Madras High Court
T.Kantharaju vs Dr.N.Kuppuswami on 10 December, 2003
Author: V.Kanagaraj
Bench: V.Kanagaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10/12/2003 CORAM THE HONOURABLE MR.JUSTICE V.KANAGARAJ CIVIL REVISION PETITION (PD) NO. 3735 of 2001 AND C.M.P.No.20056 of 2001 T.Kantharaju .. Petitioner -Vs- 1. Dr.N.Kuppuswami 2. N.Saraswathi 3. T.Govindarajulu 4. T.Sundararajulu .. Respondents Civil Revision Petition filed under Section 115 of C.P.C. praying for the relief as stated therein. For petitioner : Mr.V.Raghavachari For respondents 1 & 2 : C.R.Muralidharan For Respondent No.3 : No appearance. :O R D E R
This Civil Revision Petition has been filed against the fair and decretal order dated 9.10.2001 made in I.A.No.1202 of 1998 in O.S.No.318 of 1996 by the Court of District Munsif, Krishnagiri by the third defendant to the suit who is also the third respondent in the I.A.No.12 02 of 1998.
2. Tracing the history of the above Civil Revision Petition having come to be filed, it comes to be known that the respondents 1 and 2 herein are the plaintiffs 3 and 4 in O.S.No.40 of 1983 on the file of the Court of Subordinate Judge, Krishnagiri; that the said suit was filed by their mother for possession of the suit property, past and future mesne profits and for costs and the same was decreed allotting the suit properties to her after contest by the defendants therein; that pending suit, first plaintiff Rajammal died leaving behind her husband Gopal @ Narayanaswami Naidu, son and daughter as legal heirs and they were brought on record as plaintiffs 2 to 4; that subsequently the second plaintiff also died; that the said suit was transferred to Additional Special Court, Krishnagiri to be tried along with the another suit O.S.No.41 of 1983 filed by Rajammal for partition of suit house into two equal shares by metes and bounds and for direction to defendants to deliver separate possession of half share and for future mesne profits on the basis of the final decree passed by the Sub Court, Salem; that the defendants therein filed a suit in O.S.No.311 of 1 984 on the file of the Court of Subordinate Judge, Krishnagiri against Rajammal for a decree directing her to execute a relinquishment deed for the suit properties as per the terms of the agreement dated 26.1.1981 and in default to get the document executed by Court; that the respondents 1 and 2 herein were also brought on record as defendants 3 and 4; that the said suit was also transferred to Additional Special Judge, Krishnagiri and the same was renumbered as O.S.No.157 of 19 86 for joint trial; that a memo was filed for a joint trial and the plaintiff in O.S.No.40 of 1983 was examined and their evidence was also closed; that the first defendant was examined as D.W.1 and when the impugned muchalika was sought to be marked, the plaintiffs took objection that it is not properly stamped and it cannot be received in evidence; that an order was passed holding that it is only an agreement against which revision was filed and the same was dismissed by this Court; that as per the agreement, the first plaintiff was entitled to possession of the properties as proposed amendment in the alternative in the accompanying petition for amendment.
3. In the counter filed by the respondent in I.A.No.1202 of 1998, it is stated that the suit properties were never delivered to deceased Rajammal and she was not entitled to any share in the suit house of O.S.No.41 of 1983; that the petition for amendment is belated one and the same was filed as an after thought; that with regard to the properties sought to be added by way of amendment, their possession continued with the respondents and the same was admitted by the plaintiffs and therefore, there would be no cause of action; that the plaintiffs have challenged the validity of the Muchalika on the ground that the signatures of the plaintiffs were obtained by using undue influence; that the plaintiffs' right to sue for specific performance for enforcing the terms of the Muchalika got extinguished by expiry of the prescribed period of limitation; that the respondents' suit for specific performance requiring the petitioners in O.S.No.157 of 1986 to execute the relinquishment deed is pending and the joint trial is ordered would not enlarge the period of limitation and therefore, they cannot claim alternative relief and therefore, the petition has to be dismissed.
4. The lower Court has allowed the petition for amendment on cost of Rs.350/- against which this revision has been filed by the third respondent therein on certain grounds as brought forth in the grounds of revision.
5. During arguments, the learned counsel for the petitioner would also cite from the order passed by a learned single Judge of this Court way back in 1980 in C.R.P.No.2849 of 1979 regarding amendment of pleadings, wherein in a suit for permanent injunction the plaintiff prayed for amendment of the plaint for alternative prayer of recovery of possession being filed after examination and after closing the evidence and held that it could not be allowed. The extract from the relevant paragraph 15 of the order is:
In this case it is quite obvious that the present attempt is only to protract the proceedings and delay the disposal of the suit .... The plaintiff having designedly, wantonly and knowingly asked for the relief of injunction and the present amendment being sought for at belated stage of the suit and just before arguments were heard, if allowed, would not be in the interests of justice.
6. Continuing to argue the learned counsel would submit that the present suit was taken up for trial; that at this stage they have filed this application for alternate relief of possession that those properties in terms of the panchayat agreement were sought to be allotted to them; that the petitioner is entitled to 5.13 acres only; that the panchayat muchalika came to light very belatedly. On such arguments the learned counsel would seek to the relief extracted supra.
