Madras High Court
A.Muthumariappan vs P.R.Sundaram on 30 October, 2024
C.R.P.No.4174 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.10.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
C.R.P.No.4174 of 2024
and
C.M.P. No.23074 of 2024
A.Muthumariappan ... Petitioner / Respondent
Vs.
1.P.R.Sundaram
2.K.M.Yogeswaran ... Respondent / Petitioner
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the order passed by the Principal District Munsif Alandur
in IA No.132 of 2016 in OS No.311 of 2000 dated 22.07.2024 by allowing
this CRP.
For Petitioner : Mr.R.Manickavel
For Respondent 1 : Ms.Harini
ORDER
This civil revision petition arises against the order of the learned Principal District Munsif at Alandur in IA.No.132 of 2016 in OS.No.311 of 2000 dated 22.07.2024.
2. O.S.No.311 of 2000 is a suit for permanent injunction restraining the https://www.mhc.tn.gov.in/judis 1/29 C.R.P.No.4174 of 2024 defendants, their men, agents and subordinates from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule mentioned property.
3. The case of the plaintiff is that he purchased the property from one K.M.Yogeswaran, the second defendant in the suit. The purchase was by way of a registered document in document No.2776 of 1991 dated 19.09.1991. The suit schedule mentioned property, being a vacant land measuring about 3200 sq.ft., the plaintiff claimed injunction on the basis of title to the same. Since certain persons attempted to trespass into the property, the plaintiff lodged a police complaint. He came to know that unknown persons had been sent at the instance of the defendants and hence, he came forward with the suit for the aforesaid relief.
4. The first defendant filed a detailed written statement. In the said written statement, he did not specifically dispute the title of the plaintiff. He pleaded that the larger portion of the property including the suit property belonged to one Kothandarama Naicker and one Nagarathinammal. They had sold the property on 15.06.1964 to one P.A.Kubera Munusamy. The said P.A.Kubera Munusamy had plotted out the said property into several plots https://www.mhc.tn.gov.in/judis 2/29 C.R.P.No.4174 of 2024 and had sold the plots individually. He had sold plot No.16 to one S.Krishnamachariar on 05.12.1966. The said S.Krishnamachariar had, in turn, alienated the property to the defendant through M/s.Minerva Enterprises, a firm of real estate brokers on 28.08.1972. As the first defendant was working in the armed forces, he was not in a position to visit to the property frequently. When he do so, in April 2000, in order to start the construction activities, he came to know that the first defendant is also staking claim over the same property. Soon thereafter, a suit came to be filed.
5. After the suit was pending for sometime, an additional written statement was filed by the first defendant denying the title of the second defendant, the vendor of the plaintiff.
6. The parties went for trial, evidence had been concluded and the matter had been reserved for judgement in the year 2011. At that stage, the plaintiff filed an application to summon the Tahsildar, who had issued a patta to him. This application in I.A.No.604 of 2011 came to be dismissed on 26.04.2011. Challenging the same, a revision was preferred to this Court in C.R.P.(PD).No.3152 of 2011. The revision came to be dismissed on 22.10.2013. Thereafter, the plaintiff took out an application for amendment of https://www.mhc.tn.gov.in/judis 3/29 C.R.P.No.4174 of 2024 plaint seeking to add the relief of declaration alone, in I.A.No.136 of 2016. The said application was kept pending by the Trial Court from 2016 till 08.11.2023. On 8.11.2023, the petition was dismissed for default. An application was taken out for restoration of said petition which came to be allowed by the learned Principal District Munsif on 22.07.2024 on condition that I.A.No.136 of 2016 should be argued on that date.
7. I.A.No.136 of 2016, as pointed out above, is an application for amendment. In the said application, the plaintiff pleaded that when the matter was listed for arguments, he took the papers for consultation with few senior lawyers and they had advised him that it is necessary to amend the plaint and include the relief of declaration. Consequently, he filed an application for amendment. The relief sought for in the amendment application does not seek to amend the averments or introduce any new pleadings in the plaint. It seeks to include the relief of declaration that the suit property belongs to the plaintiff.
8. This application was opposed by the first respondent/first defendant stating that the application is being filed after 16 years of presentation of the plaint and hence, barred by limitation. It added the idea of the petitioner to https://www.mhc.tn.gov.in/judis 4/29 C.R.P.No.4174 of 2024 prolong the litigation, even after conclusion of the trial. Not being a pre-trial amendment, he pleaded that the same requires to be dismissed in liminie.
