Madras High Court
Rajapunnisa vs Meharajan Begum on 26 September, 2013
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-09-2013 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.R.P. (PD) No. 3759 of 2011 and M.P. No. 1 of 2011 Rajapunnisa .. Petitioner Versus 1. Meharajan Begum 2. K. Narayanan .. Respondents Civil Revision Petition filed under Article 227 of The Constitution of India against the Order dated 10.01.2011 passed in C.M.P. No. 8 of 2009 in A.S. No. 445 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.IV, Chennai. For Petitioners : Mr. J. Kamaraj For Respondents : Mr. S.I. Samiullah for R1 Mr. J. Saravanavel for R2 ORDER
The Plaintiff in O.S. No. 339 of 2003 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai is the revision petitioner herein. The suit was filed for the relief of declaration to declare that the plaintiff is the owner of the suit property and for a consequential injunction to restrain the defendants/ respondents herein from interfering with her possession. The suit was partly allowed by a decree and judgment dated 29.01.2008 holding that the plaintiff is entitled for the relief of declaration, however, she is not entitled for the relief of consequential injunction inasmuch as she is not in possession of the suit property. Aggrieved by the decree and judgment dated 29.01.2008, the plaintiff has filed A.S. No. 445 of 2008 questioning the correctness of the decree and judgment passed by the trial court in so far as it disallowed the prayer for injunction.
2. Pending the first appeal, the plaintiff has filed C.M.P. No. 8 of 2009 in A.S. No. 445 of 2008 under Order VI Rule 17 of CPC to include the relief of recovery of possession as an alternative relief. This petition was opposed by the respondents by filing a counter contending that such a prayer sought for is barred by limitation. According to the respondents, the suit was filed in the year 2003 and it was filed for the relief of declaration and consequential injunction. While so, only to fill up the lacuna, the present petition has been filed pending this appeal. Further, the respondents would contend that the appeal was filed in the year 2008, but the plaintiff has chosen to file the present appeal only after a year and this clearly indicates that the plaintiff was not diligent in seeking the relief of recovery of possession.
3. The first appellate Court after hearing both sides and on perusal of the records, held that the plaintiff was not diligent enough in seeking the relief of recovery of possession during the pendency of the suit and such prayer is sought for only at the appellate stage that too after one year from the date of filing the appeal. Therefore, the first appellate Court held that the petition for amendment has been filed only to fill up the lacuna and dismissed the petition.
4. The learned counsel appearing for the plaintiff/revision petitioner would contend that the title in respect of the suit property has been upheld by the trial court. As against the same, the defendants have filed a cross-appeal. Pending appeal, the plaintiff/petitioner has filed the instant petition in I.A. No. 8 of 2009 by stating that when the plaintiff/petitioner was out of station, the second respondent herein encroached upon the suit property and started putting up construction, which resulted in filing of the suit. It is further stated that even in the suit, the plaintiff had categorically stated that the suit property was vacant, however, the trial court erroneously held that the petitioner was not in possession and dismissed the suit with regard to the relief of injunction. The learned counsel for the plaintiff/petitioner would vehemently contend that when the trial court had decreed the suit in so far as declaration of plaintiff's title, disallowing the relief of injunction is causing hardship to her and she could not enjoy the fruits of the decree passed by the trial court. Since the trial court has negatived the relief of injunction, it has become necessary for the plaintiff/petitioner to file the present petition for amendment of the pleadings in the plaint as an alternative relief.
5. The learned counsel for the plaintiff/revision petitioner brought to the notice of this Court that pending suit, the plaintiff/revision petitioner has filed I.A. No. 1279 of 2003 and obtained an order of interim injunction. On notice, the respondents/defendants have filed an affidavit of undertaking before the trial court in I.A. No. 1279 of 2003 15.10.2003 seeking to vacate the order of interim injunction restraining the second defendant/second respondent and to permit him to put up a construction without prejudice to his contention in the suit. In the affidavit of undertaking filed by the second defendant/second respondent it was categorically stated that he may be permitted to proceed with the construction and in the event of the plaintiff succeeding in the suit, he will not make any claim against the plaintiff towards the construction put up by him.
