Madras High Court
Shanmugam vs Kamatchi on 18 December, 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 12.12.2024
PRONOUNCED ON : 18.12.2024
CORAM
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
C.R.P.(MD)(PD)No.230 of 2021
and
C.M.P.(MD)No.1393 of 2021
Shanmugam ... Petitioner
vs.
Kamatchi ...Respondent
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India to set aside the fair and decreetal order, dated 15.12.2020 passed in I.A.No.
204 of 2019 in O.S.No.65 of 2016 on the file of the District Munsif cum Judicial
Magistrate Court, Natham.
For Petitioner :Mr.N.Rahamadullah
For Respondent :Mr.A.Jayaramachandran
*****
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ORDER
The present Civil Revision Petition has been filed challenging the order
passed by the learned District Munsif cum Judicial Magistrate, Natham, in
I.A.No.204 of 2019 in O.S.No.65 of 2006, dated 15.12.2020.
2.The Revision Petitioner is the defendant in the suit. The respondent, as
plaintiff, has filed a suit for injunction in O.S.No.65 of 2006 and had obtained an
order of interim injunction in I.A.No.200 of 2016. The respondent/plaintiff
subsequently filed a contempt application in I.A.No.256 of 2016 contending that
the defendant had demolished the sun shed of the respondent/plaintiff's house on
26.08.2016. The Revision Petitioner/defendant had filed his counter in the said
application in I.A.No.256 of 2016 contending that on 07.08.2016, the
respondent/plaintiff itself had removed the sun shed.
3.The trial Court by taking note of the fact that the respondent/plaintiff had
not furnished any document to show that the petitioner/defendant has caused
damage to the property of the plaintiff on 26.08.2016 and with regard a false
complaint given by the respondent/plaintiff, disbelieving the contention of the
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respondent/plaintiff, the trial Court had dismissed the contempt application in
I.A.No.256 of 2016, which was not challenged by the respondent/plaintiff herein.
4.Thereafter, the respondent/plaintiff filed another application in I.A.No.
204 of 2019 with a prayer to amend the plaint. The learned Counsel for the
petitioner contended that when the respondent/plaintiff had filed an application
that a demolition was attempted by the petitioner/defendant and a finding was
given in I.A.No.256 of 2016 in the contempt application, which goes
unchallenged, had filed the present application in I.A.No.204 of 2019 with
several prayers and one of the prayer is that demolition was made by the
petitioner/defendant in breach of the order passed in I.A.No.256 of 2016. The
Revision Petitioner further contended that such an amendment if allowed or
permitted, the character of the suit itself will be changed and the amendment is
sought with a fresh allegation that the Revision Petitioner/defendant had
encroached upon 1½ feet lane in the respondent/plaintiff's property. The Revision
Petitioner also contended that such a fact is only a new cause of action, which
cannot be amended in the present application, as sought by the
respondent/plaintiff.
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5.The further submission made by the learned Counsel for the Revision
Petitioner is that when the respondent/plaintiff was aware that the occurrence had
taken place on 26.08.2016, filing an amendment petition on 12.11.2019, ie., after
a period of 3 years 2 months and 16 days, is not maintainable. The learned
Counsel for the Revision Petitioner had relied upon a judgment of a learned
Single Judge this Court in S.A.No.674 of 2015, dated 25.10.2017 between
R.Kumar vs G.Jaganmoorthy,. The learned Counsel for the Revision Petitioner
relied upon the above judgment on the ground that if a petition is filed beyond the
period of limitation, then the said application shall not be entertained. In the said
judgment, the learned Single Judge had relied upon a judgment of Hon'bel
Supreme Court reported in 2004 (4) CTC 231 between Pankaja and another vs
Yellappa (D) LRs and others, wherein, the Hon'ble Supreme Court had held as
follows:
"12. The law in this regard is also quite clear and consistent that
there is no absolute rule that in every case where a relief is barred
because of limitation an amendment should not be allowed. Discretion
in such cases depends on the facts and circumstances of the case. The
jurisdiction to allow or not to allow an amendment being discretionary
the same will have to be exercised in a judicious evaluation of the facts
and circumstances in which the amendment is sought. If the granting of
an amendment really subserves the ultimate cause of justice and avoids
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further litigation the same should be allowed. There can be no straight
jacket formula for allowing or disallowing an amendment of pleadings.
