Madras High Court
K.Thangiah Nadar vs N.Jayamurugan on 19 March, 2014
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.03.2014 CORAM THE HONOURABLE MR.JUSTICE T.MATHIVANAN C.R.P.(PD) (MD) No.189 of 2014 and C.R.P.(PD) (MD) No.190 of 2014 and M.P.(MD) No.1 of 2013 K.Thangiah Nadar ... Petitioner in both C.R.Ps -vs- N.Jayamurugan ... Respondent in both C.R.Ps PRAYER (in C.R.P.(PD) (MD) No.189 of 2014) Civil Revision Petition is filed, under Article 227 of the Constitution of India, against the fair and decreetal orders, dated 12.11.2013 and made in I.A.No.1069 of 2013 in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam. PRAYER (in C.R.P.(PD) (MD) No.189 of 2014) Civil Revision Petition is filed, under Article 227 of the Constitution of India, against the fair and decreetal orders, dated 12.11.2013 and made in I.A.No.1070 of 2013 in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam. :COMMON ORDER
These two memorandums of civil revision petitions have been directed against the fair and decreetal orders dated 12.11.2013 and made in I.A.Nos.1069 & 1070 of 2013 in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam.
2. The revision petitioner in both the civil revision petitions is the defendant in the suit in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam, whereas the respondent herein is the plaintiff in the said suit.
3. It is revealed from the records that the respondent/plaintiff had filed the suit in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam, seeking the relief of declaration of his title in respect of the suit first item of the properties and also perpetual injunction, as against the revision petitioner/defendant. The revision petitioner/defendant had contested the suit by way of filing his written statement in the month of June, 2012. During the pendency of the suit, the respondent/plaintiff had taken out two interlocutory applications, under Section 151 of the Code of Civil Procedure, viz., I.A.No.1069 of 2013 to reopen the suit and I.A.No.1070 of 2013 to amend the plaint, delete the first item of the property, incorporate the word 'Suit Property', delete the second item of the property and to incorporate the word 'Suit Property' in the prayer portion. These two interlocutory applications were resisted by the revision petitioners/defendants. However, the learned Trial Judge, by Order dated 12.11.2013, had proceeded to allow these two interlocutory applications.
4. Having been aggrieved by the said impugned fair and decreetal orders dated 12.11.2013, the revision petitioner/defendant has preferred these two civil revision petitions.
5. When these civil revision petitioners are taken up for hearing, Mr.S.Subbiah, learned counsel appearing for the revision petitioner/defendant, has brought to the notice of this Court that in sofar as the suit in O.S.No.126 of 2013 is concerned, the process of recording of evidence, on behalf of both sides, was completed and both sides' arguments were also heard and thereafter, the suit was posted for pronouncing Judgment. Only under this circumstance, the respondent/plaintiff had taken out the above said two interlocutory applications to reopen the suit and also to amend the plaint.
6. The learned counsel has also submitted that two items of properties had been described in the suit schedule. While the cause of action in respect of the suit first item alone was available, there was no cause of action in respect of the suit second item. He has also argued that the respondent/plaintiff had filed the above suit seeking the relief of declaration of his title in respect of the suit first item and also for permanent injunction. He has also drawn the attention of this Court to the averments made in the affidavit filed in respect of the interlocutory application in I.A.No.1070 of 2013, wherein the respondent/plaintiff has sought the prayer to delete the first item of the property from the body of the plaint as well as the prayer portion, instead to incorporate the word 'Suit Property'. Similarly, he has also sought the permission of the Court to delete the second item from both the body as well as prayer portion of the plaint and to incorporate the word 'Suit Property'.
