JUDGMENT
V. Ramkumar, J.
1. The question for consideration in this Writ Petition filed under Article 227 of the Constitution of India is as to whether an order allowing or refusing to allow amendment of pleadings, if not appealable or revisable, is amenable to correction under Articles 226 and 227 of the Constitution of India.
2. It is now well-settled that an order granting or refusing to grant amendment of pleadings is not revisable under Section 115 of the Code of Civil Procedure, particularly after its amendment in the year 2002. Instances are numerous of such orders being challenged before this Court by means of Writ Petitions filed under Article 226 and/or Article 227 of the Constitution of India. It has, indeed, been judicially noticed by the Supreme Court of India that after the amendment of Section 115 of the Code of Civil Procedure, all the High Courts in India are flooded with petitions under Article 227 of the Constitution of India challenging all sorts of interlocutory orders. Vide Rajeshwari v. Puran Indoria . By the various judicial pronouncements it is now, by and large, settled that there are certain species of amendments which ought to be allowed and certain others which ought not to be allowed. Most of the requests for amendment of the pleadings are sought before the trial courts either before the commencement of trial or during or after the trial. Refusal to allow a party to amend his pleadings, in a case where such amendment ought to be granted, may result in injustice. Similarly, allowing a party to amend his pleadings, in a case where it ought not to be allowed, may also work injustice. In cases where such injustice is done at the trial stage, it may be a poor solace to the aggrieved party to be told that the order constituting the injustice done to him is not revisable under Section 115 C.P.C. and cannot also be corrected in a petition under Article 227 of the Constitution of India as well and that his remedy is to challenge the order in an appeal to be preferred against an adverse decree which might be passed by the trial court against him in due course. Even in such cases if the appellate court were to hold, after a long lapse of time, that the amendment of the pleadings sought by the party should have been granted, the only alternative available to such appellate court is to remand the case to the trial court for a fresh disposal which may or may not involve a de novo trial.
3. The sweep and amplitude of the supervisory and visitorial jurisdiction of the High Court under Article 227 of the Constitution of India were examined at length by the Supreme Court in Surya Dev Rai v. Ram Chander Rai . Some of the pithy observations by the apex court in the above decision can be summarised as follows:
(a) The curtailment of revisional jurisdiction of the High Court under Section 115 C.P.C. by the amendment of the year 2002 does not take away the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor is the power of superintendence conferred on the High Court under Article 22 7 of the Constitution taken away or whittled down. The power exits, untrammelled by the amendment of Section 115 of the C.P.C. and is available to be exercised subject to rules of self discipline and practice which are well-settled. (Vide Para 33).
(b) The jurisdiction conferred on the High Court under Articles 226 and 227 of the High Court is part of the basic structure of the Constitution, forming its integral and essential feature, which cannot be tampered with much less taken away even by constitutional amendment, not to speak of a parliamentary legislation. The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken away either by judicial pronouncement or by legislative enactments or even by an amendment of the Constitution. (Vide Para 28).
(c) The parameters for exercise of jurisdiction under Article 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. (Vide Para 38).
(d) The power to issue a writ of certiorari against orders of subordinate Courts and the supervisory jurisdiction over subordinate courts do exist. But the exercise of such power is discretionary and will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judges. (Vide Paras 36 and 38).
(e) The error of jurisdiction though committed by the inferior court may be capable of being taken care of and corrected at a later stage and the wrong done could be remedied by adjusting the rights and equities in appeal or revision preferred at the conclusion of the proceedings. But there may becases where “a stitch in time would save nine”. (Vide Para 38).
(f) Interlocutory orders passed by the courts subordinate to the High Court against which remedy of revision has been excluded by the C.P.C. Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (Vide Para 37 (2)).
(g) The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. (Vide para 25).
(h) In spite of the revisional jurisdiction not being available to the High Court it still has powers under Article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents the consideration of which could have led to an opposite conclusion. This power of the High Court under the Constitution of India is always in addition to the revisional jurisdiction conferred on it. (Vide para 27).