7. On the other hand the learned counsel for the respondents would argue that the plaintiff wants to introduce a new case stating that it has to be protected; that the plaintiffs' mother instituted the present suit; that she filed an application for allotment of 1/4th share in the suit property in O.S.No.28 of 1969 on the file of the Court of Subordinate Judge, Salem for partition and separate possession filed by her brother, which came to be decreed; that thereafter, she filed an execution petition to take separate possession of the property which was allowed in her favour in 1979 and the possession was taken on 29.7.1979 in respect of the very same property; that after taking possession, again bringing out the property, the defendants trespassed into the property and a criminal complaint was lodged on 26.8.1981; that in terms of the muchalika the first plaintiff relinquished in respect of all the properties and she has been given 5.1 acres from the properties of the family. Therefore, the plaintiff filed suits in O.S.No.40 of 1983 and O.S.No.41 of 1983 for partition and separate possession of the house and those were sought to be clubbed together and others have filed a suit in O.S.No.311 of 1984 which was for specific performance of the panchayat agreement; that all the three suits were taken together and the said agreement was sought to be marked as document which was objected on the ground that it was not a registered one and therefore, it cannot be accepted as evidence against which revision has been filed and the same was dismissed.
8. On the part of the learned counsel for the respondents, he would also cite two recent orders (i) reported in Sampath Kumar v. Ayyakannu and Another (2002(IV) CTC 189) (ii) Person Publicity rep. by its Partner K.A.A.Ajmal Bhukari v. The Corporation of Madras rep. by its Commissioner (2003(1) CTC 219).
9. In the first order cited above, the Honble Apex Court has held:
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 plaintiffs revision. We fail to understand, if it is permisible 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 curtain multiplicity of legal proceedings.
10. In the second order cited above, a Division Bench of this Court has held:
Though the appellant sought for the relief of injunction restraining the respondent from invoking the bank guarantee, the same was not granted, and so the respondent invoked the same. As mentioned already, the appellant-firm had sought for declaratory relief regarding bank guarantee furnished by them. The amendment now sought for is only a consequential prayer. The learned Judge dism issed the application on the grounds that the appellant came to the Court belatedly and the claim made by the way of amendment is barred by limitation.
11. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it could be assessed that an application has been filed by the plaintiffs No.3 and 4 before the Court of District Munsif, Krishnagiri, under Order VI Rule 17 of C.P.C. seeking to permit the petitioners to amend the plaint as detailed in the petition, wherein the petitioner is the third respondent. The trial Court having traced the facts pleaded, wherein the said amendment petition would be opposed by the third respondent, the petitioner herein to the effect that they did not add themselves as the legal representatives of the deceased plaintiff Rajammal nor the suit properties were delivered to the deceased Rajammal; that she was not at all entitled to any share in the suit house in O.S.No.41 of 1983 and the petition was belated one in a suit for recovery of possession of the properties and hence the petition having been filed as a result of after thought would seek to dismiss the amendment petition filed by the plaintiffs 3 and 4.
12. The Trial Court would also frame point for consideration whether the petition was to be allowed for the reasons stated in the affidavit therein and observing that the respondents having filed O.S.No.311 of 1984 as against the deceased Rajammal for a decree directing the defendants to execute a relinquishment deed in their favour in terms of the agreement dated 26.1.1981 and on her death the petitioners were brought on record as L.Rs. and defendants 2 to 4; that in the joint trial held along with O.S.No.40 of 1983, the plaintiffs evidence was closed and the first defendant was also examined as DW1 and in the impugned muchalica which was sought tobe marked, the plaintiffs took objection on ground that it was not properly stamped and it required registration and ultimately in the High Court it was declared that the objection raised was untenable; that the defendants also filed the suit in O.S.No.157 of 1986 for enforcing the impugned agreement.
13. It would be further seen that on the part of the petitioners therein it has been argued that the proposed amendment was only an alternative relief claimed by the petitioners therein and as per the impugned muchalica the petitioners were entitled to recovery of possession of the item 5 proposed to be added in the suit; citing a judgment reported in 2002 Law Weekly 313 and on such arguments heard, the lower Court remarking that the petition filed under Order VI Rule 17 of the CPC should be liberally construed and since the other party has also ample opportunities to meet with the situation, it was only desirable to allow the same on terms and therefore, feeling that though the petition was highly belated would arrive at the conclusion to allow the same since no serious prejudice was contemplated for the respondents in such event and would allow the said application for amendment of the plaint with a cost of Rs.350/- and it is this order that has been passed by the lower Court is under challenge.
14. Though the stage at which the petition had been allowed was highly belated, still, the trial Court thought it fit not only to impose the cost on the petitioners but also to give adequate opportunity for the respondents to meet with the situation and therefore, no prejudice is caused to the respondents therein that is to the petitioner herein who is the third respondent in the Interlocutory Application and in a matter of such nature when the trial Court is of the view that it was necessary on its part to permit the petitioners therein to amend the plaint and since no prejudice has been caused to the respondents therein, nor brought forth one, it is only reasonable not to counteract to the same in the interest gr.
V.KANAGARAJ,J of justice and therefore, it is only desirable not to cause interference in the decision of the lower Court since the same has been made within the permissible limits of law and hence the following order:
In result,
(i) the above Civil Revision Petition does not merit acceptance and the same is dismissed as such;
(ii) the fair and decretal order dated 9.10.2001 made in I.A.No.1202 of 1998 in O.S.SNo.318 of 1996 by the Court of District Munsif, Krishnagiri is confirmed;
(iii) in the circumstances of the case, there will be no order as to costs;
(vi) consequently, C.M.P.No.20056 of 2001 is closed.
Index:Yes Internet:Yes gr.
To The District Munsif, Krishnagiri.