Madras High Court
E.K.Palanisamy vs Manonmani on 26 August, 2014
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2014 CORAM : THE HONOURABLE MS.JUSTICE R.MALA C.R.P(PD).No.3015 of 2011 and M.P.No.1 of 2011 E.K.Palanisamy .. Petitioner Vs. 1.Manonmani 2.Paneer Selvi 3.Kamalavalli .. Respondents Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of India, against the fair and decreetal order dated 17.06.2011 made in I.A.No.51 of 2011 in O.S.No.208 of 2008 on the file of the District Munsif Court, Kangeyam. For Petitioner : Mr.N.S.Sivakumar For Respondents : Mr.N.Manokaran O R D E R
Civil Revision Petition is filed against the fair and decreetal order dated 17.06.2011 made in I.A.No.51 of 2011 in O.S.No.208 of 2008 on the file of the District Munsif Court, Kangeyam.
2.The respondents herein as the plaintiffs filed a suit for bare injunction stating that the suit property is the ancestral property of their father Kaliappa Gounder and he was in possession and enjoyment of the same and he paid kists and since he died intestate on 03.01.2011, the plaintiffs, who are the daughters of Kaliappa Gounder and his wife are succeeded the property. The plaintiffs have partitioned the property and in pursuance of the partition, there was a mutation of revenue records. Since the defendant/revision petitioner herein, without any right, attempted to interfere with their peaceful possession and enjoyment of the suit property, the plaintiffs constrained to file a suit for bare injunction.
3.The defendant has filed a written statement stating that Kaliappa Gounder is not in possession and enjoyment of the suit property and patta also not stands in his name. The suit property and other properties are owned by one Subbaraya Gounder, who died bachelor, but he adopted his brother's daughter namely, Valliammal, who is the mother of defendant. The said Subbaraya Gounder had executed the Will in favour of the defendant and his brothers on 15.09.1976 and he died in the year 1977 and as legatees, the defendant and his brothers are in possession of the suit property. The father of the defendant namely, Kumarasamy Gounder purchased the suit property and other properties on 15.09.1976 from Valliammal and Pappathiammal and he died on 18.09.1982 and in pursuance of the sale deed and Will, the defendant and his brothers are in possession and enjoyment of the same and the defendant has purchased the properties from his brothers on 04.03.2008 and he is in possession and enjoyment of the same and the mutation of revenue records have also been made in this regard. So the partition deed executed between the plaintiffs is not true and genuine.
4.After settlement of issues, on the side of the plaintiffs, P.W.1 to P.W.3 were examined. On the side of the defendant, D.W.1 was examined and while he was in witness box, the plaintiffs/respondents herein have come forward with the application in I.A.No.51 of 2011 to amend the plaint for adding prayer for declaration of title. The trial Court, after hearing both sides, allowed the application, against which, the present revision petition is preferred by the revision petitioner/defendant.
5.Learned counsel for the revision petitioner/defendant submitted that the amendment application was filed by the plaintiffs after commencement of trial. As per proviso to Order VI Rule 17 of C.P.C., the plaintiffs are not entitled to amend the prayer in the plaint after commencement of trial and they have not pleaded that due diligence, they are unable to collect the materials for amendment. That factum was not considered by the trial Court. Hence, he prayed for allowing the revision petition.
6.Resisting the same, learned counsel for the respondents/plaintiffs submitted that the grand father of the respondents/plaintiffs namely, Kuppanna Gounder purchased the property and that has been succeeded by the plaintiffs/respondents, since their father Kaliappa Gounder died intestate. Thereafter, the respondents/plaintiffs entered into partition between themselves and in pursuance of the same, they are in possession of the suit property. Since the revision petitioner/defendant has denied the title, they are claiming title under the Will alleged to be executed by Subbaraya Gounder, who is alleged to be the owner of the suit property. So the plaintiffs forced to file the amendment application to amend the prayer for declaration of title. It is further submitted that if the amendment will be carried out, no new cause of action will arise for the suit and the claim is not barred by limitation and nature of the suit would not be changed. All the above aspects are rightly considered by the trial Court and allowed the application, because of the delay in filing the application, costs have been awarded by the trial Court. Therefore, he prayed for dismissal of the revision petition.
