V.L.Kaliannan vs Jagadambal on 25 June, 2012

[Cites 9, Cited by 0]

Madras High Court

V.L.Kaliannan vs Jagadambal on 25 June, 2012

2. Animadverting upon the fair and final order dated 02.04.2012 passed by the learned I Additional Subordinate Judge, Erode in I.A.No.277 of 2012 in A.S.No.30 of 2011, this civil revision petition has been focussed.

3. A summation and summarisation of the germane facts, in a few broad strokes, can be encapsulated thus:

(i) The revision petitioner herein filed the suit seeking the following reliefs:

- To pass a decree in favour of the plaintiff and as against the defendants,

- declaring that the plaintiff is the absolute owner of the suit properties by virtue of registered sale deed dated 13.12.1995;

- restraining the defendants, their men, agents, etc., from in and in any manner either trespassing into the suit properties or disturbing the peaceful possession and enjoyment over the suit properties by the plaintiff by means of consequential permanent injunction;

directing the defendants to pay the costs of the suit to the plaintiff."

(extracted as such)

(ii) The lower court after full trial decreed the suit granting the following reliefs:

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(iii) Being aggrieved by and dissatisfied with the same, the defendants preferred appeal. The appellate court remanded the matter to the lower court.

(iv) Challenging and impugning the order of remand, CMA was filed by the appellants/defendants. Meanwhile, the plaintiff also filed one cross appeal, airing the grievance that his application for additional evidence before the lower appellate court was unjustifiably dismissed. After hearing both sides,, the order of remand was set aside by this court and the matter was remitted back to the appellate court for hearing the matter on merits and also giving opportunity of adducing evidence on both sides. During the pendency of the appeal, I.A.No.277 of 2012 was filed by the plaintiff seeking the following reliefs:

"To permit the petitioner to amend the plaint as detailed in the accompanying petition and render justice.

Particulars of amendments

1. In the valuation clause after the 2nd line add the following:

"Value of the two asbestos sheds and thatched house is Rs.30,000/- half of the same is Rs.15,000/-."

2. In the 4th line in the valuation column delete '50,000/-' and substitute the same with '65,000/-".

3. In the next line delete 'Rs.3,750.50' and substitute the same as 'Rs.4.875.50'.

4. In the schedule of properties after 'acre 0.50' add 'a thatched shed and two asbestos sheds admeasuring 16' x 60' and 20' x 11'."

(extracted as such) After hearing both sides, the appellate court dismissed the I.A., as against which, this revision is focussed on various grounds.

4. The learned counsel for the revision petitioner/plaintiff would put forth and set forth his arguments, which could pithily and precisely be set out thus:

a] The appellate court failed to take into consideration the fact that the plaintiff simply wanted to amend the valuation clause and also the schedule of properties only for the purpose of getting incorporated in the plaint, the admitted existence of the super structures, viz., two asbestos sheets and a thatched house.

b] No prejudice would be caused to the defendant if, such amendment is allowed and above all it is for the appellate court ultimately to decide the appeal on merits.

c] He would also furnish the additional information to this court that pending litigation D5, who was in occupation of a part of the suit property, surrendered possession in favour of the plaintiff and the plaintiff also took possession and in such a case, for the purpose of getting the lis comprehensively decided, the plaintiff filed such application. But, it was dismissed, warranting interference in this revision.

5. Per contra, the learned counsel for the respondents/defendants, would pyramid his argument, which could pithily and precisely be set out thus:

(i) Under Order 6 Rule 17 of CPC, the plaint cannot simply be got amended at the whims and fancies of the plaintiffs at any stage, including the appellate stage.

(ii) The law relating to amendment of plaint has got changed drastically and accordingly, after the commencement of the trial, as a matter of course, the plaintiff cannot get the plaint amended.

(iii) There are catena of decisions of the Hon'ble Apex Court to that effect.

(iv) In fact the appellants earlier filed cross appeal referred to supra. The contention of the plaintiff in that cross appeal was to the effect that the lower appellate court was expected to decide the appeal as such, from the available facts and not on any other additional features and facts. When such is the position, the plaintiff was not justified in filing I.A.No.277 of 2012.

Accordingly, he would pray for the dismissal of the revision.

6. The point for consideration is as to whether there is any perversity or illegality in the order passed by the appellate court in I.A.No.277 of 2011 in rejecting the amendment application?

7. At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court:

(i) 2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER, certain excerpts from it would run thus:

"7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:

"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."

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfil the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding'.

9. Although in a different context, a Three-Judge Bench of this Court in Union of India and others v. Major General Madal Lal Yadav (Retd) ([1996] 4 SCC 127) took note of the dictionary meaning of the terms 'trial' and 'commence' to opine:

19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.

The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.

10. Order XVIII, Rule 4(1) of the Code reads as under:

"4.Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and c5opies thereof shall be supplied to the opposite party by the party who claim for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court."

11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms:

"15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.

16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it."