Each case depends on the factual background of that case. "In the said
decision, the Hon'ble Apex Court has held that there is no absolute rule
that in every case where a relief is barred because of limitation, an
amendment should not be allowed. However, the Hon'ble Apex Court
in the said decision also held that the discretion in such cases depends
on the facts and circumstances of the case. Paragraphs 14, 15 and 17
could establish that if limitation is a disputed question of fact and law,
then the question of limitation could be relegated at the time of final
disposal of the suit.”
6.Per contra, the learned Counsel appearing for the respondent/plaintiff
contended that if the amendment petition is not allowed, the respondent/plaintiff
will be subjected to great prejudice, as the encroachment made by the Revision
Petitioner was after the institution of the suit. Therefore, when the defendant had
caused a continuing action in the pending suit, the application filed to amend the
plaint will not change the character of the suit and in the interest of justice, such
an amendment has to be made. The learned Counsel further submitted that the
amendment cannot be hit on the ground of limitation, as the limitation itself is an
act of prescription, which has been dealt with under Article 58 or 63 of the
Limitation Act.
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7.The learned Counsel for the respondent/plaintiff had relied upon the
following judgments in support of his contentions:
(1)The Hon'ble Supreme Court in (2001) 8 SCC 97 between M/s.Estralla
Rubber vs Dass Estate (Private) Limited, had held as follows:
“8.It is fairly settled in law that the amendment of pleadings
under Order 6 Rule 17 is to be allowed if such an amendment is
required for proper and effective adjudication of controversy between
the parties and to avoid multiplicity of judicial proceedings, subject to
certain conditions such as allowing the amendment should not result in
injustice to the other side; normally a clear admission made conferring
certain right on a plaintiff is not allowed to be withdrawn by way of
amendment by a defendant resulting in prejudice to such a right of the
plaintiff, depending on the facts and circumstances of a given case. In
certain situations, a time-barred claim cannot be allowed to be raised
by proposing an amendment to take away the valuable accrued right of
a party. However, mere delay in making an amendment application itself
is not enough to refuse amendment, as the delay can be compensated in
terms of money. Amendment is to be allowed when it does not cause
serious prejudice to the opposite side. This Court in a recent judgment
in B.K. Narayana Pillai v. Parameswaran Pillai [(2000) 1 SCC 712]
after referring to a number of decisions, in para 3 has stated, thus:
(SCC p. 715)
“3. 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
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deciding such prayers should not adopt a hypertechnical 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 para 4 of the same judgment this Court has quoted the following
passage from the judgment in A.K. Gupta and Sons Ltd. v. Damodar
Valley Corpn. [AIR 1967 SC 96 : (1966) 1 SCR 796] : (AIR pp. 97-98,
para 7)
“The general rule, no doubt, is that a party is not allowed by
amendment to set up a new case or a new cause of action particularly
when a suit on new case or cause of action is
barred: Weldon v. Neal [(1887) 19 QBD 394 : 56 LJ QB 621] . But it is
also well recognized that where the amendment does not constitute the
addition of a new cause of action or raise a different case, but amounts
to no more than a different or additional approach to the same facts, the
amendment will be allowed even after the expiry of the statutory period
of limitation: See Charan Das v. Amir Khan [AIR 1921 PC 50 : ILR 48
Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR
1957 SC 357 : 1957 SCR 438] ”
This Court in the same judgment further observed that the principles
applicable to the amendment of the plaint are equally applicable to the
amendment of the written statement and that the courts are more
generous in allowing amendment of the written statement as the
question of prejudice is less likely to operate in that event. It is further
stated that the defendant has a right to take alternative plea in defence
which, however, is subject to an exception that by the proposed
amendment the other side should not be subjected to serious injustice
and that any admission made in favour of the plaintiff conferring right
on him is not withdrawn.