7.Considered the rival submissions made on both sides and perused the typed set of papers.
8.The respondents herein as the plaintiffs filed a suit for bare injunction stating that the suit property is their ancestral property and since their father Kaliappa Gounder died intestate, the plaintiffs succeeded the property and thereafter, they divided the property and they are in possession of the same.
9.Admittedly, the suit was filed on 17.06.2008 and the written statement was filed during July 2009 and trial has been commenced during February 2010 and the application for amendment was filed on 05.01.2011 after commencement of trial.
10.As per the proviso to Order VI Rule 17 of C.P.C., if the plaintiffs have come forward with the amendment application after commencement of trial, they have to plead that due diligence, they are unable to collect the materials for amendment.
11.In the written statement, the defendant disputed the plaintiffs' title to the suit property stating that the plaintiffs filed the suit by creating some false documents in their names without any basis.
12.The learned counsel for the respondents/plaintiffs has fairly conceded that the written statement was filed during July 2009, before commencement of trial. But the amendment application was filed on 05.01.2011 after closing of plaintiffs' side evidence and D.W.1/defendant was in witness box.
13.Now this Court has to decide whether the plaintiffs/respondents herein have pleaded that due diligence that he is unable to collect the materials for amendment. Before going to the merits of the case, it is appropriate to consider the decision of the Apex Court and this Court relied upon by the learned counsel for the revision petitioner reported in 2013 (9) SCC 485 (Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka and others), wherein it was held that there is no ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. Para-8 is extracted hereunder:
8. Indisputably, Respondent 1 plaintiff was the office-bearer of the Society at the relevant time and by Resolution taken by the Society Respondent 1 was authorized to complete the transaction. Hence, it is incorrect to allege that Respondent 1 - plaintiff was not aware about the transaction of 1989. Moreover, before the institution of the suit in the year 2010, the plaintiffs allegedly came to know about the Conveyance Deed dated 8th February, 1989, some time in the year 2009, but relief was not sought for in the plaint which was filed much later i.e. 14th October, 2010. The High Court has not considered these undisputed facts and passed the impugned order on the general principles of amendment as contained in Order VI Rule 17 of the Code of Civil Procedure. Hence we do not find any ground for allowing the amendment sought for by the plaintiffs which was not only a belated one but was clearly an afterthought for the obvious purpose to avert the inevitable consequence. The High Court has committed serious error of law in setting aside the order passed by the trial court whereby the amendment sought for was dismissed. The impugned order of the High Court cannot be sustained in law. As already stated that the suit was filed on 17.06.2008 and the written statement was filed during July 2009. The trial was commenced during 2010. In para-3 of the written statement itself it was stated that the suit is not maintainable without claiming declaration of title. In para-4 and 5 of the written statement, the defendant stated that the plaintiffs' father did not inherit the suit property and it is not his ancestral property and further stated that as to how he got the property. But the plaintiffs, kept quite all along and at the time of examination of D.W.1, have come forward with the application for amendment. So I am of the view, the above citation is squarely applicable to the facts of the present case.
