Madras High Court
Thavasimuthu S/O. Sembulinga Gounder vs Ramasamy S/O. Pachamuthu Gounder, ... on 13 June, 2005
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. This Civil Revision Petition is directed against the order dated 29.06.2001 made in I.A. No. 1433 of 2000 in O.S. No. 463 of 1999 by the Principal Distirct Munsif, Bhavani, dismissing the Petition under Order VI Rule 17 C.P.C. The Plaintiff is the Revision Petitioner.
2. The Suit Property relates to the Cart Track running from R.S. No. 414 through the land in R.S. No. 417 upto the lands in R.S. No. 419/1 and 419/2 (Old S.F. No. 666) of Ilipili Village. Case of the Plaintiff is that the Plaintiff and his Brother - Pachamuthu Gounder purchased the property in the lands in S. No. 419/2 of Ilipili Village by a Sale Deed dated 30.10.1986. Plaintiff's Brother Pachamuthu Gounder had executed a Release Deed in favour of the Plaintiff for his half share under the Release Deed dated 02.12.1998, relinquishing his half share in the property. The Plaintiff is the absolute owner of the properties in S. No. 419/2. Along with the property, the Plaintiff also has the right to use the suit Cart Track. The Defendants are the neighbouring land owners and have no right to restrain the Plaintiff or others from using the Suit Cart Track. The Plaintiff and other neighbouring land owners have been enjoying the Suit Cart Track as their mamool Cart Track. All of them have been using the Suit Cart Track at the maximum utility without causing any disturbance or damage to the other properties. While so, on 12.09.1999, the Defendants have attempted to obliterate the Suit Cart Track, which was prevented by the Plaintiff with the help of his relatives and friends. Hence, the Plaintiff has filed the Suit for Permanent Injunction restraining the Defendant, their Men and Agents from interfering with the Plaintiff's peaceful possession and user of the Suit Cart Track.
3. Resisting the Suit, the Defendant has filed the Written Statement, denying the right of the Plaintiff to use the Suit Cart Track. The First and Second Defendants have separately filed the Written Statement. According to the Second Defendant, his Father - Naina Gounder owned agricultural lands in Ilipili village. Naina Gounder purchased the lands from D-1 and his Legal Heirs and also from one Egamparam and Varathayammal by Sale Deed dated 17.11.1996. Later, he has also obtained lands from one Velliya Gounder under an Exchange Deed dated 04.10.1983. After the death of Naina Gounder, the Second Defendant and other legal heirs of Naina Gounder have succeeded to the properties including the Suit Cart Track as the legal heirs of Deceased-Naina Gounder. Hence, the Defendant and other legal heirs of the said Naina Gounder are only the owners of the Suit Cart Track and they have been enjoying the same absolutely. Neither the Plaintiff nor other neighbouring land owners have any manner of right, title or interest over the Suit Cart Track. Neither the Plaintiff nor his Predecessor in Title have used the Cart Track at any point of time. In fact, the First Defendant is also not having any manner of right or title over the Suit Cart Track. The First Defendant has been using the Cart Track only on the basis of Temporary usage granted by the Second Defendant and other legal heirs of Deceased Naina Gounder. The Plaintiff offered to purchase a portion of the Defendants land near the Suit Cart Track. Since the Defendant refused to sell the same, the Plaintiff has filed the Suit against the Defendant. The Plaintiff is not entitled to any Right or Title in the Suit Cart Track.
4. I.A. No. 1433 of 2000:- This Petition was filed for amending the Plaint to include the prayer "to declare the Plaintiff's easementary right for the suit property" in Paragraph 11 of the Plaint And also to include the averments in Paragraph 7 of the Plaint that "the Suit Cart Track is necessary for the Plaintiff to reach his lands and that the Plaintiff has only the Suit Cart Track and no other Cart Track. The Plaintiff is entitled to the Suit Cart Track by grant, prescription and easement by necessity". The above amendment is sought to be incorporated in the Plaint.
5. The Amendment Application was resisted by the Second Defendant, contending that the Plaintiff has filed the Amendment Petition totally altering the nature of the Suit. The Petition filed for Amendment of Plaint was objected that it has no basis and is not maintainable.
6. Upon consideration of the submissions of both parties, by a cryptic order, the learned District Munsif has dismissed the petition finding that the proposed Amendment would change the nature of the Suit. It was further held that the proposed Amendments are inconsistent with the Plaint allegations. Aggrieved over the dismissal of the Petition, the Plaintiff has preferred this Civil Revision Petition.