(2)The very same view was taken by this Court in C.R.P.(MD)Nos.675 and
676 of 2014 between Narayanan vs Alagarsamy and another, dated 17.07.2018,
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wherein, the learned single Judge of this Court has held as follows:
“9.It is not in dispute in this case that the case of the plaintiff is that the
defendants unlawfully encroached into the plaintiff's property. It is the
further case of the plaintiff that the defendants have encroached further,
after suit. This report of an Advocate Commissioner is certainly in
favour of revision petitioner regarding encroachment. It is true that the
application for appointment of an Advocate Commissioner is to enable
the parties to obtain evidence and not to collect evidence. This principle
does not stand in the way of plaintiff seeking amendment of plaint based
on any subsequent event or for an amendment on the basis of such
report. Merely because, the plaintiff has sought for amendment in tune
with the findings of the Advocate Commissioner regarding
encroachment, the application cannot be dismissed as plaintiff should
be given an opportunity to prove his case and seek relief of mandatory
injunction. Even the question of limitation can be decided at the time of
trial.”
In the above order, this Court has taken a view based on the report filed by the
Advocate Commissioner and the finding thereupon. The learned Counsel for the
respondent contended that the application filed by the revision
petitioner/defendant is for appointment of Advocate Commissioner in which the
Advocate Commissioner has given a report that the sun shed was not there in the
building.
(3)This Court in 2013 (2) MWN (Civil) 395 between T.Raja Reddy vs
C.Srinivasa Reddy and others, had held as follows:
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“13.The learned Counsel appearing for the Respondents relied
on the decision reported in Surender Kumar Sharma v. Makhan
Singh, 2009 (10) SCC 626, to contend that wide powers and unfettered
discretion have been conferred on the Court to allow amendment of
pleadings and even if such an Application for amendment filed
belatedly, such amendment cannot be refused if it is found that for
deciding the real controversy between the parties it can be allowed on
payment of cost. Paragraph Nos. 5, 6 & 7 of the said decision are
extracted hereunder:
“5. As noted herein earlier, the prayer for amendment was refused by
the High Court on two grounds. So far as the first ground is concerned
i.e.the prayer for amendment was a belated one, we are of the view that
even if it was belated, then also, the question that needs to be decided is
to see whether by allowing the amendment, the real controversy between
the parties may be resolved. It is well settled that under Order 6, Rule
17 of the Code of Civil Procedure, wide powers and unfettered
discretion have been conferred on the Court to allow amendment of the
pleadings to a party in such a manner and on such terms as it appears
to the Court just and proper. Even if, such an Application for
amendment of the Plaint was filed belatedly, such belated amendment
cannot be refused if it is found that for deciding the real controversy
between the parties, it can be allowed on payment of costs. Therefore, in
our view, mere delay and latches in making the Application for
amendment cannot be a ground to refuse amendment.
6. It is also well settled that even if the amendment prayed for is belated,
while considering such belated amendment, the Court must bear in
favour of doing full and complete justice in the case where the party
against whom the amendment is to be allowed, can be compensated by
cost or otherwise. [See B.K. Narayana Pillai v. Parameswaran Pillai].
Accordingly, we do not find any reason to hold that only because there
was some delay in filing the Application for amendment of the Plaint,
such prayer for amendment cannot be allowed.
7. So far as the second ground is concerned i.e. the prayer for
amendment of Plaint, if allowed, shall change the nature and character
of the Suit, we are unable to accept this view of the High Court. We have
carefully examined the amendment prayed for and after going through
the Application for amendment of the Plaint, we are of the view that the
question of changing the nature and character of the Suit, if amendment
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is allowed, cannot arise at all. The Suit has been filed for eviction inter
alia on the ground of arrears of rent. It cannot be disputed that even
after the amendment, the Suit would remain a Suit for eviction.