7. The apprehension of Mr.S.Subbiah, the learned counsel appearing for the revision petitioner/defendant is that originally the respondent/plaintiff had sought the relief of declaration in respect of the first item alone and now by way of amending the plaint, he had sought the leave of the Court to delete the first item and to incorporate the word 'Suit Property'. Similarly, he had also sought leave to delete the 'Second Item' and to incorporate the word 'Suit Property'. Therefore, according to Mr.S.Subbiah, learned counsel appearing for the revision petitioner/defendant, the respondent/plaintiff wanted to delete the first item of the property and to maintain the prayer of declaration in respect of the second item, which was purchased by him from the revision petitioner/defendant in respect of which no cause of action is available in the plaint and since no cause of action has been shown in the plaint in respect of the second item, the respondent/plaintiff ought not to have been permitted to amend the plaint, because, if the amendment is allowed to be carried out, then the question of limitation would arise and the entire structure of the suit would be changed.
8. In support of his contention, the learned counsel has placed reliance upon the following decisions:
i. Revajeetu Builders & Developers v. Narayanaswamy & Sons, reported in (2009) 8 MLJ 907 (SC);
ii. Meenambal v. C.Senthilkumar, reported in (2009) 2 MLJ 227; and iii. S.Rajendran v. K.Kanniah, reported in (2010) 3 MLJ 215.
9. In Revajeetu Builders & Developers' case, first cited supra, the Honourable Apex Court has held that in Court's considered view, Order 6 Rule 17 is one of the important provisions of the C.P.C, but there is no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian Courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner.
10. While observing the above proposition, the Honourable Apex Court has enumerated the following conditions to be satisfied by the person, who seeks permission of the Court to amend the plaint:
i. The first condition to be satisfied before the amendment can be allowed by the Court is, whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or in-justice which is likely to be caused to other side.
ii. For unnecessary delay and inconvenience, the opposite party must be compensated with costs. The imposition of costs is an important judicial exercise particularly when the Courts deal with the cases of amendment. The costs cannot and should not be imposed arbitrarily. iii. While deciding applications for amendments, the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
11. In the decision second cited supra viz., Meenambal's case, the learned Single Judge of this Court has held that:
"An amendment of the plaint which is sought for when it purports to open a different or additional approach to the facts already stated and changes the nature of the claim in the plaint or sets up a new case ought not to be allowed."
12. In the decision third cited supra viz., S.Rajendran's case, the learned Single Judge of this Court has observed that:
"When the petitioner neither pleaded nor established that he could not have moved the petition seeking amendment in spite of diligent efforts taken by him prior to the commencement of the trial, the petition seeking amendment of the plaint is liable to be dismissed."
13. On the other hand, Mr.T.A.Ebenezer, learned counsel appearing for the respondent/plaintiff has argued that the impugned orders of the Trial Court had been justified by the learned Trial Judge and therefore it did not require any interference of this Court.
14. On coming to the instant case on hand, it is pertinent to note here that the suit stood posted for pronouncement of Judgment after hearing the arguments of both sides. Only at that stage, the respondent/plaintiff had taken out the above said applications to reopen the suit as well as to amend the plaint.
15. In this connection, it is imperative on the part of this Court to extract Rule 17 to Order 6 of the Code of Civil Procedure along with it's proviso. Rule 17 to Order 6 C.P.C., enacts as under:
"R.17. Amendment of pleadings.- 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:
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."
16. On a close reading of the provisions of Rule 17 to Order VI C.P.C., it is made clear that it contains two portions. The first portion is discretionary in nature, whereas the second portion is mandatory in nature. In the first portion, the Legislative gives the discretionary power to the Court saying that the Court, may at any stage of the proceedings, allow either party to alter or amend his pleadings. In the second portion, it mandates that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Therefore, it is made clear that all such amendments shall be made if it is necessary for the purpose of determining the real questions in controversy between the parties.
17. Rule 17 to Order VI C.P.C., has been substituted by C.P.C.(Amendment) Act, 2002 (22 of 2002). Section 7 (w.ef. 01-07-2002) vide Notification S.O.604(E), dated 06.06.2002. Earlier, Rule 17 omitted by the CPC (Amendment) Act, 1999 (not enforced), before its omission stood as under:
'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.'
