Madras High Court
N.Jothi vs Subhash Paliwal) on 2 November, 2016
RESERVED ON : 25.10.2016
DELIVERED ON : 02.11.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.11.2016
CORAM
THE HONOURABLE THIRU JUSTICE M. DURAISWAMY
C.R.P.(NPD)No.3311 of 2016 &
C.M.P.No.16899 of 2016
N.Jothi ... Petitioner
v.
1.S.Radha
2.K.Andal
3.Arul Jothi ... Respondents
Civil Revision Petition filed under section 115 of the Civil Procedure Code against the order and decreetal order dated 03.02.2016 in I.A.No.161 of 2014 in A.S.No.06 of 2014 on the file of the Principal District and Sessions Court, Perambalur.
For Petitioner : Mr.R.Subramaniam
for M/s.P.Veena Suresh
For Respondent : Mr.P.Valliappan
O R D E R
Challenging the fair and final order passed in I.A.No.161 of 2014 in A.S.No.06 of 2014 on the file of Principal District and Sessions Court, Perambalur, the appellant has filed the above Civil Revision Petition.
2. The petitioner has filed the suit in O.S.No.649 of 2004 on the file of Principal District and Sessions Court, Perambalur, to declare that the defendants are not the owners of the suit property, for mandatory injunction and permanent injunction.
3. After contest, the Trial Court dismissed the suit.
4. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.06 of 2014 before the Principal District and Sessions Court, Perambalur. In the said appeal, the petitioner took out an application in I.A.No.161 of 2014 under Order 6 Rule 17 of Civil Procedure Code to amend the plaint by including the prayer to declare that the plaintiff alone is the owner of the suit vacant site which is situate in SF No.450/1A/2 and to deliver possession of the suit property to the plaintiff. Correspondingly, the petitioner also sought to amend the details of the valuation and the list of documents.
5. In the affidavit filed in support of the application, the petitioner has stated that originally she sought for negative declaration before the Trial Court, which was rejected by the Trial Court by its judgment. Further, she has stated that when the respondents advanced arguments that negative declaration cannot be granted, she made ready an application seeking for amendment before the Trial court. It has been further stated the Trial Court pronounced the judgment in the suit even prior to the filing of the application. In order to avoid the technical flaw, the petitioner has filed the application before the Lower Appellate court seeking for amendment of the plaint.
6. The respondents filed their counter disputing the averments stated in the affidavit filed in support of the application. In the counter, the respondents have stated that the prayer sought for in the amendment application was not sought for before the Trial Court and the same has been specifically questioned by them in the written statement itself. Further, they have stated that when this defect was brought to the knowledge of the petitioner before the Trial Court itself, that too, even before the commencement of the trial, the petitioner choose not to file an application seeking for amendment before the commencement of the trial. The respondents have also stated that even after the completion of the trial before the Trial Court, the petitioner did not file the application seeking for amendment, though she gave notice to other side. Even before the Lower Appellate Court, the application seeking for amendment was filed only when the appeal was posted in the list for hearing. Further, the respondents have contended that the amendment of pleadings cannot be entertained after the commencement of the trial.
7. Mr.R.Subramaniam, learned counsel appearing for the petitioner, submitted that the Lower Appellate Court could have allowed the application and amended the prayer in the plaint. Further, the learned counsel submitted that by amending the prayer, no further evidence is required to be let in by the parties. In support of his contention, the learned counsel relied upon the following judgments:-
(i) An unreported judgment of the Hon'ble Supreme Court of India made in Special Leave Petition (C) No.3592 of 2006, dated 15.12.2009 (Jaswant Kaur & Anr vs Subhash Paliwal), wherein the Hon'ble Supreme Court held as follows:-
18. It is no doubt true, as has been submitted by Ms. Shobha, that the power to allow amendment of pleadings is very wide and is to be applied liberally. However, in the context of the instant case, such an argument would not be available to the Petitioners since, as found by the Courts below, they were fully aware of the Will in question, but had not even mentioned the same in their written statement and had only made an application under Order XI Rules 12 and 14 CPC for a direction upon the Respondents to produce the same, which prayer had been rejected. It is only at the first appellate stage, and, that too, about two years after the Appeal had been filed, that the two applications were made under Order XLI Rule 27 and Order VI Rule 17 CPC for amendment of the plaint and for bringing on record the certified copy of the Will. By virtue of the said two applications, the Petitioners attempted to introduce a new story by way of defence in order to prolong the disposal of the appeal.
(ii) An unreported judgment of the Hon'ble Supreme Court of India made in Special Leave Petition (C) No.23662 of 2010, dated 14.05.2015 (Mahila Ramkali Devi and others v. Nandram (D) Thr. LRs.and others), wherein the Hon'ble Supreme Court held as follows:- Court held as follows:-
19. It appears thus while disposing of the appeal, the High Court has not gone into the amended plaint. By amendment, the plaintiff-appellant not only sought to add the names of Dinesh, Satish, Sanjay and Rajendra sons of Baijnath Prasad Saxena in the category of plaintiffs, but also sought to make necessary amendment in paragraph 3 of the plaint. The averment sought to be incorporated in paragraph 3 of the plaint by amendment is reproduced hereunder:
Vikalp me yadi vasiyatnama vaidya na mana jave to be Ajudhibai ke karibtar varies vadini ke ladke Rajendra, Dinesh, Satish aur Sanjay hi hai jo abhi nabalig hai aur yeha dava unke hito ko represent karte huai unki maliki ke adhar par bhi prastut hai. Vadini ke dekh-rekh me ladke rahte hai. Garj yahe hai ki har halat me prativadigan ki koi swatva v mukable vadini avam uske ladke nahi hai. Aur vadini vivadagrast aaraji ka kabja apne tatha ladkon ko aur se pane ki patra hai. As translated in English In alternative, if the will is not held valid, yet the plaintiffs sons Rajendra, Dinesh, Satish, Sanjay, who at present are minors are near relations of Ajudhibai and this suit is submitted to represent their interests on basis of their ownership. The sons live in care of plaintiff meaning thereby in every condition there is no right of defendants competing plaintiff. And the plaintiff herself and on behalf of her sons is entitled to get possession of the suit land.