Therefore, we are unable to agree that if the amendment of the Plaint is
allowed, the nature and character of the Suit shall be changed.
Accordingly, the High Court was not justified in holding that the nature
and character of the Suit shall be changed, if such prayer for
amendment is allowed.”
(4)The Hon'ble Supreme Court in 2023 (2) CTC 565 between Ganesh
Prasad vs Rajeshwar Prasad and others, had held as follows:
“35.In B.K.Narayana Pillai v. Parameswaran Pillai reported in
(2000) 1 SCC 712, this Court referred to the following passage from
A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in
AIR 1967 SC 96 wherein, it was held as follows:—
“4.This Court in A.K. Gupta & Sons Ltd. v.Damodar Valley Corpn.
[AIR 1967 SC 96:(1966) 1 SCR 796] held:
“The general rule, no doubt, is that a party is not allowed by
amendment to set up a new case or a new cause of action particularly
when a suit on new case or cause of action is barred: Weldon
v.Neal[[L.R.] 19 Q.B. 394 : 56 LJ QB 621]. But it is also well
recognised that where the amendment does not constitute the addition of
a new cause of action or raise a different case, but amounts to no more
than a different or additional approach to the same facts, the
amendment will be allowed even after the expiry of the statutory period
of limitation : See Charan Das v. Amir Khan [AIR 1921 PC 50 : ILR 48
Cal 110] and L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. [AIR
1957 SC 357 : 1957 SCR 438]
The principal reasons that have led to the rule last mentioned are, first,
that the object of courts and rules of procedure is to decide the rights of
the parties and not to punish them for their
mistakes (Cropper v. Smith [[L.R.] 26 Ch. 700 : 53 LJ Ch 891 : 51 LT
729]) and secondly, that a party is strictly not entitled to rely on the
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statute of limitation when what is sought to be brought in by the
amendment can be said in substance to be already in the pleading
sought to be amended (Kisandas Rupchand v. Rachappa Vithoba
Shilwant [ILR (1909) 33 Bom 644 : 11 Bom LR 1042] approved
in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957
SC 363 : 1957 SCR 595]).
The expression ‘cause of action’ in the present context does not mean
‘every fact which it is material to be proved to entitle the plaintiff to
succeed’ as was said in Cooke v. Gill [[L.R.] 8 C.P. 107 : 42 LJCP 98 :
28 LT 32] in a different context, for if it were so, no material fact could
ever be amended or added and, of course, no one would want to change
or add an immaterial allegation by amendment. That expression for the
present purpose only means, a new claim made on a new basis
constituted by new facts. Such a view was taken in Robinson v. Unicos
Property Corpn. Ltd. [[1962] 2 All ER 24 (CA)] and it seems to us to be
the only possible view to take. Any other view would make the rule
futile. The words ‘new case’ have been understood to mean ‘new set of
ideas’ : Dornan v. J.W. Ellis and Co. Ltd. [[1962] 1 All ER 303 (CA)]
This also seems to us to be a reasonable view to take. No amendment
will be allowed to introduce a new set of ideas to the prejudice of any
right acquired by any party by lapse of time.”
Again in Ganga Bai v. Vijay Kumar [(1974) 2 SCC 393] this Court
held : (SCC p. 399, para 22)
“The power to allow an amendment is undoubtedly wide and may at any
stage be appropriately exercised in the interest of justice, the law of
limitation notwithstanding. But the exercise of such far-reaching
discretionary powers is governed by judicial considerations and wider
the discretion, greater ought to be the care and circumspection on the
part of the court.”
In Ganesh Trading Co. v. Moji Ram [(1978) 2 SCC 91] it was held :
(SCC p. 93, para 4)
“4. It is clear from the foregoing summary of the main rules of
pleadings that provisions for the amendment of pleadings, subject to
such terms as to costs and giving of all parties concerned necessary
opportunities to meet exact situations resulting from amendments, are
intended for promoting the ends of justice and not for defeating them.