6. According to the learned counsel for the plaintiff/revision petitioner, the plaintiff was in possession of the suit property. At the time when the suit was filed, the suit property was vacant and thereafter, the second defendant had forcibly gained entry into the suit property and put up a construction. The second defendant himself accepted this in a tacit way and filed an affidavit of undertaking before the trial court in I.A. No. 1279 of 2013 seeking permission to put up a construction pending the suit as he has already obtained permission and that he will not claim any right or interest with the construction that he may put up in the event of the plaintiff succeeding in the suit. Based on such undertaking affidavit filed by the second defendant, the trial court modified the order of injunction n 16.10.2003 stating that "subject to the condition of waiving or undertaking not to claim the cost or value of construction in suit property in case of success by plaintiff in suit, respondent is permitted to raise construction to the ground floor level alone." Therefore, in view of such undertaking having been given given by the second defendant and the order dated 16.10.2003 passed by the trial court, the plaintiff has not sought for amending the plaint. Since the trial court has dismissed the relief of injunction, the plaintiff was constrained to file such a petition for amendment at the appellate stage.
7. In support of his contention, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court reported in (Abdul Rehman and another vs. Mohd. Ruldu and others) 2012 (5) CTC 803 wherein in para No.15, it was held that all amendments which are necessary for the purpose of determining the real questions in controversy between the parties should be allowed if it does not change the basic nature of the suit. It was also held that a change in the nature of relief claimed shall not be considered as a change in the nature of suit and the power of amendment should be exercised in the larger interest of doing full and complete justice between the parties. Relying on the aforesaid decision, the learned counsel for the petitioner submits that the petitioner was granted with a decree of declaration but her claim for injunction was refused. As against the same, she has filed a first appeal and it is pending. In view of the undertaking given by the second defendant/second respondent in the suit, the plaintiff has not filed any petition for amendment before the trial court and only when her claim for injunction was negatived by the trial court, she has filed the petition for amendment to include the prayer of recovery of possession. In those circumstances, the petitioner has filed the present petition for amendment to include the relief of recovery of possession and the same is required to be ordered in the interest of justice.
8. The learned counsel for the first respondent as well as the second respondent would contend that Order VI Rule 17 of CPC contemplates that amendment can be permitted only before commencement of trial and not later. In this case, the suit itself was decreed and during the pendency of the first appeal, the plaintiff has invoked the provisions of Order VI Rule 17 of CPC and sought for amendment of the plaint by including the relief of recovery of possession. Even the petition for amendment was not filed along with the first appeal, but one year after the appeal was filed. Furthermore, the defendants/ respondents have taken a plea before the trial court that they are in possession of the suit property by tracing their title through their predecessor in title for more than 30 years. After rejection of the relief of injunction sought for by the plaintiff, she cannot file a suit for possession and it is barred by limitation. While so, the present petition has been filed after lapse of time to fill up the lacuna in the case. In any event, the proposed amendment will alter the nature and character of the plaint filed before the trial court and if it is allowed, it will cause prejudice to the defendants/ respondents. In any event, the first appellate Court has considered these contentions and dismissed the petition for amendment by assigning reasons and it does not call for any interference by this Court.
9. The learned counsel for the first defendants/first respondent relied on the decision of the Supreme Court reported in (Vidyabai and others vs. Padmalatha and another) (2009) 2 SCC 409 to contend that Court should be satisfied that inspite of due diligence the party could not introduce amendment before commencement of trial and in its absence of such satisfaction, the Courts are not justified in entertaining amendment. The learned counsel for the first respondent also relied on the decision of this Court reported in (D. Ramanujam vs. R. Panneerselvam) 2006 (3) CTC 27 as well as the decision in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (D) by Lrs. (2008 4 Law Weekly 80) for the very same proposition that a party seeking amendment must show to the satisfaction of the Court that he or she had exercised due care and diligence.
