Madras High Court
T.Raja Reddy vs C.Srinivasa Reddy on 3 June, 2013
Author: K.Ravichandrabaabu
Bench: K.Ravichandrabaabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.06.2013 Coram THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU C.R.P (NPD) No.1324 of 2010 and M.P.No.1 of 2010 T.Raja Reddy .. Petitioner -vs- 1.C.Srinivasa Reddy 2.K.C.Chinnamuni Reddy 3.Thimmakka 4.Chenna 5.Savitrama 6.Srinivasa Reddy 7.Narayanamma 8.Rashmi 9.Minor Shipa, Rep. By Narayanamma 10.Jayarama Reddy 11.Chennamma 12.Chennamma @ Billamma 13.Gowramma .. Respondents Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India against the judgment and decreetal order in I.A.No.36 of 2010 in O.S.No.54 of 1999 on the file of the District Munsif, Hosur dated 12.03.2010. For Petitioner : Mr.M.Himavanth for Mr.V.Raghavachari For Respondents : D.Shivakumaran ORDER
This Civil Revision Petition is filed by the second defendant aggrieved against the order of the Court below in allowing the amendment petition filed under Order 6 Rule 17 CPC by the plaintiffs/respondents herein.
2.The respondents herein as the plaintiffs filed O.S.No.54 of 1999 on the file of the District Munsif Court, Hosur seeking for declaration of their right, title and interest over the suit schedule properties and for permanent injunction not to encumber or alienate the suit properties in any manner. The second defendant being the contesting defendant in the suit, filed the written statement on 07.04.2000. The issues were framed and both the parties have let in their respective evidence. At the time of the commencement of the arguments, the respondents herein filed I.A.No.36 of 2010 under Order 6 Rule 17 CPC seeking for amendment of the plaint. The affidavit filed in support of such application stated that the suit properties belong to the plaintiffs as ancestral properties and by way of partition under the registered Partition Deed dated 28.08.1992 between the plaintiffs and other brothers, namely, Mr.K.C.Muni Reddy and Chandra Reddy. However it is not specifically stated in the plaint as to how the suit properties belong to them as ancestral properties. So in order to give such details and also to specifically pray for declaration of the first plaintiff's title to suit A schedule property and the second plaintiff's title in respect of suit B schedule property separately and for payment of separate Court fees in this regard, the amendment of the plaint was sought for. It is also specifically stated in the affidavit that amendment sought for is purely for giving clarification and details with regard to their claim of title to the suit properties and documentary and oral evidence have already been given in support of their case and no fresh evidence need to be given. It is also stated that the amendment sought for does not change the nature of the suit or the cause of action thereof.
3.The said application filed by the plaintiffs was resisted by the petitioner herein as the contesting defendant. He filed a counter affidavit and stated that the amendment sought for is very lengthy and new facts are introduced which will change the entire subject matter of the suit and also the cause of action.
4.The Court below after considering the respective pleadings as well as the submissions made by both sides and upon considering the case laws cited on behalf of the parties, allowed the application, however by imposing a cost of Rs.2,500/- to be paid by the plaintiffs to the defendants on the reason that the application came to be filed belatedly. Aggrieved against the said order, the present Civil Revision Petition is filed by the second defendant.
5.Heard Mr.M.Himavanth, learned counsel appearing on behalf of the petitioner and Mr.D.Sivakumaran, learned counsel appearing on behalf of the respondents and perused the documents placed before me in the typed set of papers.
6.The learned counsel appearing for the petitioner would submit that the amendment application filed after a period of 11 years is liable to be rejected as it introduces new facts. He further submitted that once the issues were framed and evidences were let in by both parties, the amendment application is not entertainable at the post-trial stage. Therefore, according to the learned counsel, the amendment sought to be introduced is against the Proviso to Order 6 Rule 17 CPC introduced by way of Amendment Act, 2002. He also submitted that the affidavit filed in support of the amendment petition does not contain any details of amendment especially when the amendment sought by way of introducing Paragraph 2(a) is a lengthy one with more facts and figures. The plaintiffs are trying to introduce nearly about 15 documents by way of amendment of the plaint. In support of his submission, the learned counsel relied on the decisions reported in 2006 (3) CTC 27 (D.Ramanujam vs. R.Panneerselvam) and 2010 (3) MLJ 215 (S.Rajendran vs. K.Kanniah and others).