7. The Revision Petitioner represented by learned counsel Mr. N. Manokaran and the Second Respondent represented by learned counsel Mr. T. Murugamanickam. It is stated that the Second Respondent died on 16.06.2003. Learned counsel for the Revision Petitioner has stated that for impleading the Legal Representatives of the Second Respondent steps has already been taken in the Trial Court and the same is pending. The said statement of the learned counsel for the Revision Petitioner is recorded.
8. Drawing the attention of the Court to the Written Statement filed by the Defendant, learned counsel for the Revision Petitioner has submitted that when the Second Defendant has claimed absolute right over the Suit Cart Track, amending the Plaint for declaration, easementary right is very much essential. Submitting that there is no inconsistency with the earlier plea, learned counsel has submitted that a liberal approach is to be adopted regarding pre-trial Amendment. In support of his contention, learned counsel has placed reliance upon the decisions reported in Sampath Kumar v. Ayyakannu and Anr. (2002 (4) C.T.C. 189), B.K. Narayana Pillai v. Parameswaran Pillai and Anr. (2000 (1) S.C.C. 712) and U. Mohammed Isak v. Natarajan and two Ors. (2001 (1) C.T.C. 577).
9. Countering the arguments, learned counsel for the Second Respondent has submitted that when the Suit has been originally filed for Permanent Bare Injunction, the Amendment now seeking for Easementary right is inconsistent with the earlier plea. Drawing the attention of the Court to the decision reported in Thangamuthu v. K. Vijayalakshmi and Anr. (1995 (2) L.W. 875), learned counsel for the Second Respondent has submitted that such a prayer is inconsistent with the earlier prayer and the Trial Court has rightly declined the Amendment and the Impugned Order warrants no interference.
10. Upon consideration of the submissions and the impugned order, the only point that arises for consideration is whether the lower court has properly exercised the discretion in dismissing the Amendment Application.
11. The Power of the Court to allow the amendment is very wide and can be exercised at any stage of the proceeding. Court should adopt a liberal approach in allowing the amendment and the amendment should not be disallowed on hyper technical grounds. The power is entirely discretionary to be used judicially on a consideration of the facts and circumstances of each case. The rule allows at any stage all amendments which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining "the real questions in controversy between the parties" approved in Pirgonda v. Kalgonda (A.I.R. 1957 S.C. 363). If the Amendment changes the cause of action or introduce a new case, the Amendment should not be allowed.
12. Elaborately discussing on the principles of Amendment, in the decision reported in B.K. Narayana Pillai v. Parameswaran Pillai and Anr. (2000 (1) S.C.C. 712) the Supreme Court has held :-
"...The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But, it is equally true that the Courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
In the same decision, it has been held that the object of Courts and rule of procedure is to decide the rights of the parties and not to punish them for their mistakes. .....It has also been held that all the Amendments should be allowed which are necessary for determining all real controversies in the Suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.
13. In the light of the above, let us consider whether the proposed Amendment introduces any new case inconsistent with the earlier plea. The Plaintiff has claimed the right to the suit property and the property in S. No. 419/2 and the Suit Cart Track by virtue of the Sale Deed dated 13.10.1996 and the Release Deed executed by his Brother - Pachamuthu Gounder dated 02.12.1988. Even in the Plaint, the Plaintiff has averred that the Defendants are having the lands near the Suit Cart Track. The Suit Cart Track is used by the Plaintiff, the Defendants and other neighbour land owners as their mamool Cart Track till now. Nobody can restrain another to use the Suit Cart Track at any point of time. All of them are the user of the Suit Cart Track at the maximum utility without causing any disturbance or detriment of damage of the other properties belong to others. The Plaintiff has also produced the documents to substitute the existence of the Suit Cart Track upto the lands in S. No. 419/1 and 419/2. This, in clear terms in the Plaint averments, the Plaintiff has indicated that the Suit Cart Track is a Mamool Cart Track and that the Plaintiff and other neighbouring land owners are entitled to use the same, but the Plaintiff has not indicated in the Plaint the nature of right which the Plaintiff claims. The Suit has been filed for Bare Permanent Injunction.
14. Now, the Plaintiff seeks to amend the Plaint to include the prayer for "declaring the Plaintiff's easementary right for the Suit Property" in Paragraph 11 of the Plaint. Further, in Paragraph 4 of the Plaint, the Plaintiff seeks to amend as "the alleged suit Cart Track in necessary are the Plaintiff has to reach his lands only through the suit Cart Track and no other Cart Track. The Plaintiff the Suit Cart Track by grant, prescription and easement by necessity".