10. The learned counsel for the second respondent also relied on the decision of this Court reported in (S. Rajendran vs. K. Kanniah and 6 others) (2010) 1 CTC 837 and submitted that if the amendment proposed is sought to be made before the commencement of the trial, the jurisdiction of the Court is limited and the Court will have no jurisdiction at all to allow the amendment of the plaint. In that decision, this Court held that the Court has ample power to entertain a petition seeking amendment if it comes to a decision that the amendment is necessary to decide the real disputes arisen between the parties. But such a power given to the Court is circumscribed by the proviso found under the Order 6 Rule 17 of CPC. Unless the Courts records the existence of the contingency provided under the proviso under Order 6 Rule 17 of CPC, the petition for amendment after the commencement of trial cannot be entertained. In this case, the amendment is sought for in the appellate stage after the suit itself was decreed and therefore, the amendment petition is not maintainable.
11. I heard both sides and perused the materials on record. The plaintiff has instituted the suit in O.S. No. 339 of 2003 praying for the relief of declaration and consequential injunction. After contest, the suit was decreed on 29.01.2008 by granting a declaratory relief but refused to grant the relief of interim injunction. Aggrieved by the same, the plaintiff/petitioner herein has filed A.S. No. 445 of 2008 before the first appellate Court. Pending first appeal, the petitioner has filed the instant petition in C.M.P. No. 8 of 2009 under Order VI Rule 17 of CPC to amend the pleadings in the plaint to include the relief of recovery of possession as an alternative relief. The petition was not filed along with the first appeal, but one year after filing the appeal. This delay, according to the defendants/respondents herein is only an attempt on the part of the petitioner/plaintiff to fill up the lacuna.
12. It is seen from the records that at the time when the suit was filed, the plaintiff has taken a specific stand that the suit property is vacant and she is in possession and enjoyment of the same. The trial court also granted an order of injunction on 28.01.2003 in I.A. No. 1279 of 2003. On notice, the second defendant/second respondent herein filed an affidavit of undertaking specifically undertaking that he may be permitted to put up a construction in the suit property and in the event of plaintiff succeeding in the suit, he will not make any claim towards the cost of construction put up by him. In other words, the second defendant sought permission to put up construction in the suit property at his own costs and risk and he will not create any third party right in the suit property till the finality of the case. By giving such an undertaking, the second defendant/ second respondent sought to modify the order of injunction passed in I.A. No. 1279 of 2003. Accordingly, by recording the undertaking given by the second defendant/second respondent, the trial court, by order dated 16.10.2003, modified the order of injunction permitting the second respondent/second defendant to put up a construction only upto ground floor level alone and if the plaintiff succeeds in the suit, he shall not claim any right over the construction put up by him. The order dated 16.10.2003 further reads that subject to undertaking filed in this petition and subject to the result of the suit, there will be an interim injunction restraining the respondents from raising any construction over and above ground floor portion of suit property till the disposal of the suit. Thus, it is evident that the suit was filed by the plaintiff and she obtained an order of injunction and it was subsequently modified on 16.10.2003 at the instance of the second respondent herein by filing an undertaking affidavit. Therefore, it is evident that at the time when the suit was filed, it was only a vacant land and subsequently, after obtaining permission, the second respondent had put up a construction. Therefore, the contention of the plaintiff/revision petitioner that she did not seek for the relief of recovery of possession is well founded. The Plaintiff's contention that she was under the impression that if title is proved she will be automatically entitled for injunction is also plausible. The suit was therefore filed only for declaration of title and consequential injunction and a declaratory relief was also granted by the trial court. During the pendency of the suit alone, on the basis of undertaking given by the second respondent, he was permitted to put up a construction subject to certain conditions. In any event, the plaintiff was granted the relief of declaration of her title to the suit property, however, her claim for relief of injunction was negatived. Therefore, the plaintiff has filed A.S. No. 445 of 2008 and the defendants have also filed cross-appeal. Thereafter, the plaintiff has filed the instant application for amendment to include the relief of recovery of possession as an alternative. In the above facts and peculiar circumstances of this case, I am of the view that the nature of amendment sought for by the plaintiff/revision petitioner will not in any way alter the nature and character of the lis between the parties.