9. Further plea was raised that, in case, the amendment is allowed, the Munsif Court will lose its jurisdiction over the suit and therefore, the amendment application is not maintainable. The learned District Munsif agreed with the respondents and dismissed the application. Hence, this revision.
10. I heard Mr.R.Manickavel for the civil revision petitioner and Ms.Harini for the first respondent. The second respondent had remained exparte in the court below. Hence, notice was dispensed with on the second respondent.
11. Mr.R.Manickavel argues that the plaintiff is not seeking to amend any of the averments made in the plaint. He only wants to add a prayer seeking declaration of title. He urges that both the parties have pleaded their respective titles and hence, the amendment will not take the defendants by surprise. He added that he is not going to let in any further evidence. https://www.mhc.tn.gov.in/judis 5/29 C.R.P.No.4174 of 2024
12. Ms.Harini rejecting this argument submitted as follows:
(i) The entire idea of the plaintiff is to file repeated applications and thereby delay the proceedings. This is clear from the fact the application for amendment was dismissed for default and was restored only on 22.07.2004.
(ii) Placing heavy reliance upon proviso to Order VI Rule 17, she argues that being an amendment application filed after the trial has commenced and since the plaintiff has not shown due diligence, he is not entitled to maintain the application.
(iii) If the amendment application is allowed, the District Munsif Court at Alandur will lose its jurisdiction, as the value of the suit would exceed Rs.1,00,000/- and therefore, the Trial Court rightly dismissed the amendment application.
(iv) The plaintiff has not come to Court with clean hands and therefore, he is not entitled to any relief.
(v) The suit having been pending from the year 2000, the parties will lose faith in the system, if the amendment is ordered.
13. Ms.Harini invites my attention to the amended written statement filed on 23.06.2006 to point out that she had filed an additional written https://www.mhc.tn.gov.in/judis 6/29 C.R.P.No.4174 of 2024 statement denying the title of the second defendant. This is on the basis of the fact that the first defendant had purchased the property from the father of the second defendant and since his father had already alienated the property during his lifetime, the son cannot claim any right over the same by virtue of succeeding to his estate.
14. I have carefully considered the submissions of both sides and have gone through the records.
15. I have to agree with Ms.Harini that the parties have prolonged the litigation by filing one application after another. However, the contesting defendant did not seem to have taken cudgels against the plaintiff for filing such applications. On the contrary, he cooperated with the Advocate Commissioner and also permitted reopening of the evidence and only thereafter, the evidence was closed. As I pointed out earlier, the Trial Court had originally reserved the judgment in the suit in the year 2011. It was only subsequently that the parties had taken out application for appointment of Commissioner, amendment and to let in few documents for the purpose of substantiating their respective cases.
https://www.mhc.tn.gov.in/judis 7/29 C.R.P.No.4174 of 2024
16. The amendment application cannot be dismissed on the ground that earlier the plaintiff had taken out several applications for other reliefs. If I were to hold so, then it would cause utmost prejudice to the parties in a suit. In a case, during the course of the proceeding, the parties to the suit will invoke the provisions of the Code and file several application for varied reliefs. If a Trial Court comes to a conclusion that a party is attempting to drag on the proceedings, by filing irrelevant or vexatious applications, then the Court is entitled to dismiss such applications and impose heavy costs. In this case, the Trial Court did not take that approach. Applications were filed, considered and also allowed. For the mere fact that the applications had been filed earlier does not mean the plaintiff is debarred from moving an amendment application.
17. I have carefully gone through the plaint and the written statements. Both the plaintiff and the first defendant have pleaded as to how they derive their respective title to the property. They have also filed their respective title deeds and have let in evidence supporting their pleas. On the basis of those documents, the plaintiff pleads the correct survey number for plot No.16 is 30/3. This is reflected in his title deed. On the contrary, the first defendant relying upon his title deed and pleads that plot No.16 falls in S.No.30/2. https://www.mhc.tn.gov.in/judis 8/29 C.R.P.No.4174 of 2024 Whether the property lies in S.No.30/2 or S.No.30/3 is a matter which has to be decided at the time of judgment.
