Madras High Court
Jeya vs Sundaram Iyyar on 28 July, 2005
Equivalent citations: (2005)4MLJ278
ORDER M. Thanikachalam, J.
Page 2212
1. The defendant, who was unsuccessful before the trial Court in resisting the application filed by the respondent/plaintiff to amend the plaint, is the revision petitioner.
2. On 4.8.2002, the plaintiff/respondent has filed the suit in O.S. No. 110 of 2002, on the file of the District Munsif, Tiruchendur for declaration that the debt borrowed on mortgage, dated 7.2.1996, is discharged in view of the deposit of the amount of Rs. 10,000/= i.e. for redemption, which was opposed, contending that the documents relied on by the plaintiff, are inadmissible in evidence. When the case was posted for judgment, after the closure of evidence, the plaintiff has filed I.A. No. 33 of 2004, to amend the plaint, in order to include the prayer for recovery of possession, which was allowed on 6.2.2004. Thereafter, the learned Additional District Munsif, hearing both sides, adjourned the case to 22.3.2004 for judgment and just two days before the judgment is to be pronounced, another application, to amend the plaint, was filed in I.A. No. 126 of 2004, which was opposed, contending that the proposed amendment is impermissible under law, if allowed, that will not only change the basic structure of the case, but also would change the character and nature of the claim also. Despite objections, the learned Additional District Munsif, in her detailed order, seeking aid from the rulings of this Court, as quoted by either counsel, and considering the dominant purpose of Order 6 Rule 17 CPC, came to the conclusion that in order to solve the problems between the parties, in the same suit, the proposed amendment should be permitted. But, at the same time, because of the inordinate delay and the stage of the petition filed, she allowed the application on payment of costs of Rs. 1,000/=, which is under challenge in this revision.
3. Heard both.
Page 2213
4. The main thrusts of the learned counsel for the revision petitioner are that the trial Court has not considered the effect of the amendment introduced in Order 6 Rule 17 CPC, viz. proviso, which bars this kind of amendments and that the trial Court also failed to consider the scope of the amendment, which certainly, if allowed, would change the character and basic structure of the suit, thereby depriving the right accrued to the defendant on the basis of the original plaint, which is impermissible.
5. On the other hand, the learned counsel for the respondent/plaintiff would contend that the revision itself is not maintainable, that the proposed amendment is not aimed to change the structure or the base of the original plaint and in fact, the proposed amendment is permissible under Order 6 Rule 17 CPC, which was properly considered by the trial Court and that the proviso introduced in Order 6 Rule 17 CPC is not applicable in all the cases, particularly in this case, since in the proviso itself, power is given to the Court to amend the plaint, even after the trial has commenced. Thus, supporting the conclusion of the learned Additional District Munsif, a strenuous submission was made by the learned counsel for the respondent/plaintiff for the dismissal of this civil revision petition.
6. In order to decide the controversy raised, as stated above, we have to remember the stage, when the amendment petition was filed, when the suit was filed and whether the proposed amendment comes within the exception given in the proviso to Order 6 Rule 17 CPC. Admittedly, the plaint was presented before the trial Court on 4.8.2002 i.e. after the amendment came into force on and from 1.7.2002. In this view, the amended C.P.C. is well applicable, and therefore, we cannot decide the proposed amendment, only on the basis of the old Order 6 Rule 17 C.P.C. and in addition, proviso to the said provision should also be taken into consideration and there cannot be any dispute in this regard.
7. It is an admitted position, as recorded by the trial Court also, that the written statement was filed on 19.3.2003, that the trial was commenced on 3.9.2003, that after the closure of the evidence, the case was posted for the judgment. It appears, the Court, suo motu, reopened the case and taking advantage of the same, probably, the plaintiff had filed an application in I.A. No. 33 of 2004, to amend the plaint, in order to include a prayer for recovery of possession, which was allowed on 6.2.2004. The learned Additional District Munsif, after allowing the said amendment application, hearing both, adjourned the case for pronouncing the judgment to 22.3.2004. Just two days prior to the judgment to be pronounced, on 19.3.2004, the present amendment petition was filed, aiming to include more prayer, more or less changing the nature of the suit, the fact being the original suit was for redemption and the amendment, now sought for, is for declaration of title and recovery of possession. Thus, it is seen, only after the commencement of the trial, the amendment application has been filed, thereby bringing this amendment application within the four walls of Order 6 Rule 17 proviso, which came into force on and from 1.7.2002, thereby making the proviso applicable, and there cannot be any dispute in this regard also.