7.Per contra, Mr.D.Sivakumaran, learned counsel appearing for the respondents submitted that the amendment sought and permitted by the Court below though appears to be lengthy, does not alter the prayer, frame of the suit and nature of the suit. He also submitted that the amendment is not contrary to the pleadings already made and on the other hand it is only a further elucidation of the facts and pleadings already made in the original plaint. He also submitted that in the original plaint document No.12 was annexed which is a partition deed and the facts which are stated in the amendment petition are only to further explain as to how the suit properties have became their ancestral properties. It is also emphasised by the learned counsel appearing for the respondents that there is no necessity for any further pleadings or evidence on both sides since the amendment is not bringing out any new set of facts contrary to the facts already stated in the original plaint. The learned counsel also brought to the notice of this Court that in the affidavit filed before the Court below, the plaintiffs have specifically stated that documentary and oral evidences have already been given in the suit in support of their case and no fresh evidence need be given. In reiterating such contention before this Court, the learned counsel submitted that this Court can record the undertaking of the plaintiffs that they will not let in further oral evidence in pursuant to the amendment made and they will go ahead with the arguments of the case before the Court below. It is also specifically stated by the learned counsel that no additional documents are sought to be filed before the Court below in pursuant to the amendment. It is further submitted by him that as the pleadings in this case is of the year 1999 (plaint) and 2000 (written statement), the Proviso introduced to Order 6 Rule 17 CPC by Amendment Act, 2002 will not govern the case since such Proviso will have only prospective effect. In support of his pleadings, the learned counsel appearing for the respondents relied on the decisions reported in 2005 (3) CTC 321 (Rethinam alias Anna Samthiram Ammal and others vs. Syed Abdul Rahim), 2000 (1) CTC 163 (B.K.N.Pillai vs. P.Pillai), CDJ 2010 MHC 5706 (E.Ramasamy Gounder vs. M.Selvaraj and another), a Full Bench judgment of this Court 2006 (5) CTC 609 (Hi. Sheet Industries, a partnership firm carrying on business at 61-D, D.V.Road, Ambur Town, Vellore District vs. Litelon Limited, having its Office at No.68, Sipcot Industrial Complex, Hosur, rep. By its Managing Partner, S.Gokul and others) and 2009 (10) SCC 626 (Surender Kumar Sharma vs. Makhan Singh)
8.The respondents as the plaintiffs filed the suit for declaration and permanent injunction by claiming that they are the sons of one Chenna Reddy who is the son of Muni Reddy and the second defendant who is the petitioner before this Court is the son of one Thimma Reddy. It is stated in the plaint that there was a partition of the joint family properties under the registered Partition Deed dated 05.02.1991 and the respective parties therein got their specified share of the joint family properties allotted in the partition. It is further stated that a further partition took place on 28.08.1992 between the sons of Chenna Reddy and the A schedule property mentioned therein fell to the share of K.C.Muni Reddy, B schedule property to the share of K.C.Chinnamuni Reddy, C schedule to C.Chandra Reddy and D schedule to C.Srinivasa Reddy. It is further stated that the legal and physical possession of the suit schedule mentioned properties were given to the individual allottees. The plaintiffs who are the sons of Chenna Reddy are in possession and enjoyment of the suit properties and the first defendant by taking advantage of the name of Muni Reddy which is common in the family, was trying to trouble the plaintiffs by creating encumbrances or alienation of the schedule mentioned properties even though he has no title, possession and enjoyment over the same. The first defendant died pending suit and the surviving sons and daughters of the first defendant were brought on record as defendants 3 to 13 apart from the 4th son who is arrayed as the second defendant and he is already on record. A bare perusal of the original plaint filed by the plaintiffs would show that they claim the suit properties as their ancestral properties and as there was an attempt of questioning their title as well as possession, the said suit came to be filed. No doubt the suit filed in the year 1999 came up for trial only in the year 2010 and after framing the issues, the parties were allowed to let in their