14.Learned counsel for the respondents relied upon the following decisions:
(i) In 2014 (1) MWN (Civil) 184 (K.Duraisamy v. I.C.Subramaniam and others), wherein it has been held that after commencement of trial, the application filed to amend the plaint to include certain properties, if the amendment is not allowed, the suit is bad for partial partition. Para-15 to 18 are extracted hereunder:
15.A perusal of the copy of the Written statement filed by the Defendants would show that the Defendants have raised a plea that there is a partial partition, on the ground that some of the properties were left out by Respondents 1 to 3/Plaintiffs, without furnishing any details for such properties. However, in the part-heard suit, Respondents 1 to 3 as plaintiffs have taken steps to include the properties shown in the Application for the Partition. On the aforesaid circumstances, it cannot be said that there was no cause of action for filing the suit or change of character of the suit and the application seeking amendment was also allowed by the Court below. As contended by the learned counsel for respondents 1 to 3, in pursuance of the written statement filed by the Defendants, Respondents 1 to 3/Plaintiffs filed the application seeking amendment, so as to include the properties that were left out. Merely because it is a part-heard case, if the bona fide requirement of Respondents 1 to 3/Plaintiffs are rejected, that would certainly prejudice the claim of the Respondents 1 to 3, who are plaintiffs in the suit.
16.It is not the case of the Petitioner/Fifth Defendant that the property stated in the Interlocutory Application are his exclusive properties. Similarly, the Court cannot presume that Respondents 1 to 3/Plaintiffs have adopted any delay tactics in filing the Petition, seeking amendment of the Plaint. As decided by the Hon'ble Apex Court in Revajeetu Builders and Developers v. Narayanaswamy and Sons and others, 2010 (2) LW 917, the amendment sought for by Respondents 1 to 3 as Plaintiffs is bona fide, legitimate and honest and not a delay tactics with any mala fide intention. In such circumstances the delay alone could not be a ground to dismiss the Application filed by Respondents 1 to 3/Plaintiffs. After hearing both sides and the averments made in the Counter, the Court below properly considered and allowed the Amendment Petition.
17.Having considered the impugned order, this Court is of the view that the Court below has exercised its power properly and there is no improper exercise of its power. It cannot be disputed that law is only the means and justice is the end. In the Partition suit, if the property is left out, though Respondents 1 to 3/Plaintiffs have prima facie established that the property to be included for partition, only allowing the petition would be proper and complete justice.
18.In the light of decisions of the Hon'ble Apex Court and th is Court, referred to above, this Court is of the view that there is no error or infirmity in the impugned order so as to warrant any interference by this Court, hence, the Revision is liable to be dismissed as not legally sustainable. But the above decision is not applicable to the facts of the present case.
(ii)In (2013) (2) MWN (Civil) 395 (T.Raja Reddy v. C.Srinivasa Reddy and others), wherein it was held that by way of amendment, nature of the suit has been altered and that has been allowed by way of payment of costs to the petitioner/defendant. Para-14 to 18 are extracted hereunder:
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 (B.K.N. Pillai v. P.Pillai), 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 hyper technical 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 (E.Ramasamy Gounder v. M.Selvaraj and another), 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. But the above decision is not applicable to the facts of the present case.
(iii) In 2012 (7) MLJ 892 (Rani and another v. Chandra and others), wherein it was held that amendment petition was allowed after commencement of trial by including some other items of the property in the plaint. In para-5, it is held as follows:
5. Admittedly, the suit is for partition and in a suit for partition all the properties belonging to the family must be made available. It is the case of the revision petitioners that the properties which are sought to be included by way of amendment also belong to the joint family, though purchased in the names of the first respondent and her husband and those properties are also available for partition. As stated supra, in the written statement also, it is stated that two acres of property was purchased in the name of the husband of the first respondent and that property is also made available for partition. Though the first respondent denied the allegation that the properties were purchased out of joint family income and asserted that from their own income, the properties were purchased in their names, that can be decided only during trial and at this stage, the court need not have decided about the character of the properties. In the above decision, in para-14, it was further held that even after the amended Act of 2002, there is no total bar for allowing the amendment after the commencement of trial and if the parties are able to satisfy the requirement as contemplated as per proviso to Order VI Rule 17 of C.P.C., amendment can be allowed.