18. I have referred to these pleadings only in order to show that both the plaintiff and the first defendant are claiming possession by virtue of their title. In a suit for injunction, a trial court is incidentally entitled to go into issue of title. In fact, if it comes to a conclusion that it cannot probe into the same in detail, as in case a suit for declaration of title, it should relegate the parties to file a fresh suit for declaration of title. In this case, as parties have already pleaded on their respective title and have let in evidence, to relegate that to file a fresh suit would only led to the multiplicity of the proceedings.
19. At this juncture, I only have to refer to paragraph 5 of the written statement. The first respondent/first defendant has specifically stated that the suit must be decided on the principle “possession follows title” as the suit property is a vacant land. Therefore, it is clear that both the parties have invited the Court to decide on title. In that situation, necessarily the plaint has to be amended into one of title.
Application of proviso to Order VI Rule 17:
https://www.mhc.tn.gov.in/judis 9/29 C.R.P.No.4174 of 2024
20. Insofar as the plea of Ms.Harini that Order VI Rule 17 proviso applies to this case is concerned, I am not in a position to accept the said plea. This is because the issue has been settled by a Full Bench of this Court in Hi Sheet Industries v. Litelon Limited, AIR 2007 MAD 78. The Full Bench held that the proviso to Order VI Rule 17, inserted by the Act 22 of 2022, is applicable only to suits filed after 01.07.2002. In case, a court is examining a suit, which has been filed prior to 2002, the said proviso would not be a bar. It would be governed by the unamended code. Therefore, the plea of Ms.Harini that Order VI Rule 17 proviso is a bar to the proceedings and that, the plaintiff has not shown any due diligence cannot be accepted as it is contrary to the law laid down by the Full Bench.
Previous default – no consideration:
21. Ms.Harini's submission, on the application having been dismissed for default, also does not help the first defendant. This is because though the application was filed within 10 years from the time the additional written statement dated 23.06.2006, unfortunately it had been kept pending by the Trial Court for the period of eight years. In any event, since the learned Trial Judge had allowed the application to set aside the order dismissing the petition https://www.mhc.tn.gov.in/judis 10/29 C.R.P.No.4174 of 2024 for default and has restored the application, the first defendant cannot rely upon the said dismissal in order to defeat the amendment application. This is because, the Trial Court has found “good cause”, as required under Order IX Rule 9 of the Code of Civil Procedure, and restored the amendment application. Once the Trial Court had taken such a view, it is not for the 1 st defendant to state as the petition had been dismissed for default, he is not entitled to urge on the merits of the application.
22.A default committed by a party need not have been condoned by the Court. Once the default is condoned and the order is set aside and the application is restored on to the file, it is not open to the defendant to plead that as the application had already been dismissed for default, it should not be allowed. The purpose of providing provisions like Order IX Rule 9, Order IX Rule 13, etc, is only to enable the Court to put a party back into the position where he would have been, if not, for the default. The Code of Civil Procedure is not a whip to punish the litigants. The Courts owe a duty to the litigants to address the issues that are presented to the Court for a solution. If I were to accept the arguments of Ms.Harini, the learned District Munsif would have to be treated as a School Teacher with a cane in her hands ready to punish a litigant for any error rather than an adjudicator of rights. To reiterate, previous https://www.mhc.tn.gov.in/judis 11/29 C.R.P.No.4174 of 2024 defaults do not stand in the way of a Court to consider the application on merits. See, G.P.Srivastava Vs. R.K.Raizada and others, (2000) 3 SCC 54 and A.Murugesan Vs. Jamunarani, (2019) 20 SCC 803.
Amendment, Declaration and cause of action:
23. I should recall the view of the Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594. The Hon'ble Mr.Justice R.V.Raveendran, held that a prayer for declaration would be necessary only when the denial by the defendant of the plaintiff's title, raises a cloud over his title, to the property. In order for a plea to be treated as a cloud over the title of the plaintiff, it should point out an apparent defect or a prima facie right of a third party over it. In other words, mere denial does not create a serious cloud over the title of the property. In this case, it is in the additional written statement dated 23.06.2006 that the first defendant had urged that the vendor of the plaintiff, namely, the second defendant has no title to the property. It is this plea, which taking it at its best, raises a cloud over the title of the plaintiff. This is because, the previous written statement filed in the year 2001 did not attack the title of the plaintiff, but it was a case of mere denial. https://www.mhc.tn.gov.in/judis 12/29 C.R.P.No.4174 of 2024
24. On the plea of limitation, I should point out that the Supreme Court, in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., AIR 1957 SC 357, had observed that the courts, as a rule, would decline the amendment, if a fresh suit on the amended claim would be barred by limitation on the date of the application. It added a rider to this proposition. It held that it is only a factor to be taken into consideration at the time of exercising the discretion to allow the amendment. It does not affect the power of the Court to order it, in case, it is required in the interest of justice. This judgment had been pronounced by a Bench consisting of four Judges.
