Madras High Court
Madan Mohan vs R. Pandiyan on 12 August, 1994
Equivalent citations: (1995)1MLJ275
ORDER N. Arumugham, J.
1. As the Bar has insisted me to dispose of the civil revision petition alongwith the miscellaneous petitions and as the matter lies in a very short compass, I have heard to whole case and disposed of the civil revision petition itself.
2. The defendant is the revision petitioner herein, who resisted the suit filed by the respondent before the trial court. The suit is for declaration of plaintiff s title to the entire suit property and for consequential relief of injunction, originally. The two reliefs were asked for by the respondent herein on the basis that the suit property was purchased by him from the wife and son of one Muthukumaraswamy, who is the original owner, under the sale deed dated 6.3.1982. The suit was resisted by the defendant inter alia contending that the defendant is in possession of the property in the capacity of a owner by purchasing the same from the original owner Muthukumaraswamy himself under a registered sale deed dated 10.3.1982. However, it was admitted in the written statement that the suit property was an ancestral property of Muthukumaraswamy.
3. After a long lapse of time, an amendment was sought by the plaintiff under Order 6, Rule 17, Code of Civil Procedure, by which an alternate prayer for possession of the suit property was sought to be included in case if the court found that the possession was with the defendant. The court below granted the prayer and the plaint has been amended accordingly. Again, after a lapse of considerable time and during the course of trial when P.W.1 was in the box, another attempt was made on behalf of the plaintiff by filing a petition for amendment under Order 6, Rule 17, C.P.C. seeking to add an alternate prayer for partition of half share in the suit property in case if the court found that the plaintiff was entitled to half share as the property was a joint family property. Of course this petition was resisted stoutly by the defendant. However, the trial court, on the ground of avoiding multiplicity of proceedings, accepted the case of the plaintiff and permitted him to amend the plaint with the alternate prayer for the second time. Aggrieved at this, the defendant has canvassed this revision petition and also obtained an order of stay of further proceedings. The trial of the suit initiated in the year 1982 is thus stalled by the present revision petition.
4. I have heard the Bar for and against the relief asked for in this revision petition and also perused the impugned order passed by the learned trial Judge. The fact remains that the suit property in its entirety belongs to one Muthukumaraswamy whose wife and son sold away the property to the plaintiff under a sale deed, above referred to. Likewise, the defendant herein is also alleged to have purchased the entire suit property from Muthukumaraswamy himself by means of a registered sale deed. Though this sale deed is subsequent to the sale deed of the plaintiff, the defendant is admittedly in possession of the suit property and for that reason an alternate prayer for recovery of possession sought for under Order 6, Rule 17, C.P.C, has been permitted to be added on a prior occasion. After a long lapse of time and when the trial of the suit has been commenced and specially when the plaintiff is in the witness box, the plaintiff has come forward with another application under Order 6, Rule 17, C.P.C, seeking to add the prayer for partition of his half share in the event the court found that the plaintiff was not entitled to the entire suit property on the basis that the suit property is an ancestral property of his vendors. This petition was allowed by the trial Judge and hence a grievance is exposed in this revision.
5. Order 6, Rule 17, C.P.C. is extracted as hereunder:
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.
By a casual reading of this Rule, it is made clear that the power is vested with the court to allow an amendment during their pendency of any proceeding in furtherance of the interest of justice, notwithstanding the period of law or limitation. This, however, does not mean that the power of the court to allow an amendment is an automatic one. Due care and caution has to be exercised in determining the real question in controversy and the same has to be identified by the court of law while allowing an amendment, is the sine qua non for exercising this wider power. While exercising such wider power, it must be the duty of the court to see that the amendment, if allowed, does not change or alter the character and nature of the suit with reference to its cause of action. It is well settled that while allowing amendment the Court has to see that the very structure and spirit of the suit is not transgressed, changed or altered in any manner. A casual perusal of the impugned order demonstrates the fact that the trial court has not certainly applied the above principle of law. The amendment seeking an alternate prayer for partition is a totally distinct and distinguishable one from the original relief sought for. In a suit for partition, the plaintiffs and defendants are deemed to be parties entitled to have a common or a fraction of share in the suit property and even if the plaintiff succeeds the court can grant a decree in respect of the shares due to the defendant also. But in the suit for declaration and other consequential reliefs it may not be like that. Therefore, if the prayer for partition is to be inserted, in my considered view, it will definitely change and alter the very character and nature of the suit. This aspect has been totally and completely overlooked by the trial Judge. In short, the plaintiff cannot claim extraordinary privileges by going on adding prayers one after another at his whims and fancies disregarding the fact that the suit is pending for more than 12 years. If this impugned order is sustained, I am afraid I shall be guilty in encouraging the non-following of the procedural law mandated by the Code of Civil Procedure. True, after getting a declaration, it is always open to the plaintiff to take necessary legal action to get his share quantified and identified, but the present suit being one for declaration and consequential injunction cannot be altered into a suit for partition. For the aforesaid reasonings, I am unable to accept the arguments advanced by Mr. K. Ramu, learned Counsel appearing for the respondent.
6. In the result, the civil revision petition is allowed, however, with the observation that the above observations will help the respondent herein to work out his remedy if so advised. There will be no order as to costs.