13. The decision reported in (Abdul Rehman and another vs. Mohd. Ruldu and others) 2012 (5) CTC 803 relied on by the counsel for the petitioner is squarely applicable to the present case on hand. In that case the appellants approached the trial court with a prayer for permanent prohibitory injunction against the respondents 1 to 3 from forcibly dispossessing the appellants. In the suit written statement was also filed and immediately thereafter, the appellants have filed an application for amendment. The application for amendment was dismissed by the trial court as well as the High Court. As against the same, the matter was taken up to Supreme Court. The Supreme Court, considering the fact that the application for amendment was filed immediately after filing of the written statement and such amendment did not change the nature and character of the suit, allowed the appeal permitting the appellant to include the relief of declaration in the suit.
14. In the decision of the Honourable Supreme Court reported North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das (D) by Lrs. (2008 4 Law Weekly 80) relied on by the counsel for the first respondent, it has been held that all amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. Even this decision is applicable to the facts of this case. As mentioned above, the second defendant filed an affidavit of undertaking based on which the order of interim injunction was modified and he was permitted to put up construction pending the suit. Thereafter, since the relief of injunction was negatived and the defendants also filed cross-appeal, the instant application was filed by the plaintiff at the appellate stage. The Court has to see whether the amendment sought for is necessary for the purpose of determining the real question in dispute. In this case, definitely, for deciding the dispute involved in this case, especially when the defendants themselves admitted that they had put up construction pending suit, the proposed amendment is essential.
15. In this case, the petition for amendment has been filed at the appellate stage seeking to amend the plaint to include the relief of recovery of possession. The defendants/respondents have filed written statement in the suit contending that they are in possession of the suit property. It is contended by the defendants/respondents herein that soon after the written statement is filed, the plaintiff ought to have sought for necessary amendment, but she failed to do so. In the above circumstances, it has to be held that the plaintiff/petitioner has not been diligent enough in seeking the amendment. If the amendment is allowed, it will cause prejudice to the respondents. This contention of the defendants/respondents cannot be countenanced in view of the affidavit of undertaking filed by the second defendant/second respondent herein pending suit and he had put up the construction after obtaining permission from the trial court. The trial court granted permission on condition that the defendants should not make any claim in the event of plaintiff succeeding in the suit. Therefore, in view of the operation of the order of interim injunction till the disposal of the suit, the plaintiff did not seek for the relief of recovery of possession and only when the relief of interim injunction was negatived by the trial court, she filed the appeal and sought for amending the plaint to include the relief of recovery of possession as an alternative relief.
16, In this context, it will be useful to refer to the decision reported in (J. Samuel and others vs. Gattu Mahesh and others) 2012 (2) CTC 94 wherein the Honourable Supreme Court dealt with the power of the Court to allow application for amendment in genuine and deserving cases. In para-16 of the said judgment, it was held that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. It was further held that the entire object of the amendment to Order 6 Rule 17, as introduced in 2002, is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It was further held that it also helps checking the delays in filing the applications. In the light of the above decision of the Honourable Supreme Court, I am of the view that this is a fittest and deserving case where the first appellate Court ought to have allowed the application for amendment inasmuch as the plaintiff could not file the application for amendment before the trial court in view of the affidavit of undertaking filed by the second defendant/second respondent herein and the consequential order dated 16.10.2003 passed by the trial court modifying the order of injunction originally granted in favour of the plaintiff with a condition that the second defendant can put up a construction upto ground floor level alone and in the event of the plaintiff succeeding in the suit, he should not make any claim towards the construction put up by him.
17. In the result, the Civil Revision Petition is allowed by setting aside the Order dated 10.01.2011 passed in C.M.P. No. 8 of 2009 in A.S. No. 445 of 2008 on the file of the Additional District and Sessions Judge, Fast Track Court No.IV, Chennai. No costs. Consequently, connected miscellaneous petition is closed.
26-09-2013
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To
The Additional District and Sessions Judge
Fast Track Court No.IV
Chennai.
B. RAJENDRAN, J
rsh
C.R.P. (PD) No. 3759 of 2011
26.09.2013