Madras High Court
T.Gunaseelan vs M. Thamilselvi on 22 March, 2004
Equivalent citations: 2004 A I H C 2182, (2004) 3 CIVLJ 649, (2004) 2 MAD LJ 620, (2004) 4 MAD LW 695, (2004) 5 CTC 729 (MAD)
Author: P.Sathasivam
Bench: P.Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22/03/2004
CORAM
THE HON'BLE MR. JUSTICE P.SATHASIVAM
C.R.P. No. 1666 OF 2002
T.Gunaseelan .. Petitioner
-Vs-
M. Thamilselvi .. Respondent
Revision against the order and decree dated 10.6.2002 made in I.A.
No.71 of 2002 in O.S. No.225 of 1999 on the file of learned District Munsif,
Madurai Taluk.
!For petitioner ... Ms. S. James
^For respondent ... Mr. K.M. Venugopal
:ORDER
The Civil Revision Petition is directed against the order of the learned District Munsif, Madurai Taluk dated 10.6.2002 made in I.A. No. 71 of 2002 in O.S. No.225 of 1999 in and by which the learned District Munsif, Madurai Taluk, dismissed the said petition filed under Order 6 Rule 17 read with Section 151 C.P.C. seeking permission to amend the plaint as described in the said petition.
2. Heard the learned counsel for the petitioner as well as the respondent.
3. In the affidavit filed in support of the said petition, it is stated that pending suit, the defendant had forcibly dispossessed the petitioner/plaintiff from the suit property. Aggrieved by the act of the respondent/defendant, the petitioner has filed I.A. No.136 of 200 0 to put the petitioner in possession of the property by Court of law. The said petition was allowed on 4.12.2000. It is also his claim that as per order in I.A. No.136 of 2000, the petitioner was put into possession of the suit property. Subsequent to that, the respondent again dispossessed the plaintiff from the suit property. On these averments, the petitioner has prayed to amend the plaint for the relief of recovery of possession.
4. The respondent/defendant filed a counter wherein it is stated that as per the order of this Court in C.R.P.No.1370 of 2000, which was filed against the order in I.A. No.136/2000, the petitioner is out of possession and he is not eligible to obtain possession of the suit property. It is further stated that the petitioner is not a tenant under the respondent and one Duraisingam is in possession of the suit property and also he filed a suit in O.S. No.209/1998 and obtained an ex parte decree which is still in force.
5. The learned District Munsif, after holding that though the petitioner has stated that the respondent has illegally dispossessed him from the suit property, in the absence of relevant details viz., date of dispossession etc., dismissed the said petition.
6. The learned counsel for the petitioner would contend that since the application of the petitioner is pre- trial application,i.e. well prior to the commencement of the trial and in the light of the decision of the Supreme Court reported in SAMPATH KUMAR VS AYYAKANNU ( 20 02(4) CTC 189) the learned District Munsif ought to have allowed the said application for amendment.
7. On the other hand, the learned counsel for the respondent would submit that in the light of the earlier order passed by this Court in C.R.P.No.1370 of 2000 and also of the fact that one Duraisingam is in possession of the suit property, the petitioner is not entitled to amendment as prayed for by him and the learned District Munsif has rightly dismissed the petition.
8. I have carefully considered the rival submissions.
9. Before considering the claim of both parties, it is useful to refer to Order 6 Rule 17 C.P.C. which reads as under:
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 such amendments shall be made as may be necessary for the purpose of determining the real question 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, party could not have raised a matter before the commencement of trial"
10. It is clear that the Court is empowered to consider such application at any stage of the proceedings to amend or alter his pleadings if it is found that the amendment is required for the purpose of determining the real questions in controversy between the parties. The only embargo as per the proviso to that Rule is that no application for amendment be allowed after the trial has commenced. Even here, if the Court comes to the conclusion that in spite of due diligence party could not have raised a matter before the commencement of the trial, the Court is empowered to consider such request depending on the merits of the claim.
11. In the case before the Supreme Court,the plaintiff/appellant filed a suit for issuance of permanent prohibitory injunction alleging the plaintiff-appellant's possession over the suit property. The defendant in his written statement denied the plaint averments and pleaded that on the date of the institution of the suit, he was in possession of the suit property and therefore, the suit for injunction was liable to be dismissed. The suit was instituted in the year 1988. In the year 1999 before the commencement of the trial, the plaintiff moved an application under Order 6 Rule 17 C.P.C. seeking an amendment in the plaint. It is alleged in the application that during the pendency of the suit, the defendant has forcibly dispossessed the plaintiff. On such averment, the plaintiff sought for relief of declaration of title to the suit property and consequential relief of delivery of possession. The said prayer for amendment was opposed on behalf of the defendant-respondent submitting that the plaintiff was changing the cause of action through amendment which was not permissible and also on the ground that the defendant has perfected his title also by adverse possession over the suit property rendering the suit for recovery of possession barred by time and therefore, a valuable right had accrued to the defendant which was sought to be taken away by the proposed amendment.
12. The trial Court rejected the application for amendment and the same was maintained by the High Court in Revision. Hence, the matter went to Supreme Court. In the light of the said factual position and in view of Order 6 Rule 17 C.P.C. and taking note of the fact that the said petition came to be filed before commencement of trial, Their Lordships have observed as follows:
" In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtail multiplicity of legal proceedings"
13. It is also useful to refer the following conclusion with reference to the said proviso.
Order 6 Rule 17 of the C.P.C. Confers jurisdiction on the Court to allow either party to alter or amendment his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are 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 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 strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment"
14. Though in that case amendment was being sought for almost 11 years after the date of the institution of the suit, after finding that the plaintiff is not barred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as pleaded in the plaint, seeking relief of injunction and in order to avoid multiplicity of suits, permitted the said amendment. It is also relevant to refer the following observation of the Supreme Court in para 11.
" 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 appli- cation for amendment has been filed"
15. After saying so and after holding that the defendant is not prejudiced more so when the amendment was sought for before the commencement of trial, set aside the order passed by the trial Court as well as the High Court and allowed the appeal.
16. After going to the factual position in our case and the case before the Supreme Court, I am of the view that the said decision is directly on the point. It is clear that pre-trial amendments are to be allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. It is also relevant to note that if it is permissible for the plaintiff to file an independent suit, there is no difficulty in accepting his application for amendment of the plaint. In the facts and circumstances of the present case, I am satisfied that allowing the amendment would curtail the multiplicity of legal proceedings as observed by the Supreme Court in the above referred case. The learned District Munsif has committed an error in dismissing the application only on the ground that plaintiff has not stated the date of dispossession.
17. In the light of what is stated above, the impugned order of the the learned District Munsif, Madurai Taluk dated 10.6.2000 made in I.A. No.71/2002 in O.S. No.225/1999 is set aside. The Civil Revision Petition is allowed. No costs.
Index: Yes Internet: Yes vbs To
1. The District Munsif, Madurai Taluk
2. The Section Officer, VR Section, High Court, Madras.