(i) Even though the certiorari jurisdiction of the High Court under Article 226 and the supervisory jurisdiction of the High Court under Article 227 of the Constitution are distinct, the distinction between the two jurisdiction stands almost obliterated in practice. However, the Writ of certiorari is anexercise of the original jurisdiction of the High Court whereas the exercise of the supervisory jurisdiction is akin to appellate, revisional or corrective jurisdiction. In a writ of certiorari in which the record of the proceedings have been certified and sent up by the inferior court or tribunal, the High Court may simply annul or quash the proceedings and then do no more. But in exercise of the supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings it may also make such directions as the facts and circumstances of the case may warrant and may even substitute the decision of the inferior court or tribunal with one of its own. Unlike the jurisdiction under Article 226 of the Constitution, the supervisory jurisdiction is capable of being exercised suo motu well. (Vide para 24).
4. Surya Dev Rai was followed by a two Judges Bench of the Apex Court in Shail v. Manoj Kumar and Ors. . In Yeshwant Sakhalkar v. Hirabat Kamat Mhamai , a two Judges Bench of the Apex Court following Surya Dev Rai held that where the interlocutory order of injunction was neither appealable nor revisable, the High Court could examine the correctness of the order under Article 227 of the Constitution of India. Even before Surya Dev Rai’s case the apex court had held that where a revision under Section 115 C.P.C. is barred, the High Court could exercise its supervisory jurisdiction under Article 227 of the Constitution of India. Vide Nataraja Chettiar v. Sulekha Amma 1987 (1) KLT 829 (SC). This Court in Ramasubba Iyer v. Daveed Christudas 1963 KLT 886, following Satyanarayan Laxminarayan Hegde and Ors. v. Mallikarjun Bhavanappa Tirumale , had held that the jurisdiction under Article 227 of the Constitution of India is wider than the jurisdiction under Section 115 C.P.C. There had also been instances wherein the apex court had given a nod of approval to the treatment given by the High Court to a petition under Section 115 C.P.C. as one under Article 227 of the Constitution of India. (See Col. Anil Kak (Retd.) v. Municipal Corporation, Indore and Ors. JT (2005) 8 SC 412.)
5. What now remains to be considered is a Bench Decision of this Court reported in Kalpakamani and Ors. v. Shajathan ILR 2005 (3) Kerala 860, and two other decisions of learned Single Judges of this Court reported in Karthiyani v. Ratnanathan , and Moopan Complex Merchants Association v. Raveendran .
6. In Kalpakamani’s case, by the proposed amendment to the plaint a suit for partition claiming 1/3 share over the plaint schedule properties was sought to be converted into a suit for recovery of possession on the strength of the plaintiffs title and that too at a stage after the examination of the two witnesses for the plaintiff. The trial court dismissed the request for amendment of the plaint. A Division Bench of this Court refused to interfere with the said order. The Division Bench held that since the rejection of the petition for amendment of the plaint would not finally dispose of the matter, the order of the lower court was not revisable under Section 115 C.P.C. and, therefore, the Civil Revision Petition was not maintainable. The Division Bench then proceeded to observe that it was also not permissible for the High Court under Article 227 of the Constitution of India to interfere in such a matter unless the Court or Tribunal had acted beyond its jurisdiction. There is nothing in the text of the decision of the Division Bench holding that the petition under Article 227 of the Constitution of India in such a matter would not be maintainable. However, the gist of the head note of the said decision reported in Kalpakamani and Ors. v. Shajathan and Anr. ILR 2005 (3) Kerala 860, reads as follows:
Civil Procedure Code, 1908–Section 115 Amendment of plaint-Rejection Civil Revision Petition filed Under Section 115 of C.P.C.. is not maintainable against the order of rejection- Writ Petition filed under Article 227 of the Constitution of India is also not maintainable.
(Emphasis supplied)
The underlined portion of the gist is really not there in the text of the decision. It was really a contribution by the reporter.