25. While on this aspect, I have to refer to the latest judgment of the Supreme Court in N.Thajudeen Vs. Tamil Nadu Khadi & Village Industries Board, 2024 SCC Online SC 3037. Pankaj Mithal J, speaking for himself and Ujjal Bhuyan J, held that a suit for declaration of title for immovable property would not be barred so long as the right to such property continues and subsists. He further pointed out, when such a right continues to subsists, the relief of declaration being a continuing right, there can be no limitation for such a suit. Applying this judgment to the facts of the case, if the plaintiff is able to establish that his purchase from the second defendant is true and genuine, then he is entitled to hold that property as an absolute owner. That https://www.mhc.tn.gov.in/judis 13/29 C.R.P.No.4174 of 2024 being the situation, I have to reject the plea of Ms.Harini that the amendment application having been filed beyond the period of three years is barred.
26. In Sampath Kumar v. Ayyakannu, (2002) 7 SCC 559, while setting aside a judgment of this court dismissing a revision, the Supreme Court observed that amendments should be allowed to avoid multiplicity of suits. It further observed that, in case, the defendant had pleaded title by adverse possession, then the amendment should not be allowed, if that right had accrued to him by the time the amendment application had been filed. Such is not the situation here. The parties to the suit are pleading independent title and no issue of adverse possession arises.
27. The plaintiff has set up a title by virtue of purchase through the second defendant and the first defendant has pleaded title by virtue of the purchase made from a person, who had purchased the property from the second defendant's father. It seems to be a dispute on identity of the property rather than the source of title. The sale deeds that have been produced before me by the civil revision petitioner. It points out that the survey numbers of the properties conveyed under the sale deeds itself differ. By allowing the amendment application, the plaintiff is not going to put to prejudice, since the https://www.mhc.tn.gov.in/judis 14/29 C.R.P.No.4174 of 2024 pleadings on title have been made by the respective parties.
28. It is here, I have to deal with the aspect on when the right to sue arises in case of denial of title. Is a mere denial sufficient or something more is necessary? On this aspect, there are long line of judgments dealing with this issue. Article 58 of the Limitation Act deals with suits relating to declaratory reliefs. It is the next chapter in the Limitation Act which deals with suits relating to immovable properties. To clarify, Article 58 falls under Part-III and suits relating to immovable properties falls under Part-V.
29.It was explained by Justice G.S.Singhvi in Khatri Hotels Vs. Union of India, (2011) 9 SCC 126 that the Parliament had departed from the erstwhile Limitation Act of 1908 and had inserted a word “First” between “right to sue” & “accrues” in Article 58. This view was accepted by R.F.Nariman, J. in L.C.Hanumanthappa Vs. H.B.Shivakumar, (2016) 1 SCC 332. Whereas, under Article 113 of the Limitation Act, 1963, this word is absent. Article 113 of Limitation Act, 1963 corresponds to Article 120 of the old Limitation Act, 1908. A perusal of the judgments of the High Courts and the Supreme Court point out that for suits for declaration of title under the 1908 regime, the same were governed by Article 120. In all the three articles, https://www.mhc.tn.gov.in/judis 15/29 C.R.P.No.4174 of 2024 the word “right to sue accrues” are used. Therefore, I have to look at the situation when the 'right to sue' accrues.
30.Article 58 of the Limitation Act combines Article 93, 119 and 129 of erstwhile Limitation Act of 1908. By inserting the word “First” between the words 'right to sue' and 'accrued', the legislature made it clear if a suit is based on successive causes of action, the period of limitation will run from the date, when the 'right to sue' 'first' accrued. Hence, the requirement to deal with the issue whether a mere denial would give the 'right to sue' or if something more is required.
31.In Bolo Vs. Koklan, (1930) 32 L.W. 338, the Privy Council had explained this term “right to sue accrues”. The Privy Council held that “right to sue does not accrue until there is a certain right in the suit and its infringement or atleast “a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted”. This shows a mere denial does not give raise to one but there has to be a “clear and unequivocal” threat.
