Madras High Court
Bakkiyalakshmi vs Thulasimani on 27 June, 2012
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 27.06.2012 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN C.R.P.(PD) NO.2259 OF 2012 and M.P.NO.1 OF 2012 1.Bakkiyalakshmi 2.Ponnusamy .. Petitioners Versus 1.Thulasimani 2.A.N.Chandrasekaran 3.A.Muthusamy 4.K.Ravichandran .. Respondents Prayer: This Revision Petition is filed against the orders dated 01.02.2012 in I.A.No.1964 of 2010 in O.S.No.54 of 2002 on the file of the learned District Munsif Court, Palladam. For Petitioner: Mr.S.I.Muthiah For Respondents: Mr.T.V.Ramanujam, SC for Mr.C.Jagadish ORDER
By consent, the Civil Revision Petition is taken up for disposal at the admission stage.
2. This Revision Petition has been filed, challenging the order dated 01.02.2012 in I.A.No.1964 of 2010 in O.S.No.54 of 2002 on the file of the learned District Munsif Court, Palladam, whereby and whereunder, the petition filed under Order 6 Rule 17 CPC for amending the plaint came to be allowed.
3. The revision petitioners are the defendants in the suit in O.S.54 of 2002, filed by the first respondent herein, for grant of permanent injunction, restraining the petitioners from entering, encroaching or interfering with the peaceful possession of the and enjoyment of the suit schedule mentioned property and to pay costs. According to the respondents/plaintiffs, they have purchased the suit property from one Thiru Deivasigamani who is the General Power of Attorney of the first petitioner/first defendant on 6.1.2000 and thereby they became absolute owners of the property and they have been in peaceful possession and enjoyment of the property. While so, the petitioners/defendants who are the adjacent owner of the property, attempted to trespass the suit property and interfere with the peaceful possession and enjoyment of the plaintiffs. In such circumstances, the plaintiffs have come forward with the suit against the defendants. Pending the suit, the first respondent has filed an interlocutory application in I.A.No.339 of 2002 for grant of temporary injunction and the same was dismissed on the ground that the first respondent failed to prove the possession over the suit property. While so, pending the suit, the first respondent sold the suit property to the respondents 2 to 4 who were not parties to the suit, but they were subsequently impleaded as parties/plaintiffs 2 to 4. Since the interlocutory application for temporary injunction was dismissed, the plaintiffs have come forward with the present I.A.No.1964 of 2010, seeking for amendment of the plaint to the effect that they are the subsequent purchasers of the suit property and therefore, sought for declaration of title and recovery of possession since according to the plaintiffs, subsequent to the suit, the defendants trespassed the suit property and took the possession.
4. This application was resisted by the petitioners/defendants by filing a counter affidavit before the Court below, stating that the alleged sale deed dated 6.10.2006 was hit lis pendense and no details regarding the existing features of the property were mentioned in the petition as the defendants had already made constructions therein and the description of property given in the plaint and the alleged sale deed is incorrect. There were dwelling house, well, borewells, service connection, gas plant, standing structures, etc. were available in the suit property. As per the report of the Commissioner, the suit property is not a vacant land as alleged and described in the plaint. Even though the power of attorney dated 25.3.1999, the sale deeds 6.10.200 and 26.10.2006 were created, the possession of the suit property is always with the defendants and there is no necessity for the defendants to trespass the same and took possession illegally. Therefore, the defendants denied the title of the plaintiffs over the suit property and hence, no amendment can be allowed.
5. On consideration of entire facts and circumstances of the case, the trial Court has come to the conclusion that the amendment petition was moved before the commencement of trial and it should be viewed liberally and therefore, allowed the application. The trial Court has followed the decision of the Hon'ble Supreme Court reported in "(2002) 3 MLJ 160 (SC) (Sampath Kumar versus Ayyakanny and another)". Further, it has been observed by the trial Court that the prayer for declaration of title and delivery of possession shall be deemed to have been made on the date on which the interlocutory application was filed, i.e.26.11.2010. Aggrieved by the same, this revision has been filed.
6. Mr.S.I.Muthaiah, learned counsel appearing for the petitioner would contend that the trial Court has erroneously allowed the amendment without there being materials available on record and the prayer of amendment is outside the scope and purview of Order 6 Rule 17 CPC. He would further contend that the trial Court has failed to consider that the petitioners have been in possession and enjoyment of the property and the respondents have failed to prove their possession and therefore, the amendment cannot be allowed.