7. The other decision, namely, Karthiayani v. Ramanathan , rendered by a learned Single Judge of this Court also was one disposing of Civil Revision Petitions filed against order rejecting a prayer for amendment of the plaint under Order 6 Rule 17 C.P.C. That was a case wherein an amendment of the plaint seeking to introduce a totally inconsistent plea altering the basic nature of the suit itself was proposed at a time when the suit stood listed for trial. The petition for amendment was rejected by the trial court whose order was challenged in Revision filed before this Court. The learned Single Judge held that since the order on the application for amendment of the plaint would not finally dispose of the suit, the order was not revisable under Section 115 C.P.C. It was then considered whether the order was liable to be corrected under Article 227 of the Constitution of India. The learned Judge held that such an order would not come within the ambit of Surya Dev Rai’s case. Thus, that was also a case where, on the particular facts situation, this Court refused to interfere. But there is nothing in that decision to indicate that an order granting or refusing amendment of the pleadings is not open to challenge in a petition under Article 227 of the Constitution of India under any circumstance.
8. In Moopan Complex case, , an amendment of the plaint was sought at the fag end of the trial so as to enable the plaintiff to retrospectively acquire the status of a registered society for which the registration was actually obtained only long after the institution of the suit. The Writ Petition filed by the plaintiff challenging the order of the trial court rejecting the petition for amendment, was dismissed by a learned Single Judge holding that the amendment, if allowed, would relate back to the date of suit, leading to an absurdity.
9. A decision rendered by me in a totally different context and which did not really merit reporting, was cited at the Bar to canvass for the position that it runs counter to the decisions referred to above. The said decision is Amina v. Kunjubava . That was a case in which a Writ Petition filed by the plaintiffs challenging an order refusing an amendment of the plaint was finally disposed of granting permission to the plaintiffs to withdraw the suit with liberty to institute a fresh suit on the same cause of action. In paragraph 3 of the judgment there is wrong statement made by me to the effect that the decision of the learned Single Judge in Karthiayani’s case cannot survive the subsequent ruling of the Supreme Court in Surya Dev Rai’s case. The decision of the learned Single Judge in Karthiayani’s case was long after Surya Dev Rai’s case and it had referred to Surya Dev Rai’s case while disposing of the Civil Revision Petition. I was therefore factually wrong in making the above observation. But there is nothing in any of the rulings referred to above to suggest that the last observation in paragraph 3 of Amina ‘s case to the effect that in a fit case the jurisdiction of this Court under Article 227 of the Constitution of India can be exercised to interfere with an order erroneously allowing or refusing to allow the amendment of pleadings. As indicated above, there was nothing in Amina’s case worth reporting and the decision therein was not also marked for reporting. It is not known as to why it was considered reportable by the reporter without referring to or obtaining the permission of the author of the judgment. It is hoped that such instances will not recur in future.
AMENDMENT OF PLEADINGS – The law and Case law
10. The statutory provision enabling amendment of pleadings is to be obtained in Order VI Rule 17 C.P.C. The said provision after its amendment in the year 2002 reads as follows:-
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.
11. The test for allowing an amendment of the pleadings is to find out whether the proposed amendment works any serious injustice to the other side. It is well-settled that the court should be extremely liberal in granting a prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. (Vide Haridas Aildas Thadani and Ors. v. Godrej Rustom Kermani . The object of Order VI Rule 17 C.P.C. is to avoid multiplicity of suits and the court has to keep this principle in mind while considering an application for amendment of the pleadings. (See L.J. Leach and Co. Ltd. and Anr. v. Kardine Skinner and Co. , Nichhalbhai Vallabhai and Ors. v. Jaswantlal Zinabhai and Ors. , Kalawati Devi Harlalka v. The Commissioner of Income Tax, West Bengal and Ors. AIR 1968 SC 165, Sampath and Kumar v. Ayyakannu and Anr. , and Dondapati Narayana Reddy v. Duggireddy Venkatanaraya Reddy .)