32.Another interesting case I have refer to is Kandasami Pillai and others Vs. Munisami Mudaliar, 1932 (35) L.W. 350 : AIR 1932 Mad 589. A https://www.mhc.tn.gov.in/judis 16/29 C.R.P.No.4174 of 2024 Division Bench of Wallace and Cornish.JJ dealt with this issue. In that case a suit was filed for a declaration, that a mortgage with respect to certain trust properties, were in unenforceble, against the trust. It was factually found that the plaintiffs were aware of the creation of the mortgage, but they did not approach the Court immediately seeking declaration. The Division Bench held that there was no threat on account of the creation of the mortgage. Hence, the 'right to sue' for the plaintiffs to present a suit claiming declaration did not arise. The right to sue arose only when a suit was filed to enforce a right under the mortgage was presented. To put it clearly, the threat to the plaintiffs' right arose only when the suit to enforce the right under the mortgage was presented. The cause of action arose from that time and not from the date of the mortgage deed itself.
33.Yet again, the issue was presented for consideration in Pothukutchi Appa Rao and Others v. The Secretary of State, (1938) 47 LW 438 (DB). The Hon'ble Mr.Justice Venkatasubba Rao speaking for the bench, held as follows:
"There is nothing in law which says that the moment a plaintiff's right is denied, he is bound at his peril to bring a suit for declaration. It would be most unreasonable to hold that a bare repudiation of a https://www.mhc.tn.gov.in/judis 17/29 C.R.P.No.4174 of 2024 person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit. A party surely has a right to elect, as to when he may bring a suit, for vindicating his right, when there are several or successive denials. If a person's right is called in question, he may ignore that particular attack or challenge; but that does not mean that a fresh attack does not give rise to a fresh cause of action. There may be an ineffectual threat, a brutum fulmen [See the judgment of Coutts Trotter, C.J., in Koyasan Koya Haji v. Secretary of State for India 20 L.W. 288] which a person may ignore, without his right to bring a suit in respect of a subsequent invasion, being impaired.” Hence, a mere denial, if it is ineffectual, can be ignored. It is only when a clear threat is presented, the plaintiff should seek for declaration. This view taken by Hon'ble Mr.Justice Venkatasubba Rao, found acceptance by the Supreme Court in C.Mohammed Yunus Vs. Syed Unissa, AIR 1961 SC 808.
A judgment rendered by three Judges of the Supreme Court.
34.The effect of the aforesaid discussion is that for a mere denial, a party need not resort to the highly expensive relief and sue for declaration. There must be in addition to the denial, a threat that effectively invades or https://www.mhc.tn.gov.in/judis 18/29 C.R.P.No.4174 of 2024 jeopardizes the right of the plaintiff. This was the view of the Supreme Court in Rukhmabai Vs. Lala Laxmi Narayan, AIR 1960 SC 335. Further, this view is in line with the dictum of R.V.Raveendran.J in Anathula Sudhakar's case, referred to supra. His Lordship has specifically held that a mere denial would not give rise to a “right to sue” for a suit for declaration. In fact, he pointed out in paragraph No.14, it is always open to the plaintiff to withdraw a suit for bare injunction, with the permission of the Court, or to file a comprehensive suit for declaration and injunction if a “cloud over title” is created. He further pointed out in paragraph No.16, that in case of vacant land, as in the case, I am currently dealing with, possession follows title.
35.Yet again, I will refer to the dictum in N.Thajudeen's case. After referring to C.Mohammed Yunus Vs. Syed Unissa, AIR 1961 SC 808 Justice Pankaj Mithal held as follows:
“23. …. a suit for declaration of title to immovable property would not be barred so long as the right to property continues and subsists, when such right continues to be subsist, the relief for declaration would be a continuing right and there would be no limitation for such a suit. The principle that the suit for declaration for a right cannot be held to be barred so long as the right to property subsists.” https://www.mhc.tn.gov.in/judis 19/29 C.R.P.No.4174 of 2024
36.The very fact that Article 58 of the Limitation Act stands amended by insertion of the word 'first', has not done away with the requirement for the Court to see when the “right to sue” accrues. The consistent view right from Bolo's case is that in addition to a mere denial, there should be some overt act on the part of the defendant, which infringes upon the right of the plaintiff over the suit property. The insertion of the word “first” under Article 58 was to clarify the position that if a clear and present danger is presented to the title of the plaintiff and the plaintiff does not take any steps to sue for declaration of his title, the fact that the defendant yet again infringes on the right of the plaintiff, will not give a fresh cause of action to sue for declaration. This is because, “the right to sue” had already arisen at the time of the first infringement. The amendment brought in by way of Article 58 of the Limitation Act, does not in any way remove the requirement of a distinct act by the defendant infringing upon the right of the plaintiff.