18. The proviso to Rule 17 to Order VI C.P.C., contemplates that no application for amendment shall be allowed after the trial has commenced unless the Court has to come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
19. The main object of Rule 17 is that the Courts should get at and try the merits of the case that comes before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties without causing injustice to the other side.
20. In Haridas Girdharidas v. Vasadaraja Pillai, reported in AIR 1971 SC 2366, the Apex Court has held that the rule of conduct of the Courts is that 'however negligent or careless the first omission may have been, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. The cardinal principle envisaged in this decision is that if the amendment is made without injustice to the other side, it can be allowed.
21. It may also be relevant to make reference to the decision in Laxmidas v. Nanabhai, reported in AIR 1964 SC 11(18), wherein the Apex Court has observed that:
"It is no doubt true that save in exceptional cases, leave to amend under Order VI, Rule 17 of the Code will ordinarily be refused when the effect of the amendment would be to take away from a party a legal right which had accrued to him by lapse of time. But this rule can apply only where either fresh allegations are added or fresh reliefs are sought by way of amendment. Where, for instance, an amendment is sought which merely clarifies an existing pleading and does not in substance add to or alter it, the question of bar of imitation is not one of the questions to be considered in allowing such clarification of a matter already contained in the original pleading."
Besides this, the Apex Court has also enumerated the following five principles, while dealing with the petition to amend the plaint under Order VI Rule 17 C.P.C:
(i) where it introduces a totally new case or necessitates a fresh trial or letting in of fresh evidence;
(ii) where the amendment will lead to needless complications;
(iii) where the plaintiff is negligent or has taken his stand deliberately on a certain basis;
(iv) where the plaintiff has had several opportunities to apply for amendment but has slept over his right for a very long time.
(v) Amendment of written statement by substituting certain paragraphs, introducing entirely different new case and seeking to displace the plaintiff and cause him irretrievable prejudice, from admission made by defendants in written statement, is to be rejected. [Heeralal v. Kalyan Mal (AIR 2000 SC 3577(I)]"
22. As rightly observed by the Honourable Apex Court, Order VI Rule 17 is one of the important provisions of the Code of Civil Procedure. But, on the other hand, this is one of the most misused provision of the Code for dragging the proceedings indefinitely and this is a kind of dilatory tactics to protract the proceedings, which cannot be allowed.
23. The learned counsel appearing for the respondent/plaintiff has placed reliance upon the the decision in Om Prakash Gupta v. Ranbir B.Goyal, reported in AIR 2002 SC 665. It is relating to amendment of plaint, under Order VI Rule 17 of the Code of Civil Procedure, with reference to subsequent events and therefore the Honourable Apex Court has observed that such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.
24. In the instant case, the amendment is sought for with regard to the deletion of first item and to describe the second item as the suit property, in respect of which, no cause of action is available. When there is no cause of action in respect of the suit property for the institution of the suit to maintain the prayer of declaration, the provisions of Order VI Rule 17 C.P.C., cannot be allowed to be mis-used. As the prime two ingredients viz., the amendment, which is sought for, will not injustice to the other parties and such amendment is necessary for the purpose of determining the real question in controversy, are absent, the question of granting of permission does not arise.
25. Keeping in view of the above facts, this Court finds that the memorandums of civil revision petitions are deserved to be allowed and the impugned orders are liable to be set aside.
26. In the result, the civil revision petitions are allowed and the fair and decreetal orders dated 12.11.2013 and made in I.A.Nos.1069 & 1070 of 2013 in O.S.No.126 of 2013, on the file of the learned District Munsif, Srivaikundam, are set aside and the interlocutory applications in I.A.Nos.1069 and 1070 of 2013 are dismissed. The learned District Munsif, Srivaikundam, is directed to dispose of the suit in O.S.No.126 of 2013, as early as possible, preferably within a period of four weeks, from the date of receipt of a copy of this Order, without any further delay. Consequently, connected miscellaneous petition is closed. No costs.
To The District Munsif, District Munsif Court, Srivaikundam.