12. Amendment cannot be claimed as a matter of right and under all circumstances. At the same time 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. B.K.N. Pillai. v. P. Pillai .
13. Court cannot grant an amendment of the pleadings when it amounts to fundamental alterations of pleadings as a result of which the litigation will assume such a complexion as a whole as to take it beyond the parameters of the original cause of action Phool Rani v. Noubat . An amendment introducing an entirely different case will prejudice the other side. Modi Spinning and Weaving Mills v. Ladha Ram .
14. The application for amendment should be allowed if there is no material inconsistency between the original averments and those proposed by the amendment. Applications moved at proper stage and not unduly delayed should not normally be rejected. See Jayanti Rai v. Dass Estate .
15. The court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. But that is a factor to be taken into account in exercise of the discretion as to whether the amendment should be ordered or not and it does not affect the power of the court to order it. Vide T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors. . In a. case where the relief sought through amendment of plaint would be barred by limitation, the plea of limitation could be made the subject-matter of the issue after allowing the amendment prayed for. Regu Thilak D John v. Section Rayappan and Ors. (2001) 2 SCC 472. It is open to the court ordering amendment to specify that the amendment will not relate back to the date of plaint so as to affect the defence of limitation available to the defendant. Vide Subramani v. Aboobacker Koya .
16. The delay in filing the application for amendment by itself is not a ground for rejection of the application unless serious prejudice would be caused to the other side and accrued rights are taken away as a result of allowing the amendment. See Estralla Rubber v. Dass Estate Pvt. Ltd. .
17. There can be no strait jacket formula for allowing or disallowing amendment of the pleadings. Each case depends on the factual background of that case. An application for the amendment of the pleadings should not be disallowed merely because it is opposed on the ground that the same is barred by limitation. On the contrary, the application will have to be considered bearing in mind the discretion which is vested with the Court in allowing or disallowing such amendment in the interests of justice. See Pankaja v. Yellappan .
THE FACT SPECIFIC
18. The facts of the present case can now be examined to find out whether the amendment sought for in the present case should have been granted or not. The petitioners are the defendants in O.S.760/01 on the file of the Munsiff’s Court, Thiruvalla. The said suit filed by the respondent herein is one for a prohibitory injunction restraining the defendants from annexing any portion of plaint schedule item No. 2 to the property of the defendants and restraining them from obstructing the plaintiff’s user of plaint schedule No. 2 as a way. The way was claimed as passing through Government puramboke land over which the plaintiff laid the claim as of right.
19. The petitioners have resisted the suit contending inter alia as follows:
The strip of land is not a puramboke land but is a portion of their property. O.S. 678/1993 was a suit filed by the petitioners/defendants against the mother and maternal uncle of the respondent/plaintiff claiming title over the very same strip of land. A decree was passed in that suit in favour of the petitioners herein. An appeal filed by the defendants therein as A.S. 34/1998 before the Sub Court, Thiruvalla was dismissed as per Ext.P-5 Judgment. Rule S.A. 186/04 preferred by them before this Court is pending. In January 2004, the son of the 2nd defendant in O.S. 678/93 filed a representation before the Revenue Divisional Officer claiming that the disputed land is a puramboke and alleging obstruction to the said public way. He then filed W.P.(C). 6664/04 before this Court seeking a direction to dispose of his representation filed before the R.D.O. On 30-7-2004 this Court dismissed the said Writ Petition holding that a civil dispute with regard to the very same property was pending. A Writ Appeal filed as W.A. 419/05 against the said Judgment was also dismissed as per Ext.P-6 Judgment.
20. The present suit was filed by the daughter of the first defendant in O.S. 678/1993 during the pendency of A.S 34/1998. The suit was posted for trial on 17-5-2005. On that day, the respondent/plaintiff filed I. A. 1124/05 seeking amendment of the plaint to set up a right of prescriptive easement over the very same strip of land. The reason stated for seeking the amendment was that the defendants produced certain documents on 16-5-2005 showing that the plaint schedule item No. 2 belongs to them and therefore, the plaint is to be amended. As per Ext. P-4 the petitioners herein filed their objections to I. A. 1124/05. But the Court below as per Ext. P-7 order dated 18-7-2005 allowed I.A.I 124/05 holding inter alia that the amendment sought for is necessary for a just decision of the case on merit and also to avoid multiplicity of proceedings and that it will not change the nature of the suit or cause any prejudice to the defendants. It is the said order which is assailed in this Writ Petition.
