Madras High Court
Thavittu Ponnu vs Devaki Ammal on 10 February, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10-2-2012 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN C.R.P.(NPD)No.3260 of 2009 Thavittu Ponnu ... Petitioner Versus 1.Devaki Ammal 2.Palanivel 3.Krishnamurthi ... Respondents This petition is filed under Section 115 C.P.C. against the order dated 28.07.2009 made in I.A.699/2008 in O.S.No.245/2005 on the file of the Court of the District Munsif, Mannargudi and to set aside the same. For Petitioner : Mr.V.Bhiman For Respondent : Mr.M.M.Ram Manohar ORDER
The revision petitioner is the plaintiff in O.S.No.245 of 2005 on the file of the District Munsif, Mannarkudi. The revision petitioner filed the suit for declaration and for recovery of possession in respect of two items of properties and after commencement of trial, the revision petitioner filed I.A.No.699 of 2008 under Order 6 Rule 17 to amend the extent of second item of property as 0.89 cents instead of 0.44 = cents and also the boundaries of the suit properties. That application was rejected by the Trial Court and aggrieved by the same, this revision is filed.
2. Mr.Bhiman, learned counsel for the revision petitioner submitted that the court below without properly appreciating the fact that pre-trial amendment are to be allowed liberally, erroneously dismissed the application holding that boundaries were not given in the plaint schedule and the amendment sought for would affect the character of the suit. He further submitted that the revision petitioner only prayed for substitution of boundaries and amendment of the extent of second item of suit property in the pleadings and schedule as 0.89 cents instead of 0.44 = cents and by such substitution of boundaries and amendment of extent, no prejudice would be caused to the respondent.
3. On the other hand, learned counsel for the respondent submitted that in respect of the suit property in S.No.167/12 the respondent is the owner of an extent of 76 = cents and therefore, the revision petitioner is not entitled to claim the declaration in respect of 89 cents by way of amendment and the relief sought for by the revision petitioner would affect the case of the respondent.
4. I am unable to accept the contention of the learned counsel for the respondent. At the time of filing the application for amendment, admittedly, the trial has not been completed.
5. It has been held by the Hon'ble Supreme Court in the following judgements regarding the amendment of the pleadings.
6. In the Judgement reported in 2008 (14) SCC, 364 (Rajkumar Gurawara (Dead) vs. S.K.Sarwagi and Company Private Ltd., and another), the Hon'ble Supreme Court has stated as follows in para-13:
"To put it clear, 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 on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite part is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."
7. In the Judgement reported in 2008 (8) Supreme Court Cases 511, (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das), the Hon'ble Supreme Court has held as follows:
" Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In AIR 1957 SC, 363 (Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil) which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties, Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."
8. Further in the Judgement reported in 2009 (8) MLJ 907 (SC) (Revajeetu Builders & Developers Vs.Narayanaswamy & Sons), the Hon'ble Supreme Court has laid down certain guidelines for allowing or rejecting the application for amendment and they are as follows:
"(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(2) Whether the application for amendment is bonafide or malafide?
(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) 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."
9. Therefore, in view of the above judgements, amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. So far as amendment after the commencement of trial is concerned, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso. Unless the aggrieved parties are prejudiced by the proposed amendments the courts are at liberty to allow the amendment application. In this case there is no question of prejudice caused to the revision petitioner as the amendment sought for by the respondent did not change the character of the suit and affect the vested right accrued to the revision petitioner.
10. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings, and amendments can be allowed when the opposite party is not prejudiced. In my opinion, the substitution of boundaries and amendment of extent as sought for in this case will not cause any prejudice to the respondent and unless the revision petitioner is able to prove his title to the suit, he is not entitled to declaration. Further the trial is not over and the respondent is also entitled to file additional statement and lead further evidence. Hence, the order of the lower court is set aside and the revision is allowed.
11. The learned District Munsif, Mannargudi is directed to dispose of the O.S.No.245 OF 2005 on the file of the District Munsif, Mannargudi within two months from the date of the receipt of a copy of this order. No costs. Consequently the connected M.P.No.1 of 2009 is closed.
vk To The District Munsif Mannargudi