Madras High Court
E. Ramasamy Gounder vs M. Selvaraj on 3 September, 2010
Author: K. Mohan Ram
Bench: K. Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:3.9.2010 C O R A M THE HONOURABLE MR. JUSTICE. K. MOHAN RAM C.R.P.PD.No.1991 of 2010 and M.P.No.1 of 2010 E. Ramasamy Gounder .....Petitioner Vs 1.M. Selvaraj 2.V. Manoharan .. Respondent Petition is filed under Article 227 of the Constitution of India against the order, dated 19.2.2010 passed in I.A.No.176 of 2008 in O.S.No.583 of 1997 on the file of the Principal Subordinate Court, Salem. For Petitioner : M/s.D. Shivakumaran For Respondents : Mr.T.R. Rajagopalan, Senior Counsel For Mr. D. Ravichander O R D E R
The first defendant in O.S.No.583 of 1997 on the file of the Principal Sub Court, Salem, is the petitioner in the above C.R.P.
2. In the said suit, the first respondent/plaintiff is seeking the following reliefs:-
a. Declaring the plaintiffs title to the suit property.
b. Permanently injuncting the first defendant and his men from interfering with the peaceful possession and enjoyment of the suit property and trespass into the suit property or to create any encumbrance over the same or in the alternative, direct the first defendant to deliver vacant possession of the suit property to the plaintiff within such time as this Hon'ble Court may fix and in default permit the plaintiff to execute the decree and recover possession.
3. In the suit, the fist defendant is claiming title and possession to the suit property under a decree passed in O.S.No.800 of 1990 on the file of the Sub Court, Salem.
4. The said suit in O.S.No.800 of 1990 was filed on the basis of a sale agreement purportedly executed between P. Sengottu Velu Gounder and the first defendant on 27.2.1984 and an endorsement found in the sale agreement.
5. It is the case of the first respondent that as a third party to the suit in O.S.No.800 of 1990 he pleaded in the plaint that the decree was passed on the basis of a false, fraudulent and created agreement of sale between P.Sengottu Velu Gounder and the first defendant.
6. The first respondent filed I.A.No.116 of 2008 to send for the original sale agreement from the file of the first Additional Subordinate Court, Salem in O.S.No.800 of 1990 to the file of the Principal Sub Court. The said I.A. was allowed on 11.3.2008. On 24.3.2008 the first respondent filed a memo seeking a direction of the court to permit him to inspect the original agreement, dated 27.2.1984 and the memo was allowed on 24.3.2008. Thereafter, he inspected the document along with his advocate and the advocate for the first defendant. On inspection, he was shocked to find the dissimilarities in the signatures of P. Sengottu Velu Gounder in the sale agreement and the endorsement, dated 20.9.1986 and therefore, the sale agreement and the endorsement are fabricated documents created by forging the signatures of P.Sengottu Velu Gounder.
7. In such circumstances, the first respondent has filed I.A.No.176 of 2008 seeking to amend the plaint, since he had not pleaded that the signatures of P. Sengottu Velu Gounder in the sale agreement, dated 27.2.1984 and the endorsement, dated 20.9.1986, are forged ones. The said petition was opposed by the petitioner herein, inter alia contending that the application has been filed belatedly in the suit filed in the year 1997 and that too when P.W.1 is in the witness box. The learned counsel contended that earlier two amendment petitions came to be filed by the first respondent and the same were also allowed. The first respondent is seeking piecemeal amendment of the plaint which cannot be allowed.
8. On a consideration of the rival contentions, the Court below allowed the petition.
9. Being aggrieved by that the petitioner is before this Court.
10. Heard both.
11. The learned counsel for the petitioner submitted that the amendment petition allowed by the court below would cause serious and grave prejudice to the petitioner; the plaintiff is improving his case in instalments making serious departure from the case originally put forward by the first respondent which amounts to introduction of a fresh case, which is impermissible in law.
12. The learned counsel further submitted that proposed amendment drastically changes the nature of the suit and introduce a new case. According to the learned counsel for the petitioner a comparison of the pleadings, which is originally made and the one subsequently re-introduced are mutually contradictory and mutually destructive and therefore, the amendment could not be ordered.
13. The learned counsel submitted that when P.W.1 is in the witness box, the petition is filed to prolong the proceedings and therefore, the Court below has erred in allowing the petition.
14. In support of his contentions, the learned counsel relied upon the various decisions of the Apex Court.
15. In the decision reported in (2006) 6 SCC 498 (Baldev Singh and others vs. Manohar Singh and another), the Apex Court has laid down as under:-
"That apart, it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement."
16. In the decision reported in (2007) 5 SCC 602 (Usha Balasheb Swami and others vs. Kiran Appaso Swami and others), while considering the scope of Order 6 Rule 17 C.P.C., in the matter of amendment of admission in the written statement, the Apex Court has held that a party cannot wriggle out of an admission by seeking amendment, but however, the admission can be explained and it would be permissible to add a rider and / or provision to the admission while keeping admission intact.