20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting malafide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost.
21. In our view, since the appellant sought amendment in paragraph 3 of the original plaint, the High Court ought not to have rejected the application.
22. In the case of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267, this Court held that the power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any such narrow or technical limitations.
23. In Pandit Ishwardas vs. State of Madhya Pradesh and Ors., AIR 1979 SC 551, this Court observed :-
We are unable to see any substance in any of the submissions. The learned counsel appeared to argue on the assumption that a new plea could not be permitted at the appellate stage unless all the material necessary to decide the plea was already before the Court. There is no legal basis for this assumption. There is no impediment or bar against an appellate Court permitting amendment of the pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well-known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and, if made at the Appellate stage the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court.
24. In the light of the discussion made hereinabove and also having regard to the fact that the amendment sought for by the plaintiff-appellant ought to have been allowed by the High Court, in our considered opinion substantial issue no.2, as formulated by the High Court, needs to be decided by the High Court afresh.
8. Countering the submissions made by the learned counsel appearing for the petitioner, Mr.P.Valliappan, learned counsel appearing for the respondents submitted that though the respondents have specifically contended in the written statement that negative declaration cannot be granted, the petitioner choose to file the application only before the Appellate Court, that too, after the dismissal of the suit by the Trial Court. Further, the learned counsel submitted that the petitioner has not explained the reasons for not filing the application at the earliest point of time. The learned counsel also submitted that the Lower Appellate Court has rightly dismissed the application. In support of his contentions, the learned counsel relied upon a judgment reported in AIR 2015 Supreme Court 3364 [L.C. Hanumanthappa (since Dead) Represented by his LRs v. H.B. Shivakumar] wherein, the Hon'ble Supreme Court held as follows:-
24. In Siddalingamma v. Mamtha Shenoy [(2001) 8 SCC 561] , this Court held while allowing an amendment of the plaint in a case of bona fide requirement of the landlord that the doctrine of relation back would apply to all amendments made under Order 6 Rule 17 of the Code of Civil Procedure, which generally governs amendment of pleadings, unless the court gives reasons to exclude the applicability of such doctrine in a given case. No question of limitation was argued on the facts in that case which would therefore be in the category of cases which would follow the line of judgments which state that costs can usually compensate for an amendment that is made belatedly but within the period of limitation, it not being an exceptional case such as those contained in the two judgments L.J. Leach & Co. Ltd. [1957 SCR 438 : AIR 1957 SC 357] and Pirgonda Hongonda Patil [1957 SCR 595 : AIR 1957 SC 363] cited above."
9. On a perusal of the plaint prayer, it could be seen that the petitioner-plaintiff has filed the suit to declare that the respondents-defendants are not the owners of the suit property. The suit was filed in the year 2004. In September 2006, the defendants filed their written statement wherein, they have specifically stated in paragraph 10 of the written statement that the suit filed by the petitioner for negative declaration cannot be granted and the same is liable to be dismissed.
10. The Trial Court, took into consideration the case of both the parties, dismissed the suit by its judgment and decree dated 25.11.2009 finding that negative declaration sought for by the plaintiff cannot be granted. The petitioner-plaintiff submitted that she has made the amendment application ready after the completion of the trial in the suit, however, she could not file the application before the Trial court, since the Trial Court had pronounced the judgment before the filing of the application.
11. As against the judgment and decree passed in O.S.No.649 of 2004, the plaintiff preferred an appeal in the year 2010 and the appeal was numbered in the year 2014. The petitioner filed an application under Order 6 Rule 17 of Civil Procedure Code seeking for amendment of the prayer in the plaint. When the petitioner had every opportunity to file the application to amend the prayer, she choose not to file the application immediately and she took her own time to file the application. The respondents contended that even the present application was filed only when the Lower Appellate Court posted the appeal in the list for hearing. The reason for not filing the application at the earliest point of time was not explained by the petitioner. When the respondents-defendants have specifically stated that the suit filed by the petitioner-plaintiff for negative declaration is not maintainable, she should have filed the application immediately after the filing of the written statement in September 2006.
12. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the petitioner, since the facts and circumstances are completely different in the present case, the same are not applicable to the present case.
13. The learned counsel for the respondents also contended that under Article 58 of the Limitation Act, the relief sought for by the petitioner-plaintiff is barred. Though the original suit was filed in the year 2004, the present application seeking for amendment of the prayer for declaration and recovery of possession cannot be granted after a lapse of 10 years. The amendment of the pleadings cannot be allowed only to get over the findings of the Trial Court.
14. In the case on hand, the petitioner has filed the application seeking for amendment only to get over the findings of the Trial court.
15. It is settled position that post-trial amendment cannot be granted just for asking. In the case on hand, it is not only post-trial amendment, but also amendment is sought for by the petitioner-plaintiff after the dismissal of the suit. The Lower Appellate Court, taking into consideration the case of both the parties, rightly dismissed the application.
16. In these circumstances, I do not find any error or irregularity in the order passed by the Lower Appellate Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
02.11.2016
Index : Yes/No
Rj
To
The Principal District and Sessions Court,
Perambalur.
M. DURAISWAMY,J.,
Rj
Order in
C.R.P.(NPD)No.3311 of 2016 &
C.M.P.No.16899 of 2016
02.11.2016