37.Applying these judgments, I feel that the amendment is not barred. However, this is only a prima facie conclusion for the purpose of allowing the amendment application and nothing else. Whether the suit is barred by time or not is for the learned Trial Judge to adjudicate after analyzing the evidence https://www.mhc.tn.gov.in/judis 20/29 C.R.P.No.4174 of 2024 and after hearing both parties.
Amendments and “Clean Hands” principle:
38.With respect to the plea that the plaintiff does not come to the court with clean hands, I have to reject this argument without much of an effort. This is because the plea of amendment is not one in equity. It is one based on the power of the Court under Order VI Rule 17. Equity cannot be applied, when the field is occupied by a legislation. The plea would certainly be acceptable in case equatable relief is sought for. That not being the situation here, I am not inclined to discuss that issue any further.
Loss of Jurisdiction and Amendment:
39.The aspect that if the amendment is allowed, it will take away the jurisdiction of the Court and hence, the amendment application deserves dismissal requires some consideration.
40.The view urged by the Ms.Harini is seemingly reflected by Venkatasubba Rao.J. in Singara Mudaliar Vs. Govindaswamy Chettiar, https://www.mhc.tn.gov.in/judis 21/29 C.R.P.No.4174 of 2024 1928 27 LW 609. The learned Judge referred to the judgement in Annie Besant Vs. Narayaniah, Vol.I L.W. 520 and observed that no Court will permit a plaint to be amended so as to oust its jurisdiction to try the suit. Subsequently, the issue was presented before Mack.J, in Nandula Bhavani Sankaram Vs. Saladi Mangamma, 1948 61 LW 677. The learned Judge held that the proper course which a Court should adopt in such cases is to allow the amendment and return the plaint for presentation before the proper Court. The Judgment in Singara Mudaliar's case was not brought to the notice of Justice Mack.
41.Once again, the issue arose before the Hon'ble Mr.Justice Veeraswami.J (as His Lordship then was) in M.Allauddin Vs. P.S.Lakshminarayanan, (1969) 82 L.W. 540. That too was a suit for injunction filed before a Munsif Court. An amendment was sought for to include a prayer for recovery of possession. The learned District Munsif took a view that if the amendment application is allowed, the Munsif Court will lose jurisdiction and it would be the Subordinate Court alone which would have the necessary jurisdiction. Hence, the application was dismissed. This order was put in revision before this Court.
https://www.mhc.tn.gov.in/judis 22/29 C.R.P.No.4174 of 2024
42.It was urged before Veeraswami.J that allowing the amendment will result in deprivation of the jurisdiction of the Court allowing it and therefore, it should not be allowed. Reliance was placed on Singara Mudaliar's case. Veeraswami.J pointed out that the case before Venkatasubba Rao.J arose after the suit had been transferred to the High Court, from the City Civil Court, in exercise of Clause 13 of the Letters Patent. On such transfer, the High Court became the transferee Court. The Transferee Court, by allowing the amendment application could have neither transferred the case back to the original Court nor could have it proceeded it with the suit, because its jurisdiction is controlled by the width of the jurisdiction from which the suit is transferred. He also distinguished the view in Naguhta Mohamed Nainar Vs. Vedavalli Ammal, 1959 1 MLJ 307. He explained that in so far that case is concerned, amendment was sought for pending an appeal. If the amendment had been allowed, then it would result in the suit going outside the jurisdiction of the Trial Court and thereby affecting the appeal.
43.Having noticed the differences in two cases, the learned Judge held that the proper course to be adopted in cases, where, if the application for amendment is allowed, results in ouster of the jurisdiction of the original Court, the Court should allow the amendment, granting an opportunity to the https://www.mhc.tn.gov.in/judis 23/29 C.R.P.No.4174 of 2024 plaintiff to pay the deficit Court fee and if the plaint after amendment is in excess of jurisdiction of the Court, then it should be returned to the plaintiff for presentation before the proper Court. I should point out here that the view taken by Mack.J had not been brought to the notice of Veeraswami.J. Yet, he arrived at the same conclusion.