17. In the decision reported in (2008) 14 SC 364 (Rajkumar Gurawara (Dead) through LRs. vs. S.K. Sarwagi and Company Private Limited and Another), the Apex Court has laid down as follows:-
"It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation."
18. In the decision reported in (2008) 5 SCC 117 ( Chander Kanta Bansal vs. Rajinder Singh Anand), the Apex Court has laid down as under:-
"15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restriction. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application.
16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006) the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care, caution,; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Eds.13-A) "due diligence " in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs.
17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so-called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness."
19. Countering the said submissions, the learned Senior counsel for the respondents submitted that the amendment now sought to be introduced in the plaint will not in any way change the cause of action or the character and nature of the suit.
20. According to the learned Senior Counsel in paragraph 4 of the original plaint itself, it is stated as under:-
"4. The 1st defendant is a third party and has got nothing to do with the suit property. The plaintiff on 9.11.1997 while making arrangements to put up a construction in the suit property, the 1st defendant claimed a right over the suit property on the ground that he has got a sale deed executed by the Court in pursuance of an ex parte specific performance decree passed in O.S.No.800 of 1990 filed against one Sengottu Vel Gounder on the basis of a false, fraudulent and created agreement of sale between Sengottuvel Gounder and 1st defendant. The plaintiff and the 2nd defendant was not a party to the said suit in O.S.No.800 of 1990. the plaintiff submits that the 1st defendant is a close relative of the said Sengottuvel Gounder and the suit and decree passed in O.S.No.800 of 1990 was a collusive one."
21. Pending the present suit, as the first respondent was not a party to the suit in O.S.No.800 of 1990, he filed I.A.No.116 of 2008 to send for the original sale agreement, dated 27.2.1984 from the file of the Additional Sub Court, Salem in O.S.No.800 of 1990 to the file of the Principal Sub Court and the petition was allowed and the document was received in the above suit. The first respondent filed a memo seeking permission of the Court to permit him to inspect the original agreement and the memo was allowed on 24.3.2008. Thereafter, he along with his advocate and the advocate for the first defendant have inspected the document in the presence of the officer of the Court.
22. According to the learned Senior Counsel only at that stage, the first respondent found out the dissimilarities in the signatures of P.Sengottu Velu Gounder in the sale agreement and the endorsement, dated 20.9.1986 and therefore, even the sale agreement and the endorsement are fabricated documents by forging the signature of P.Sengottu Velu Gounder.
23. The learned Senior Counsel submitted that the above particulars have not been specifically stated in the plaint though it has been stated that the decree has been obtained on the basis of a false and fraudulent and created agreement of sale and the decree passed was a collusive one.
24. The learned Senior Counsel submitted that the amendment sought to be introduced is only to elucidate the existing pleading made by the first respondent and it will not amount to introducing a new further case or new cause of action since already similar pleas have been raised in the plaint and the amendment only seeks to further elucidate the same by supplying necessary particulars and therefore, it cannot be said that they are mutually contradictory and destructive.
25. In support of the contention, the learned Senior Counsel relied on the decision reported in (2010) 4 SCC 518 ( State of Maharastra vs. Hindustan Construction Company Limited).
26. In the said decision, the Apex Court, in paragraphs 16 and 17 has laid down as under:-
"16. Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other decision, such discretion has to be exercised consistent with settled legal principles. In Ganesh Trading co. v. Moji Ram, this Court stated: (SCC p.93, para 2).
"2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."
17. Insofar as the Code of Civil Procedure, 1908 (for short "CPC") is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."
27. Basing reliance on the decision reported in (2007) 5 SCC 602 (Usha Balashaheb Swami and others vs. Kiran Appaso Swami and others), the learned Senior Counsel submitted that this Court may not interfere with the order of the lower court allowing the application for amendment of the plaint when the trial Court has exercised its discretion in allowing the amendment of the plaint on consideration of the correct legal principles and the material on record.
28. I have considered the submissions made on either side and perused the materials available on record.
29. It is not in dispute that the suit is of the year 1997. It is also not in dispute that earlier the plaintiff had filed two petitions seeking amendment of the plaint and the present application, namely, I.A.No.176 of 2008 is the third application filed by the first respondent to amend the plaint. It is also not in dispute that the present application has been filed when P.W.1 is in the witness box.
30. In this context, it has to be seen as to whether the allowing of the amendment sought for by the first respondent can be justified or not.
31. In the plaint, it is the case of the first respondent that he purchased the suit property on 29.8.1991 from the second defendant for a valid consideration through a registered sale deed and was in possession of the same and he is in absolute possession. While so, on 9.11.1997, the plaintiff was making arrangements to put up a construction in the suit property, the first defendant claimed a right over the suit property on the ground that he has got a sale deed in pursuance of the specific performance decree passed in O.S.No.800 of 1990 filed against the Sengottu Vel Gounder on the basis of a false, fraudulent and created agreement of sale between Sengottuvel Gounder and the first defendant. It has been further stated that the decree passed in O.S.No.800 of 1990 was a collusive one. This is the specific case of the first respondent/plaintiff in the suit.
