the Boundary Description of the Plaint Schedule Property. The object of the Amendment is to advance the substantial justice. Learned District Munsif has not properly appreciated the Boundary recitals in the Sale Deed. Impugned Order dismissing the Amendment Application cannot be sustained.
25. The maintainability of the Revision is also challenged on the ground that no Revision Petition has been preferred against the order of dismissal of the Application to reopen the case in I.A.No.561 of 2003. The Application to reopen the case was only procedural formality. No doubt, the Plaintiff Trust ought to have filed a separate Revision Petition as against the order of dismissal of the reopen Petition. But, this Court is of the view that such technicality may not be an impediment in allowing this Revision Petition.
26. For the foregoing reasons, this Civil Revision Petition is allowed setting aside the order dated 06.06.2003 of the learned Principal District Munsif, Valliyur in I.A.No.562 of 2003 in O.S.No.253 of 1996. Learned District Munsif, Valliyur is directed to afford opportunity to the Plaintiff School to carry out the Amendment in the Plaint and the Rough Plan thereon and for filing the Amended Plaint Copy. Thereupon, the Trial Court is directed to afford further opportunity to both the parties to adduce additional evidence, if any, and dispose of the Suit in accordance with law expeditiously. The connected C.M.P.No.12768 of 2003 is closed. In the circumstances of the case, there is no order as to costs.
Index: Yes/No 29..08..2005 Internet: Yes/No Dpn/- Office to Note:- Registry is directed to communicate a copy of this order to the Court below forthwith. R. BANUMATHI, J.