Page 2214
8. The suit is based upon an un-registered mortgage deed dated 7.2.1996, under which it is said, the owner had mortgaged the property, after receiving a sum of Rs. 10,000/=. I am not going into the merits of the document and passing of consideration, in this revision. When the revision petitioner/defendant has filed the written statement, the same was opposed on the ground that the suit filed for redemption, on the basis of an inadmissible document, is not maintainable, and therefore, the question of discharging the mortgage, making an endorsement on the same, does not arise. Thus, the plaintiff was informed at the first instance itself about the non-maintainability of the suit, based upon an inadmissible document. The fact that the suit is based on an un-registered document and the same is not maintainable, also must be known to the parties and the counsel, though the suit has been filed, as if it is maintainable. Despite the objection in the original written statement, the plaintiff has not made any attempt to amend the plaint, seeking the relief of declaration and possession, which is now sought for. When the plaintiff has made an attempt to amend the plaint, introducing the prayer for recovery of possession, which was allowed, no attempt has been made on his part to include the present prayers also, which were available not only on the date of filing of the suit, but also when the subsequent amendment application was filed. In this context, we have to see, what is the effect of proviso to Order 6 Rule 17 CPC.
9. Order 6 Rule 17 CPC proviso reads:
"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".
The proviso makes it clear, the amendment will not depend upon the defence raised by the defendant and the amendment will depend upon the due diligence that the party could have exercised, at the time of the filing of the suit or it must have been beyond the reach of the parties, to raise the proposed amendment, in spite of due diligence. Thus, de hors the defence raised, we have to see, 'whether the party, who seeks the amendment, after the commencement of the trial, had any occasion to know the proposed amendment is necessary or he should have included the prayer, at the time of the filing of the suit itself, or before the commencement of trial of the suit.
10. If it is made out that the party who seeks amendment had no occasion or opportunity, in spite of due diligence, to raise this plea, then, irrespective of the bar imposed under the proviso, that 'no application for amendment shall be allowed, after the trial is commenced', applying the exception built therein, the Court can permit the party, to amend the plaint, exercising its wide discretionary power, available originally under Order 6 Rule 17 CPC, that the party can seek the amendment at any stage of the proceedings. But, the said power is curtailed or it could be said, a ban is imposed, and therefore, the wide discretion, which was available originally under Order 6 Rule 17 CPC, cannot be invoked, as a matter of right, only under the consideration that the amendment shall be allowed for the Page 2215 purpose of determining the real questions, in controversy, between the parties, in the same suit. The Legislators thought it fit that because of the subsequent amendments allowed, taking into consideration that the dispute should be decided in the same suit, the parties are taking advantage to file the amendment applications at any stage thereby delaying the proceedings, and hence an embargo should be placed and in this view alone, the proviso is introduced, more or less barring the amendment application, after the commencement of the trial. Here also, the Legislators had the wisdom that if total ban is imposed, the rights of the parties would be prejudiced and in this view, an exception is built-in, in the proviso itself. A party who is aware of his rights and who is aware of the fact that his rights are questioned by the other side, must include all the reliefs, which are necessary to solve the dispute between the parties. There may be cases, where the party would not have forethought, all the reliefs, which he can claim in the ordinary course, by applying due diligence. To give relief to this kind of parties alone, the exception is given in a case where the court comes to the conclusion that in spite of due diligence, the party could not have raised the mater, i.e. the proposed amendment, before the commencement of the trial. The Court cannot take any conclusion, on its own, and the Court comes to the conclusion only on the basis of the pleadings supported by materials, either in the form of oral or documentary evidence. Therefore, the party, who seeks to amend the plaint, after the commencement of the trial, must satisfy the Court to come to the conclusion that, in spite of his due diligence, he was unable to raise this proposed amendment, while filing the plaint or before the commencement of trial. In this view, we have to see, whether such a situation is available in this case, so as to say that the proviso is not a bar for the amendment, even after the commencement of the trial.
11. As adverted to above, the plaintiff had the opportunity to exercise his due diligence, to include the proposed prayer, in view of the defence already raised, but failed. Here, the plaintiff/respondent had another opportunity to include the prayer, when he filed I.A. No. 33 of 2004, wherein he sought for recovery of possession, by way of amendment. Thus, it is seen, he had an opportunity to include this prayer also, exercising due diligence, which he failed, and therefore, in my considered opinion, he cannot walk-in within the exception given under proviso, which is further enlightened in the affidavit of the plaintiff/respondent.
12. In the affidavit, it is alleged that the revision petitioner/defendant has raised the defence, that if at all, possession is to be sought by the plaintiff, he has to seek the same on the basis of the title, for which the suit should be valued under Section 25-A of the Tamil Nadu Court Fee Act and because of this defence, it is necessary that the plaint should be amended, that the suit is to be based on title and recovery of possession. The proposed amendments are, deleting the endorsement prayer, for discharge, including the prayer that the mortgage is discharged and introducing declaration and possession ,with consequential modification regarding Court Fee provisions and payment of Court Fee. No pleading is sought to be introduced to suit the prayer for declaration and possession. Page 2216 By going through the affidavit, I am unable to see any case that this plaintiff will come within the meaning of 'a person, who had exercised due diligence' and unable to raise the proposed amendment before the commencement of the trial. In fact, as said above, because of the defence already taken by the revision petitioner, even without exercising so much of diligence, one can easily understand that declaration and possession must be necessary to get the property from the defendant, since the defendant had questioned the admissibility of the un-registered mortgage and also challenged the recovery of possession, even. Thus, on facts, it is well demonstrated by the pleadings of the plaintiff himself that the plaintiff/respondent, certainly, will not come within the exception available in proviso to Order 6 Rule 17 CPC, and this being the position, then, naturally, the proviso comes into operation, which bars, mandatorily also, that no application for amendment shall be allowed, after the trial is commenced, which is an admitted position here.