32. Thus it is seen that the first respondent claiming title to the suit property on the basis of his purchase from the second defendant and the first respondent is challenging the decree obtained by the first defendant against Sengottuvel Gounder. The decree in O.S.No.800 of 1990 is attacked on the ground that the same is obtained fraudulently by creating the agreement of sale between the Sengottuvel Gounder and the first defendant.
33. Pending the suit, as stated above, the first respondent has filed I.A.No.116 of 2008 to send for the original sale agreement dated 27.2.1984 from the file of the Additional Sub Court, Salem in O.S.No.800 of 1990 and the application was allowed by order, dated 11.3.2008 and a memo has been filed on 24.3.2008 seeking permission of the Court to permit him to inspect the original agreement, dated 27.2.1984. Thereafter, he along with his advocate and the advocate for the first defendant have inspected the document in the presence of the officer of the Court.
34. According to the first respondent, only at that stage, he found out the dissimilarities in the signatures of P.Sengottu Velu Gounder in the sale agreement and the endorsement, dated 20.9.1986 and therefore, even the sale agreement and the endorsement are fabricated documents by forging the signature of P.Sengottu Velu Gounder.
35. The aforesaid details, namely, regarding the dissimilarities in the signatures of P. Sengottu Velu Gounder in the sale agreement and the endorsement have not been pleaded in the original plaint. But what has been pleaded in para 4 is that the ex parte decree had been obtained on the basis of a false, fraudulent and created agreement of sale between Sengottuvel Gounder and the first defendant. Therefore, only to elucidate the pleadings already raised in the plaint the aforesaid material particulars were sought to be introduced by way of amendment.
36. It has to be seen as to whether by allowing the amendment now sought to be made, a new cause of action will arise or will it in any way change the nature of the suit or any prejudice will be caused to the first defendant or the relief sought for is in any way barred by limitation.
37. As rightly contended by the learned Senior Counsel though there are pleadings in para 4 of the original plaint, which has been extracted above, that the decree has been obtained on the basis of a false and fraudulent and created agreement of sale and the decree passed was a collusive one, the above said particulars regarding the dissimilarities in the signature of P.Sengottuvel Gounder have not been specifically stated in the plaint.
38. In the considered view of this court, the further elucidation of the facts will not amount to give rise to a new cause of action or change the nature and character of the suit and no right of the first defendant will be affected by allowing the amendment and therefore, the Court below is right in allowing the amendment petition.
39. In the decisions relied on by the learned counsel for the petitioner, the principles have been laid down interpreting the provisions contained in Order 6 Rule 17 C.P.C. But in the very same decisions, it has been laid down that it is now well settled that an amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement.
40. In this case, by allowing the amendment, the pleadings are not altered materially or no cause of action is substituted. Therefore, the contention of the learned counsel for the petitioner cannot be countenanced.
41. In (2010) 4 SCC 518, the Apex Court has laid down that the Pleadings and particulars are required to enable the court to decide true rights of the parties in trial. Amendment in the pleadings is a matter of procedure. Grant or refusal thereof is in the discretion of the court. But like any other decision, such discretion has to be exercised consistent with settled legal principles.
42. In the very same decision, the decision of the Apex Court reported in (1978) 2 SCC 91 (Ganesh Trading Co. v. Moji Ram) has been referred to, wherein, it has been down as under:-
"2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take."
43. Thus, Order 6 Rule 17 C.P.C. provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
44. As has been laid down by the Apex Court in the aforesaid decision the provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
45. In the light of the aforesaid decisions, the facts and circumstances of the case on hand to be are considered.
46. In the original plaint the plaintiff has pleaded that ex parte specific performance decree was passed in O.S.No.800 of 1990 filed against one Sengottu Velu Gounder on the basis of a false, fraudulent and created agreement of sale between Sengottuvel Gounder and the first defendant and it has also been pleaded that the suit was decreed because of the collusion between them. Thus the pleadings did not contain the particulars of the details relating to the fraud as alleged and how the agreement was created and only to elucidate the same and that too after coming to know about the alleged forgery on inspection made by the first respondent, the present petition has been filed. So, the amendment now sought to be introduced will only further elucidate the existing pleadings and it will not amount to introduction of new facts or new cause of action and therefore, in the considered view of this Court, the allowing of the amendment neither give rise to the new cause of action nor change the nature and character of the suit.
47. The reasons assigned by the Court below are based on correct principles of law and this Court is not inclined to interfere with the order passed by the Court below.
Accordingly, the revision fails and the same is dismissed. No costs. Connected M.P.is also dismissed.
rnb 3.9.2010
Index: Yes/No
Internet : Yes/No
To
The Principal Sub Court, Salem.
K. MOHAN RAM, J.
RNB
C.R.P.PD.No.1991 OF 2010
and
M.P.No.1 of 2010
DATED:3.9.2010