Madras High Court
Shanmuga Nadar vs S.Kamala 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.1432 of 2011 and M.P.(MD) No.1 of 2011 Shanmuga Nadar ... Petitioner vs 1.S.Kamala 2.Thillaiammal 3.Bama @ Pitchai 4.Selvi 5.Chitra 6.Sivasri ... Respondents PRAYER Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 10.06.2011 and made in I.A.No.301 of 2011 in O.S.No.53 of 2009, on the file of the learned Additional District Munsif, Karaikudi. !For Petitioner ... Mr.M.Thirunavukkarasu ^For Respondents ... Mr.R.Sundar Srinivasan for R2 to R6 R1-Ex parte :ORDER
This memorandum of civil revision petition has been directed against the fair and decreetal orders dated 10.06.2011 and made in I.A.No.301 of 2011 in O.S.No.53 of 2009, on the file of the learned Additional District Munsif, Karaikudi.
2. The revision petitioner herein is the plaintiff in the suit in O.S.No.53 of 2009, on the file of the learned Additional District Munsif, Karaikudi, whereas the respondents herein are the defendants in the said suit.
3. It is revealed from the records that the revision petitioner/plaintiff has filed a suit in O.S.No.53 of 2009, on the file of the learned Additional District Munsif, Karaikudi, as against the respondents/defendants, seeking the relief of perpetual injunction to restrain the respondents/defendants from in anyway interfering with the peaceful possession and enjoyment of the revision petitioner/plaintiff as well as the other co-sharers of the suit property.
4. The first respondent remained ex parte and the other respondents viz., respondents 2 to 6 have contested the suit by filing their respective written statements. Trial has already been commenced and after the completion of recording evidence on the part of revision petitioner/plaintiff two witnesses were examined on behalf of the respondents/defendants and the sixth respondent/defendant has to be cross-examined. Under this circumstance, the revision petitioner/plaintiff has taken out an interlocutory application in I.A.No.301 of 2011, under Order VI Rule 17 and Section 151 of the Code of Civil Procedure, seeking permission to amend the plaint as detailed in the interlocutory application. This interlocutory application was vigorously contested by the respondents 2 to 6/defendants and after hearing both sides, the learned Additional District Munsif, Karaikudi, has dismissed the interlocutory application, on 10.06.2011, on the ground that if the amendment, as sought for the revision petitioner/plaintiff, was allowed to be carried out, the entire cause of action of the suit would be changed and further the learned Trial Judge has found that no amendment was permissible, under Order VI Rule 17 of the Code of Civil Procedure, after the commencement of trial.
5. Having been aggrieved by the impugned order dated 10.06.2011, the revision petitioner/plaintiff has come forward with this memorandum of civil revision petition.
6. Heard Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioner/plaintiff as well as Mr.R.Sundar Srinivasan, learned counsel appearing for the respondents 2 to 6/defendants and perused the materials available in the typed set of papers.
7. Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioner/plaintiff would contend that the suit property was originally belonged to the paternal ancestors of the revision petitioner/plaintiff and that in the year 1950, his father and the father-in-law of the second respondent/second defendant had entered into a registered partition deed and that the suit property was the third item of A & B Schedule property in the partition deed.
8. The learned counsel has also argued that the revision petitioner/plaintiff had inherited 18 + Cents alone out of the said suit property, which was the third item of A & B Schedule property described in the partition deed, which was effected in the year 1950 and therefore, the revision petitioner/plaintiff had got every right over the western half of the suit property. Further, in the suit schedule, the revision petitioner/plaintiff had claimed 15,260 sq.ft., but, now, he had restricted his claim to 18 + Cents i.e., to the extent of 8184.5 sq.ft. Therefore, he has urged to set aside the impugned order and to allow this revision petition permitting the revision petitioner/plaintiff to amend the plaint.
9. On the other hand, Mr.R.Sundar Srinivasan, learned counsel appearing for the respondents 2 to 6/defendants has submitted that the trial was already commenced and if the amendment, as sought for by the revision petitioner/plaintiff, was ordered to be carried out, the entire cause of action of the original suit would be changed and since the reduction in the extent of the property had been claimed by the revision petitioner/plaintiff, the question with reference to boundary and the identification of the property would definitely arise and further he has argued that after the commencement of trial, no such amendment could be permitted to be carried out in the plaint and in order to fill up the lacuna, the revision petitioner/plaintiff had filed the said interlocutory application seeking permission to amend the plaint, which could not be allowed to exist.
10. In this connection, it is imperative on the part of this Court to extract the provisions of 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."
11. On a careful 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. The first portion 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.
12. 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.'
13. 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. 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.
14. 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.
15. It is also pertinent 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 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 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)]"
16. On coming to the instant case on hand, it is apparent that the trial has already been commenced. Now, the revision petitioner/plaintiff wanted to amend the plaint by reducing the area with reference to 18 + Cents, seeking title through a partition, which took place in the year 1950, which has been rightly rejected by the Trial Court as the trial has already been commenced. With reference to the connotation 'at any stage', as it is seen in the first portion of the provisions of Rule 17 to Order VI C.P.C., it is to be stated that amendment of plaint can be allowed at any stage. In the present suit, the revision petitioner/plaintiff's side evidence was already completed and two witnesses were examined on behalf of the respondents/defendants. At this stage, the connotation 'at any stage' can not be applied in this case, for which the proviso to Rule 17 to Order VI C.P.C., comes into operation, which creates an embargo on the Court that no application for amendment can 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.
17. In this connection, Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioner/plaintiff is not able to convince the Court saying that in spite of due diligence, the revision petitioner/plaintiff could not have raised the matter before the commencement of trial. Therefore, it is presumed from the available materials that already the revision petitioner/plaintiff knew the existence of fact. However, he simply remained and slept over his right without exercising his due diligence and therefore for the latches on his part, he has to suffer and if the amendment is allowed to be carried out, it would certainly cause injustice to the other side. As decided in Haridas Girdharidas's case (cited supra), the settled principle is that amendment can be made without injustice to the other side and if there is likelihood of causing injustice to the other side, then the amendment cannot be allowed.
18. Keeping in view of the above facts, this Court is of the view that the relief sought for by the revision petitioner/plaintiff, to amend the plaint, cannot be granted and therefore the revision petition is liable to be dismissed.
19. In the result, this civil revision petition is dismissed and the impugned fair and decreetal order dated 10.06.2011 and made in I.A.No.301 of 2011 in O.S.No.53 of 2009, on the file of the learned Additional District Munsif, Karaikudi, are confirmed. Consequently, connected miscellaneous petition is closed. No costs.
krk To The Additional District Munsif, Additional District Munsif Court, Karaikudi.