(iv)In 2012 (1) MWN (Civil) 753 (Dhanakotti v.Rani and others), wherein it was held that amendments seeking determination of real question of controversy between parties shall be permitted. Para-9 is extracted hereunder:
9. Therefore, as per the above Judgements, amendments seeking determination of the real question of the controversy between the parties shall be permitted. So far as the post-trial amendments are concerned, unless the aggrieved parties are prejudiced by the amendments the Courts are at liberty to allow the amendment application. In this case there is no question of prejudice caused to the revision petitioner as the amendment sought for did not change the character of the suit and no vested right accrued to the revision petitioner by reason of the disposal of the suit is sought to be taken by reason of the amendment. The suit was filed for declaration of release deed as void and the schedule of properties must only relate to the properties mentioned in the release deed. Admittedly, as the properties stated in the release deed were not included and some other properties were included and for that purpose the amendment application was filed and considering the same the lower appellate Court has rightly allowed the application and in my opinion no prejudice will be caused to the revision petitioner by allowing the amendment.
(v) In (2002) 2 SCC 2 (Prem Bakshi and others v. Dharam Dev and others), in para-6 and 7, it read as follows:
6.Now the question is whether the order in question has caused failure of justice or irreparable injury to respondent 1. It is almost inconceivable how mere amendments of pleadings could possibly cause failure of justice or irreparable injury to any party. Perhaps the converse is possible i.e. refusal to permit the amendment sought for could in certain situations result in miscarriage of justice. After all, amendments of the pleadings would not amount to decisions on the issue involved. They only would serve advance notice to the other side as to the plea, which a party might take up. Hence we cannot envisage a situation where amendment of pleadings, whatever be the nature of such amendment, would even remotely cause failure of justice or irreparable injury to any party.
7.From the facts extracted above it would show that the appellants only wanted to bring to the notice of the court the subsequent facts and after amendment of the plaint, respondent 1 would get opportunity to file written statement and he would be able to raise all his defence. Ultimately if the suit is decided against the respondent 1, he would have a chance to take up these points before the appellate court. It cannot be conceived of a situation that the proposed amendment if allowed would cause irreparable injury or failure of justice as the remedy of the respondent 1, as stated above, is by way of an appeal. We are, therefore, of the view that the order allowing the amendment would not come under clause (b). But the above decision is not applicable to the facts of the present case.
(vi) In (2009) 2 SCC 409 (Vidyabai and others v. Padmalatha and another), wherein it was held that Order VI Rule 17 of C.PC. is couched in a mandatory form. Para-10 is extracted hereunder:
10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), 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 therefor 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. Once the plaintiffs have come forward with the application for amendment after commencement of trial, they ought to have proved that due diligence, they are unable to collect the materials for amendment.
(vii) In (2008) 14 SCC 364 (Rajkumar Gurawara (dead) through Lrs., v. S.K.Sarwagi and company private Limited and another), wherein it was held that the amendment petition is liable to be dismissed, because he fails to satisfy the conditions prescribed in proviso to Order VI Rule 17 of C.P.C. Para-12, 13 and 18 are extracted hereunder:
12.In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under:-
"17. 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 all such amendments shall be made as may be necessary for the purpose of determining the real questions 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, the party could not have raised the matter before the commencement of trial."
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial.
13.To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
18.Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.
(viii) In (2012) 11 SCC 341 (Abdul Rehman and another v. Mohd. Ruldu and others), wherein it was held that amendment of plaint after commencement of trial, relief claimed by way of amendment if time barred is not permitted. Para-10 to 11 are extracted hereunder:
10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-
17.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 all such amendments shall be made as may be necessary for the purpose of determining the real questions 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, the party could not have raised the matter before the commencement of trial."
It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
11.The original provision was deleted by Amendment Act 46 of 1999, however, it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.