respective evidence and they have also completed such process. It is seen that when the matter was posted for arguments, the plaintiffs came out with the application under Order 6 Rule 17 CPC. When the details of amendment sought to be introduced by the plaintiffs are perused, it shows that the plaintiffs have claimed the suit properties mentioned in the schedule A and B as their ancestral properties. Further it is elaborated as to how the suit properties became their ancestral properties by tracing their title to the earlier documents of title of their ancestors. No doubt the plaintiffs have given a detailed and lengthy facts with regard to the ancestral nature of the suit properties. It is also true that they have referred to various documents in their amendment sought to be introduced. But still the fact remains that they have not changed the nature of their claim over the suit properties and they stick on to such claim as the ancestral properties only. What is sought to be stated by way of amendment is only the elucidation of further facts with regard to the ancestral character of the suit properties. Therefore the Court below, considering the said fact that the plaintiffs have not introduced any new cause of action or new case and even the suit schedule properties have also not been changed, allowed the application, however by imposing a cost of Rs.2,500/- on the ground that the application came to be filed belatedly, i.e., after a period of 11 years from the date of the original plaint. The Court below has also found that the defendants will be given due opportunity to cross-examine the witnesses.
9.The plaintiffs also prayed for further amendment of the prayer by specifically seeking for declaration of title of the first plaintiff in respect of A schedule property and that of the second plaintiff in respect of B schedule property and accordingly they paid the necessary Court fees. Here again, the prayer sought to be amended does not alter the nature of the suit nor it gives any separate cause of action. Originally both the plaintiffs sought declaration of their title to both the suit items jointly and now by way of amendment they specify their claim over respective items separately. The Court below has considered all the facts and circumstances and also by considering the various case laws, allowed the application subject to the payment of cost of Rs.2,500/-. I find that the order passed by the Court below does not warrant any interference as there is no illegality or infirmity, as the amendment sought for is only elucidating the facts already stated in the original plaint and does not alter the nature of the suit.
10.The learned counsel appearing for the petitioner relied on the decisions reported in 2006 (3) CTC 27 and 2010 (3) MLJ 215 to contend that the amendment of pleadings cannot be allowed after commencement of trial and the parties seeking amendment should exercise due diligence and seek for such amendment before commencement of trial. In both the decisions proviso to Order 6 Rule 17 CPC was taken into consideration and thus the learned Judges found that once the trial has commenced, no application for amendment of the pleadings can be allowed unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. It is seen that the Proviso to Order 6 Rule 17 CPC was introduced by Act 22 of 2002 and applicability of the Proviso to the case instituted prior to 01.07.2002 was considered by the Hon'ble Full Bench of this Court in a decision reported in 2006 (5) CTC 609 in which it has been held that Proviso to Order 6 Rule 17 CPC is applicable to the pleadings instituted with effect from 01.07.2002 only and not to the pleadings instituted prior to 01.07.2002. Thus the Hon'ble Full Bench decision of this Court squarely covers the issue on hand since the suit in this case was instituted in 1999. In fact a learned Single Judge of this Court in another decision reported in 2005 (3) CTC 321 considered the very same issue and found that any pleadings filed before 01.07.2002 would not be governed by the Amended Act and the amendment of pleadings is to be decided as per law as it stood prior to 01.07.2002 in respect of such cases. Thus the decisions relied on by the petitioner's counsel are factually distinguishable.
11.The learned counsel appearing for the petitioner also relied on the decision reported in 2012 (2) SCC 300 (J.Samuel and others vs. Gattu Mahesh and others), MANU//SC/7703/2008 (Rajkumar Gurawara (Dead) thr. L.Rs. vs. S.K.Sarwagi and Co. Pvt. Ltd. and another) and an unreported decision of this Court made in Kta Raja Chettiar and K.Pandian vs. Tmt.Rajamani and others dated 25.01.2007.