13. Unfortunately, the learned trial Judge, in her lengthy order, had taken the pain to discuss the ambit of Order 6 Rule 17 based upon the rulings, as prevailed then, when those rulings have considered only the scope of Order 6 Rule 17 CPC, not the proviso. A feeble attempt was also made, by the learned Additional District Munsif, to consider the proposed amendment, in paragraph 12 of the Order. But, unfortunately, it is not known, why she has not taken the pain to discuss the proviso or to find out the position, whether the respondent herein comes within the exception, available in proviso or the proviso is not, totally, applicable to the proposed amendment. Without giving a finding by applying her mind, simply placing reliance upon the rulings, which had considered only Order 6 Rule 17 and not the proviso, in my considered opinion, the learned Additional District Munsif has committed an error thereby violated or infringed the provisions of Order 6 Rule 17 proviso and it requires re-consideration by this Court.
14. The submission of the learned counsel for the respondent/plaintiff that the revision is not maintainable, as per the dictum laid down by the Apex Court, in Prem Bakshi and Ors. v. Dharam Dev and Ors. , is also not acceptable to me because of the fact, in the said ruling, the Apex Court has considered only the scope of Section 115 CPC, whereas it has not considered the revision under Article 227 of the Constitution. This revision is filed under Article 227 of the Constitution of India.
15. The Apex Court, in Surya Dev Rai v. Ram Chander Rai and Ors. , has held, the revision could be maintained under certain circumstances, invoking Article 227 of the Constitution of India, and therefore, it is not possible to hold Page 2217 that no revision is maintainable under any provisions of law. In this view, when it is shown that the trial Court has failed to exercise its jurisdiction, properly applying the provisions of law, or when it is so that the trial Court has wrongly exercised its jurisdiction, offending the statute, then, invoking the supervisory jurisdiction of this Court, there can be interference by this Court and in this view, I am of the opinion, the revision is well maintainable, under Article 227 of the Constitution of India, since I am of the view, for the reasons supra, that the learned trial Judge has not properly considered Order 6 Rule 17 proviso, thereby she has offended and infringed the law and wrongly exercised her jurisdiction and if that kind of order is allowed to stand, that will cause prejudice to the other side, since there is no possibility for the revision petitioner to nullify the same, though he may have the chance to defend the case, based on amendment.
16. In P. Subba Naicker v. Veluchamy Naicker and Three Ors. (2004 (2) CTC 742), this Court has considered the permissibility of amendment of plaint, after commencement of trial, and came to the conclusion that 'the amendment of plaint cannot be allowed, after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the plaintiff could not raise the plea before commencement of trial'. It is also held that 'the petition filed, after the commencement of trial, not disclosing the exception available under Order 6 Rule 17 CPC, is impermissible, in view of the proviso, which is the uniform view of this Court also, subsequently.
17. As rightly submitted by the learned counsel for the revision petitioner, placing reliance upon two decisions of this Court, the revision is not only maintainable, but also the revision should receive the acceptance of this Court. In Ramesh Ramanujam v. Varadammal and Ors. [(2005) 2 MLJ 382], this Court had the occasion to consider Order 6 Rule 17 CPC, as it stood and the subsequent amendment based upon previous decisions also. In the case involved in the above decision, it appears, an application came to be filed for amendment, during the pendency of the appeal, which was dismissed, against which the revision was targeted. Considering the facts and circumstances of the case, N.Kannadasan, J., has held that "By analysing the settled principles of law with reference to the provision viz., O.6 Rule 17, prior to the amendment as well as the subsequent amendment, the Court is of the opinion that the amendment of pleadings is not permissible in law after the completion of trial."
This is more or less identical to the case on hand because of the admitted position, the case is posted for pronouncing the judgment.
18. In Kasiappa Gounder v. Karuppan , this Court has taken the view that 'after the commencement of the trial, in view of the embargo available under Order 6 Rule 17 proviso, the amendment is not permissible.' Page 2218
19. Thus, the decisions available, on this question of law, are also uniform and therefore, there should be judicial consistency. I am constrained to follow the above decisions, in addition to the facts established in this case, as recorded by me supra.
20. For the foregoing reasons, the revision deserves acceptance, warranting interference of this Court, under Article 227 of the Constitution of India.
In the result, the revision is allowed. The order of the learned Additional District Munsif, Tiruchendur in I.A. No. 126 of 2004 in O.S. No. 110 of 2002, dated 29.3.2004, is set aside, dismissing the said I.A. Parties are directed to bear costs of their own.
Consequently, C.M.P. No. 398 of 2004 is closed.