44.The view taken by Veeraswami.J is the same as taken by Hon'ble Mr.Justice T.S.Krishnamoorthy Iyer in T.K.Sreedharan Vs. P.S.Job , AIR 1969 Kerala 75. The learned judge very pithily held when a Court has jurisdiction to entertain the suit, it is only that Court which is competent to deal with the application for amending the plaint in that suit. If, as a result of the order allowing the amendment application, the Court loses pecuniary jurisdiction, then the Court must return the plaint for presentation before the proper Court. This is because an amendment relates back to the date of presentation of the plaint and the amended plaint will have to be considered to have been wrongly presented in a Court, not having jurisdiction to entertain it. Therefore, the power under Order VII Rule 10 has to be exercised.
45.The Bombay High Court also has taken a view similar as that taken by Mr.Justice Mack, Mr.Justice T.S.Krishnamoorthy Iyer and Mr.Justice https://www.mhc.tn.gov.in/judis 24/29 C.R.P.No.4174 of 2024 Veeraswami in R.Jaikrishna and Co. Vs. A.1 Co-operating Housing Society Ltd., AIR 1971 Bombay 382.
46.Adopting the consistent view of the Judges taken above, I am of the view that the proper procedure to be followed is that the learned Judge should deal with the amendment application as he is the only person who can deal with the said application. If he comes to a conclusion that the amendment deserves to be allowed and on account of allowing the amendment application, he loses jurisdiction, then he should return the plaint for presentation before the proper forum. For the very fact that the Court will lose jurisdiction, in case, the amendment is allowed, the amendment application cannot be dismissed.
47. In fact, the Kerala High Court in Suri Films v. S.N. Govinda Prabhu and Brother, AIR 1989 KER 28 has held that such a plea of ouster of jurisdiction, if an amendment application is allowed, is an extraneous consideration which is not in consonance with the letter and spirit of the Order VI Rule 17.
Balancing of interest:
https://www.mhc.tn.gov.in/judis 25/29 C.R.P.No.4174 of 2024
48. In the light of the above discussion, as the plaintiff only seeks to add the prayer without any further amendment in the body of the plaint, there is no change in cause of action or frame of the suit. Hence, I am inclined to grant the said relief. However, taking into consideration the pendency of the proceedings and the last plea of Ms.Harini that a litigant would lose hope, I cannot be insensitive to the delay caused by the plaintiff in moving the amendment application. This can be obviated by imposing heavy cost on the plaintiff.
49.Accordingly, this civil revision petition is allowed. The order passed by the learned Principal District Munsif at Alandur in I.A.No.132 of 2016 in O.S.No.311 of 2000 dated 22.07.2024 is set aside on condition that the plaintiff pays the defendant a cost of Rs.1,00,000/- within a period of four weeks from today. On payment of costs, the plaintiff will be permitted to amend the plaint. If the court comes to a conclusion that it does not have jurisdiction on account of enhancement of suit valuation post the amendment, it shall forthwith return the plaint to be presented before the learned Subordinate Judge at Alandur. The plaintiff will be entitled to represent the plaint, along with the requisite Court fees, before the learned Subordinate https://www.mhc.tn.gov.in/judis 26/29 C.R.P.No.4174 of 2024 Judge, Alandur, within a period of one week from the date of such return. In case, the cost is not paid, the revision will stand dismissed without further notice to this Court.
50.The plaintiff will not be entitled to let in any further evidence in the suit on the basis of this amendment as undertaken by Mr.R.Manickavel. On receipt of the plaint by the learned Subordinate Judge, the same shall be numbered immediately and taken up for arguments without delay.
51.In any event, the suit should be disposed of on or before 31.03.2025 and a report should be submitted to this Court about compliance of the same.
52.In the result, this Civil Revision Petition is allowed with costs as aforesaid. Consequently, the connected Miscellaneous Petition is closed.
30.10.2024
nl / krk
Index : Yes / No
Speaking order : Yes / No
NCC : Yes / No
https://www.mhc.tn.gov.in/judis
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C.R.P.No.4174 of 2024
To
The Principal District Munsif, Alandur
V.LAKSHMINARAYANAN, J.
nl / krk
C.R.P.No.4174 of 2024
https://www.mhc.tn.gov.in/judis
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C.R.P.No.4174 of 2024
30.10.2024
https://www.mhc.tn.gov.in/judis
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