12.In all those decisions, a perusal of the facts of those cases would disclose that respective suits therein were filed after 2002 amendment and therefore in view of the decision made by the Hon'ble Full Bench of this Court referred above the learned counsel appearing for the petitioner is not correct in relying on those decisions in support of his submissions.
13.The learned counsel appearing for the respondents relied on the decision reported in 2009 (10) SCC 626 to contend that wide powers and unfettered discretion have been conferred on the Court to allow amendment of pleadings and even if such an application for amendment filed belatedly, such amendment cannot be refused if it is found that for deciding the real controversy between the parties it can be allowed on payment of cost. Paragraph Nos.5, 6 and 7 of the said decision are extracted hereunder:
"5.As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment.
6.It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise. [See B.K. Narayana Pillai Vs. Parameswaran Pillai]. Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed.
7.So far as the second ground is concerned i.e. the prayer for amendment of plaint, if allowed, shall change the nature and character of the suit, we are unable to accept this view of the High Court. We have carefully examined the amendment prayed for and after going through the application for amendment of the plaint, we are of the view that the question of changing the nature and character of the suit, if amendment is allowed, cannot arise at all. The suit has been filed for eviction inter alia on the ground of arrears of rent. It cannot be disputed that even after the amendment, the suit would remain a suit for eviction. Therefore, we are unable to agree that if the amendment of the plaint is allowed, the nature and character of the suit shall be changed. Accordingly, the High Court was not justified in holding that the nature and character of the suit shall be changed, if such prayer for amendment is allowed."
14.In this case also the Court below has found that amendment sought to be introduced does not alter the nature and character of the suit. However as it is found that the application was filed belatedly it has suitably compensated the defendants by imposing a cost of Rs.2,500/-. In my considered view, the above decision of the Apex Court squarely covers the issue and favours the respondents.
15.In another decision reported in 2000 (1) CTC 163, the Apex Court has considered the scope and object of Order 6 Rule 17 CPC and observed at Paragraph No.3 as follows:
"3.The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
16.From the perusal of the said decision of the Hon'ble Supreme Court, it is seen that in order to avoid multiplicity of litigation, it is always better to allow the amendment of the pleadings so long as such amendment does not alter the nature or character of the suit or introduce any new cause of action between the parties. Even if such amendment is sought to be introduced at a belated stage, still the parties can be compensated by imposing cost. After all, by allowing such amendment, the real controversies between the parties would further get enlightened or clarified for the Court to arrive at a just and proper conclusion ultimately.
17.In another decision reported in CDJ 2010 MHC 5706, the learned Single of this Court considered the scope of Order 6 Rule 17 CPC and found that by allowing the amendment it has to be seen as to whether any new cause of action will arise or will it in any way change the nature of the suit or any prejudice will be caused to the nature of the suit or the amendment sought to be introduced is in any way barred by limitation. Considering all these aspects, the learned Judge found that amendment sought for in that case does not warrant any interference.
18.Considering all those facts and circumstances as well as the case laws relied on by both sides, I am of the view that the amendment sought for and permitted by the Court below is perfectly in order and does not warrant any interference. The defendants have also been suitably compensated by imposing a cost of Rs.2,500/- and it is stated by the learned counsel appearing for the respondents that the said amount has already been deposited. In view of the above, I am of the considered view that the Civil Revision Petition has no merits and the same is liable to be dismissed.
19.The learned counsel appearing for the petitioner finally submitted that in case this Court is not convinced with the merits, the second defendant may be permitted to file additional written statement as against the amendment introduced by the plaintiffs. The plaintiffs have already stated before the Court below and reiterated the same before this Court that they are not going to let in any evidence based on the amendment. Hence, the second defendant is at liberty to file additional written statement and if it is so warranted and necessitated, the second defendant is also at liberty to adduce fresh evidence.
20.In the result, the Civil Revision Petition is dismissed. No costs. Consequently connected miscellaneous petition is closed.
cse To The District Munsif Court Hosur