(ix) In (2012) 2 SCC 300 (J.Samuel and others v. Gattu Mahesh and others), wherein it has been held that there must be a reasonable cause for allowing amendment. In para-16, it is held as follows:
16.As stated earlier, in the present case, the amendment application itself was filed only on 24.09.2010 after the arguments were completed and the matter was posted for judgment on 04.10.2010. On proper interpretation of proviso to Rule 17 of Order VI, the party has to satisfy the Court that he could not have discovered that ground which was pleaded by amendment, in spite of due diligence. No doubt, Rule 17 confers power on the court to amend the pleadings at any stage of the proceedings. However, proviso restricts that power once the trial has commenced. Unless the Court satisfies that there is a reasonable cause for allowing the amendment, normally the court has to reject such request.
(x) In (2012) 5 SCC 337 (Ramesh Kumar Agarwal v. Rajmala Exports Private Limited and others), in para-21 and 22, it was held as follows:
21.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.
22.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.
(xi) In 2006-2-L.W.776 (Rajesh Kumar Aggarwal and others v. K.K.Modi and others), wherein it has been held that merits of the amendment cannot be looked into while allowing the amendment. Para-30 is extracted hereunder:
30.Since the Court has entered into a discussion into the correctness or falsify of the case in the amendment. We have no other option but to interfere with the order passed by the High Court. Since it is settled law that the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing prayer for amendment, the order passed by the High Court is not sustainable in law as observed by this Court in Sampath Kumar v. Ayyakannu and another, (2002) 7 SCC 559 = 2003-2-L.W. 21.
(xii) In 2006 (5) CTC 609 (Hi.Sheet Industries, a partnership firm, carrying on business at 61-D, D.V.Road, Ambur Town, Vellore District v. Litelon Limited, having its office at No.68, Sipcot Industrial Complex, Hosur, rep. by its Managing Partner, S.Gokul and others), wherein the Division Bench of this Court held that application for amendment is to be allowed when the amendment is necessary for the purpose determining the real question in controversy between the parties without changing the basic nature of the suit.
15.Considering the aforestated circumstances along with the above decisions, the suit was filed on 17.06.2008 and the written statement was filed by the defendant during July 2009 disputing the plaintiffs' title to the suit property. Hence, the plaintiffs have filed the application to amend the plaint for declaration of title to the property only on 05.01.2011. As per the dictum of the Apex Court in (2009) 2 SCC 409 (Vidyabai and others v. Padmalatha and another), proviso to Order VI Rule 17 of C.P.C. is mandatory.
16.At this juncture, learned counsel for the plaintiffs would take me through the affidavit filed in support of the application and submitted that since the previous counsel has given an instruction to withdraw the suit and file fresh suit, the plaintiffs have changed their counsel and traced the title deed stands in the name of their grand father and at this stage, it is necessary for the plaintiffs to file the application for amendment instead of withdrawing the suit. So due diligence, the plaintiffs unable to file the amendment application at an earlier point of time.
17.On considering para-3 of the affidavit filed in support of the application, it shows that since the defendant in his written statement disputed that the plaintiffs could not sought for bare injunction without claiming declaration of title and since the previous counsel has given an instruction to the plaintiffs to withdraw the suit and file fresh suit, the plaintiffs engaged a new counsel, who has instructed the plaintiffs to file the amendment application instead of withdrawing the suit. So the plaintiffs filed the amendment application, since the suit is for injunction restraining the defendant not to alienate the suit property and also not to interfere with their possession. In my considered opinion, the trial Court considered all the aspects in proper perspective and rightly allowed the application on payment of costs and the amount has also been deposited by the plaintiffs. So I do not find any merits in the revision petition and it is hereby dismissed.
18.In the result, the Civil Revision Petition is dismissed confirming the fair and decreetal order made in I.A.No.51 of 2011 in O.S.No.208 of 2008 on the file of the District Munsif Court, Kangeyam. No costs. Consequently, connected Miscellaneous Petition is closed.
26.08.2014 Internet:yes kj R.MALA,J.
kj To The District Munsif Court, Kangeyam.
Pre-delivery order in C.R.P(PD).No.3015 of 2011 and M.P.No.1 of 2011 26.08.2014