15. The above proposed Amendment is based on the same set of facts on which the Plaintiff earlier set forth the Plaint. The Declaration of Easementary right and Permanent Injunction and the proposed amendment sought for to be added in Paragraph 4 are based on the same set of fact. It does not introduce any new cause of action nor new set of facts. The proposed amendment only amounts to add or additional approach on the same set of facts and the same is to be allowed.
16. Opposing the Amendment, learned counsel for the Second Respondent has submitted that the Plaintiff has earlier sought for Permanent Injunction on the basis of claiming the common right and subsequently seeking to amend the Plaint as the one for Easementary right which introduces an inconsistent plea. In support of his contention, learned counsel for the Second Respondent has placed reliance upon the decision reported in Thangamuthu v. K. Vijayalakshmi and Anr. (1995 (2) L.W. 875). In the said case, instead of the original prayer for easementary right, the amendment sought for declaration of Title, the order to grant an Amendment was declined, which was upheld in the Revision. The said decision stands on a different footing. Since the proposed amendment was for enlarged right for declaration of Title in the place of restricted right of declaration of Easementary right and that principle can not be applied to the case in hand. It is relevant to note that in the Written Statement, paras (6) and (7), the Second Respondent had categorically denied the right of the Plaintiff. In paragraphs 6 and 7, the Second Respondent averred that "...except the Second Defendant and the other legal heirs of Naina Gounder, no body else have no manner of right, title or interest over the Suit Cart Track..." The same has been reiterated in the Additional Written Statement filed by the Second Defendant in Para(8). In the additional Written Statement also, the right of user of the Plaintiff or his vendor of the Suit Cart Track is denied. In view of the categoric denial of the Plaintiff's right of user, it has become for the Plaintiff to amend the Plaint.
17. Holding that a liberal approach is to be adopted in the pre trial in Sampath Kumar v. Ayyakannu and Anr. (2002 (4) C.T.C. 189) the Supreme Court has held that the pre trial Amendment is to be allowed more liberally than amending after commencement of the Trial. In the said decision, suit was filed for declaration - permanent injunction alleging that the Plaintiff was dispossessed during the pendency of the Suit, the Plaintiff has moved the application for Amendment of Plaint seeking for relief of declaration of title and redelivery of possession. Holding that basic structure of the suit is not altered by the proposed amendment, the Supreme Court has held "...On appeal to Supreme Court it was held that basic structure of suit was not altered by proposed amendment - Only nature of relief is sought to be changed - If it is permissible for plaintiff to file independently suit, same relief could be prayed in pending suit - Allowing such amendment curtails multiplicity of legal proceedings - Pleadings can be amended at any stage of proceedings for determination of real questions in controversy...Pre-trial amendment to be allowed more liberally than amendment after commencement of trial..."
The above observation of the Supreme Court squarely applies to the case in hand.
18. The object of Order 6 Rule 17 C.P.C is to avoid multiplicity of proceedings. There is much force in the contention of the learned counsel for the Petitioner that if the amendment is not allowed, the Plaintiff would be subjected to much hardship and might be driven to file another suit. The averments in the Plaint is wanting as to not clearly indicating the nature of the relief sought for. No doubt there is shortcoming in the Plaint averments; but the facts are clearly set forth in the Plaint averments. Quite often in the mofussil, there are such shortcomings in the Pleadings. Mofussil pleadings are not to be construed strictly; the Court has to look into only the substance of the pleadings to render substantial justice. The proposed amendment seeking to add declaration for easementary right does not introduce an inconsistent plea, and the same has to be allowed.
19. It is relevant to point out that the impugned order is cryptic. The Court below has neither discussed the plea in existence and the proposed amendment. Learned District Munsif has not taken note of the Defence plea set forth by the Defendant claiming absolute right over the property. The learned District Munsif has not properly exercised the discretion in liberally approaching the pre- trial amendment. The Plaintiff has produced the documents such as Partition Deed, Sale Deed etc., showing the existence of the Cart Track. An opportunity is to be given to the Plaintiff to amend the Plaint introducing the appropriate relief sought for. There is no proper exercise of discretion in refusing the proposed amendment. The impugned order suffers from serious infirmity and cannot be sustained. This Revision Petition is to be allowed.
20. Therefore, the order of the Principal District Munsif, Bhavani dated 29.06.2001 in I.A. No. 1433 of 2000 in O.S. No. 463 of 1999 is set aside and this Civil Revision Petition is allowed. In the circumstances of the case, there is no order as to costs. The connected C.M.P. No. 16194 of 2001 is closed. On filing the amended Plaint copy, learned District Munsif, Bhavani is directed to afford an opportunity to the Respondents / Defendants to file additional Written Statement, if any.