7. On the other hand, Mr.T.V.Ramanujam, learned senior counsel appearing for the respondents would contend that on analyzing the entire facts and circumstances of the case as well as the principles laid down by the Hon'ble Supreme Court, the trial Court has rightly allowed the prayer for amendment in order to avoid multiplicity of proceedings the since the amendment is sought for before commencement of trial and it should be viewed liberally. Therefore, in order to protect the interest of the respondents/plaintiffs, the trial Court has allowed the amendment with a specific observation that the said amendment shall be deemed from the date on which, the interlocutory application has been made. Therefore, the learned senior counsel submitted that the order of the trial Court is well founded and no interference can be required and hence, sought for dismissal of the revision petition.
8. Admittedly, the plaintiffs have filed a suit for permanent injunction, restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property and initially though there was interim injunction in favour of the plaintiffs, however, subsequently, it was vacated on finding that the plaintiffs were not in possession of the suit property. Therefore, taking note of the finding of the trial Court that the plaintiffs were not in possession of the property, the plaintiffs have come forward to amend the prayer for declaration and recovery of possession of the suit property.
9. Order VI Rule 17 CPC enables the parties to make amendment of the plaint, which reads as under:
"17.Amendment of pleadings The Court may at any state 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."
10. Therefore, the purpose and object of Order VI 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.
11. In the above legal background, this Court once again recapitulates the factual details. The respondents/plaintiffs have initially come forward with mere prayer of permanent injunction and however, subsequent to the filing of the suit, since the petitioners/defendants trespassed the suit property and took the possession and moreover, the trial Court gave a finding while dismissing the interlocutory application for temporary injunction, which made necessary for the plaintiffs to come forward with amendment application. It is also to be noted that by the time the amendment was allowed, no trial was commenced and it is not in dispute that the amendment was before the commencement of the trial. According to the plaintiffs, during the pendency of the suit, the defendants trespassed the suit property and dispossessed the plaintiffs and further the trial Court, while dealing with interlocutory application for grant of interim injunction, observed that the plaintiffs were not in possession of the suit property and dismissed the same. Therefore, in such circumstances, the plaintiffs have come forward to amend the plaint seeking for declaration and recovery of possession. As rightly pointed out by the learned senior counsel for the respondents that such proposed amendment of the plaint would not change or alter the basic structure of the suit and it is always open to the petitioners/defendants to defend their case since the trial is yet to be commenced. Even assuming that if amendment is not permitted, then the plaintiffs have to necessarily come forward with a fresh suit with all the reliefs that were sought to be amended in the present suit. Therefore, allowing the amendment would curtail multiplicity of legal proceedings. Further, allowing the amendment would not cause any prejudice to the petitioners/defendants since the trial Court has specifically observed that the amendment shall be deemed to have been made on the date on which the interlocutory application was filed, i.e.26.11.2010.
12. In "Sampath Kumar v. Ayyakannu" reported in (2002) 7 SCC 559, at page 564, in similar circumstances, while dealing with Order 6 Rule 17 CPC, the Hon'ble Supreme Court has held as under:
"9. Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.
"10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma v. Mamtha Shenoy.) "11. In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."
13. Therefore, time and again, the scope of amendment of pleadings has already been considered by the Hon'ble Supreme Court and this Court in various decisions. The following factors are to be taken into consideration while dealing with the application for amendment.
a) whether the amendment sought is imperative for proper and effective adjudication of the case;
b) whether the application for amendment is bona fide or mala fide;
c) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.
d) refusing amendment would in fact lead to injustice or lead to multiple litigation.
e) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case;
f) as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application and
g) amendment cannot be claimed as a matter of right under all circumstances, but the Courts while deciding such prayer should not adopt a hyper technical approach.
V.DHANAPALAN, J.
suk
14. Therefore, when the above factors are tested to the case on hand, as already discussed above, this Court is of the view that the proposed amendment prior to the commencement of the trial would not cause any prejudice to the defendants and it would not change the basic structure or character of the case and further, the said amendment is imperative for proper and effective adjudication of the case. The primary aim of the Courts is to try the cases on merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the Courts so that the Courts have access to all the relevant information in coming to their decisions. Therefore, at times, it is required to permit the parties to amend their plaints.
15. Keeping in view of the above, this Court does not find any illegality or irregularity in the impugned order of the Court below in order to interfere with the same. Accordingly, the Civil Revision Petition fails and it is dismissed. No costs. Consequently, connected MP is closed.
Suk 27.06.2012 Index: Yes/No Internet: Yes/No CRP PD NO.2259 OF 2012