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Even if a party or its counsel is inefficient in setting out its case initially
the shortcoming can certainly be removed generally by appropriate
steps taken by a party which must no doubt pay costs for the
inconvenience or expense caused to the other side from its omissions.
The error is not incapable of being rectified so long as remedial steps do
not unjustifiably injure rights accrued.”……””
(5)This Court in (1996) 1 MLJ 350 between G.Jayapandian vs
P.C.Manickam, had held as follows:
“12. It is in this connection we have to consider the purpose of the
amendment. An amendment to a pleading is necessitated to avoid
multiplicity of litigation and also to explain the vagueness, if any, in the
pleadings. To decide the real matter in controversy, parties are permitted
to amend the pleadings. In certain circumstances, the existing pleadings
becomes insufficient or inappropriate due to subsequent events. If
amendment is refused and if the party is directed to file another suit or
proceeding, the very purpose of coming to court will be defeated. We must
understand that both courts and tribunals are intended to administer
justice.”
(6)This Court (2002) 7 SCC 559 between Sampath Kumar vs Ayyakannu
and another, wherein, the Hon'ble Supreme Court held as follows:
“5.The short question arising for decision is whether it is
permissible to convert through amendment a suit merely for permanent
prohibitory injunction into a suit for declaration of title and recovery of
possession.
6.It is true that the plaintiff on the averments made in the
application for amendment proposes to introduce a cause of action
which has arisen to the plaintiff during the pendency of the suit.
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According to the defendant the averments made in the application for
amendment are factually incorrect and the defendant was not in
possession of the property since before the institution of the suit itself.
7.In our opinion, the basic structure of the suit is not altered by
the proposed amendment. What is sought to be changed is the nature of
relief sought for by the plaintiff. In the opinion of the trial court, it was
open to the plaintiff to file a fresh suit and that is one of the reasons
which has prevailed with the trial court and with the High Court in
refusing the prayer for amendment and also in dismissing the plaintiff's
revision. We fail to understand, if it is permissible for the plaintiff to file
an independent suit, why the same relief which could be prayed for in a
new suit cannot be permitted to be incorporated in the pending suit. In
the facts and circumstances of the present case, allowing the amendment
would curtail multiplicity of legal proceedings.”
8.It is not in dispute that the question of limitation with regard to
amendment to be made whether it is a post trial or pre-trial, it all depends upon
the facts and circumstances of the case. Admittedly, in the present application, the
amendment, which was sought by the plaintiff, is to amend the prayer in view of
demolition of sun shed by the defendant. This factum was very much available,
when the suit was filed and the plaintiff had not filed any police complaint or had
not averred anything with regard to the plea, who had knowledge that the
respondent/defendant had indulged in demolishing the sun shed.
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9.The judgments cited supra by the learned Counsel for the respondent are
all deal with limitation, where the limitation could be condoned in the interest of
justice and when the main prayer of the suit is not altered or when new facts are
surfaced. Admittedly, when the respondent/plaintiff was aware of the all the facts,
at the time of instituting the suit, the only point to be considered is with regard to
prejudice to be caused in view of the allowing of amendment petition. As the
nature of the suit not to be affected and if such amendment is not permitted, it will
only result in multiplicity of suits.
10.In view of the same, the order passed by the learned District Munsif
cum Judicial Magistrate, Natham, in I.A.No.204 of 2019 in O.S.No.65 of 2006,
dated 15.12.2020, permitting the amendment to be carried out needs no
interference. As the suit is of the year 2006, the trial Court is directed to conclude
the entire trial within a period of one year from the date of receipt of a copy of
this order.
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11.In the result, the Civil Revision Petiton is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
18.12.2024
Internet :Yes/No
NCC :Yes/No
Index :Yes/No
cmr
To
The District Munsif cum Judicial Magistrate, Natham.
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N.SENTHILKUMAR, J.
cmr Order made in C.R.P.(MD)(PD)No.230 of 2021 18.12.2024 _______________ Page 16 of 16 https://www.mhc.tn.gov.in/judis