In Kailash v. Nanhku ([2005] 4 SCC 480), this Court held:

"13. At this point the question arises:when does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word 'trial'.

We may notice that in Ajendraprasadji N.Pandey and Another v. Swami Keshavprakeshdasji N. And Others ([2006] 12 SCC 1), this Court noticed the decision of this Court in Kailash (supra) to hold:

35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.

36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.1.7.2002. It had a provision permitting amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration."

(ii) 2012 STPL (Web) 198 SC [Rameshkumar Agarwal vs. Rajmala Exports Pvt.Ltd., and others]. Certain excerpts from it would run thus:

"10. In Revajeetu Builders & Developers vs. Narayanasamy & Sons & Others (2009) 10 SCC 84, this court once again considered the scope of amendment of pleadings. In para 63, it concluded as follows:

"Factors to be taken into consideration while dealing with applications for amendments.

63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

1. whether the amendment sought is imperative for proper and effective adjudication of the case;

2. whether the application for amendment is bona fide or mala fide;

3. the amendment should not cause such prejudice to the other side which cannot be compensated adequatedly 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. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

11. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

12. In view of the fact that the amendment application came to be filed immediately after filing of the suit (suit came to be filed in 2007 and the amendment application was in 2008) i.e. Before commencement of the trial and taking note of the fact that the learned single Judge confined the relief only to a certain extent and also that in the proposed amendment the plaintiff wants to explain how the money was paid, though necessary averments in the form of foundation have already been laid in the original plaint, we hold that by this process the plaintiff is not altering the cause of action and in any way prejudice defendants.

13. By the present amendment, the plaintiff furnished more details about the mode of payment of consideration. Accordingly, we hold that there is no inconsistency and the amendment sought for is not barred by limitation."

A mere poring over and perusal of the aforesaid precedents would unambiguously and unequivocally highlight and spot light the fact that after the amendment of Order 6 Rule 17 of CPC vide Act 22 of 2002 (w.e.f. 1.7.2002) as a matter of course, plaintiff cannot be allowed to amend the plaint and that too after commencement of trial. Applying the dictum as found set out in Vidyabai's case, if the matter is viewed, it is quite obvious and axiomatic that already the trial got completed in full and thereafter judgment emerged, which resulted in filing of the appeal; and thereafter, appeal has been filed; in such a case, before the appellate forum when the I.A was filed, the appellate court was enjoined to look into special circumstances, if any, as per Order 6 Rule 17 of the Code of Civil Procedure.

8. Whether there are any special circumstances warranting amendment at the appellate stage is the question and that too at the instance of the respondent/plaintiff in the appeal. The dictum as found enunciated in the Hon'ble Apex Court decision reported in 2012 STPL (Web) 198 SC [Rameshkumar Agarwal vs. Rajmala Exports Pvt.Ltd., and others] is so obvious that already in the plaint, if there is any reference to a particular fact and not in full, certainly the party concerned can elaborate that fact by subsequent pleadings by way of amendment; on the other hand if entirely a new set of facts is sought to be introduced, then the Hon'ble Apex Court would look askance at it.

9. At this juncture, I would like to recollect the trite proposition of law that in an injunction suit if the defendant trespass into the suit property pendente lite, then that injunction suit can be converted into a suit for possession because of the fact that pending litigation the defendant drastically trespassed into the suit property. In appropriate circumstances, courts have even got power to mould the relief and grant possession of the suit property in a suit for injunction, if from the available evidence, the court could understand that the defendants pending suit trespassed into the suit property. But those are all not the proposed pleading in this case.

10. A mere perusal of the plaint would display and demonstrate that absolutely there is no whisper about the erection of any super structure in the building at all. Had there been any reference of erection of any super structure then that fact can be elaborated by additional pleadings. I would like to raise a question as to who raised such super structures and when? For which in the affidavit accompanying the application in I.A. No.277 of 2012 there is no explanation. The appellate court, in view of the aforesaid facts, thought fit not to allow the interlocutory application and decided to dispose of the appeal as it is.

11. I could see no perversity or illegality in such approach. Merely because one of the defendants viz., D5 surrendered possession of a part of the suit property in favour of the plaintiff that would not weigh with the court to allow the I.A for amendment and it could be taken as a conduct of one of the defendants pending litigation and it is for the appellate court to see from the available evidence as to when the super structures emerged in the suit property either before filing of the suit or pending the filing of the suit. If it is pending filing of the suit, as I have highlighted above, the appellate court, has got inherent power to pass suitable orders. But on the other hand, if the erection took place anterior to the filing of the suit and that too not at the instance of the plaintiff then it is for the appellate court to take into account such facts and decide the appeal based on the available materials as per law. As such, I am of the view that no interference is warranted in this revision.

12. In the result, the civil revision petition is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

vj2					25.06.2012

Index    :Yes
Internet :Yes

Note: Issue order copy on 28.06.2012



G.RAJASURIA,J

							vj2

To
The I Additional Subordinate Judge, Erode











C.R.P.(NPD) No.1752 of 2012










25.06.2012

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