21. After hearing both sides, I am of the view that Ext.P-7 order allowing the amendment of the plaint cannot be sustained in law. The persistent case of the plaintiffs’ mother and maternal uncle in O.S.678/1993 was that the disputed strip of land is a Government puramboke over which they, as members of the public, have a right of way. The very same stand is taken in the present suit also wherein the right, title and interest claimed by the petitioners/defendants over the said land is specifically denied by the plaintiff to contend that the strip of land is a Government puramboke and the petitioner/defendants have no right to obstruct the plaintiff from using the said land as a way. As per LA. 1124/05 a diametrically opposite plea is sought to be introduced whereby, contrary to the denial of title of the petitioners/defendants over the disputed strip of land, it is admitted that the land in question belongs to the petitioners/defendants and a prescriptive easement over the same is sought to be set up. A plea of easement involves an admission of title of the opposite party over the property (servient heritage) through which the right over the strip of land is claimed. While it is true that a hyper-technical approach should not be taken by the Court but a liberal view avoiding multiplicity of suits has to be taken while considering an application for amendment of pleadings, it is not open to the Court to grant a prayer for amendment of the pleadings in such a way as to introduce a totally inconsistent and diametrically opposite plea. Both the original plea as well as the subsequent plea sought to be introduced cannot co-exist.
22. The reason stated by the respondent/plaintiff for filing the petition for amendment is also ex facie untenable. The plaintiff would have it that the defendants produced certain documents on 16-5-2005 showing that plaint schedule item 2 belongs to the defendants. This is the reason put forward for filing the petition for amendment. In fact, the plaintiff’s mother was the defendant in O.S. 678/93 wherein also the contention was that the very same strip of land is a Government puramboke land. The said contention was negatived by two Courts holding that the disputed land belongs to the petitioners herein. The plaintiff was, therefore, feigning ignorance of the above finding to contend that she got knowledge about the tide of the defendants over the strip of land only when they produced documents before the Court on 16-5-2005. It was apparently a false explanation offered. The decisions reported in Granendra Nath v. Pores Nath AIR 1922 Calcutta 255, Ramaswamy Chetti v. Anaiya Padayachi and Ors. AIR 1936 Madras 545, and Kirshnaswami Iyer v. Ouseph Mathai 1960 KLT 990 : show that the element of bona fides should also go into the zone of consideration while disposing of an application for amendment of pleadings.
23. The amendment of the pleadings should be for the purpose of determining the real questions in controversy between the parties. It should not take the suit beyond the parameters of the original cause of action. [Vide Phool Rani’s case (supra). The expression “cause of action” has a definite meaning and connotation in legal parlance. See Chekkutty v. State of Kerala 1963 KLT 70]. It does not mean a new case (See A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation ). If the petitioners were to be told that their remedy is to challenge the impugned order granting the amendment of the plaint in an appeal to be preferred against the decree which might be passed against the petitioners herein then they will have to assail a decree granting the plaintiff a prescriptive right of easement over the disputed strip of land admitting the title of the petitioners herein and they will have no occasion or opportunity to challenge the decree on the original cause of action.
After an anxious consideration of the matter, I am of the view that the court below was allowing the plaintiff to introduce a totally new case inconsistent with and diametrically opposite to the one already pleaded in the plaint. The said amendment, if allowed, will definitely prejudice the petitioners/defendants and ought not to have been allowed by the court below. Ext.P-7 order is, therefore, unsustainable and is accordingly set aside. I.A. No. 1124/05 filed before the Court below will stand dismissed. This Writ Petition is allowed as above. There shall be no order as to costs.