BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 06/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN C.R.P.(PD)(MD)No.799 of 2007 M.P.(MD)No.1 of 2007 Chidambaram ... Petitioner Vs Chandra ... Respondent Prayer Civil Revision Petition filed under Article 227 of the Constitution of India, to allow the Civil Revision Petition and set aside the order and decreetal order of the learned Additional Subordinate Judge, Tenkasi passed in I.A.No.95 of 2006 in O.S.No.45 of 2002 dated 21.12.2006. !For Petitioner : Mr.T.S.R.Venkatramana ^For Respondent : Mr.K.Srinivasan :ORDER
This Civil Revision Petition is filed by the first defendant against
the order passed by the learned Additional Subordinate Judge, Tenkasi in
I.A.No.95 of 2006 in O.S.No.45 of 2002 dated 21.12.2006.
2. The background facts need to be noted in brief are as follows:
The respondent has filed the suit for specific performance of contract in
O.S.No.45 of 2002 on the file of the Sub Court, Tenkasi against the
petitioner/1st defendant and his brothers who are defendants 2 to 4 in the suit
on an agreement of sale dated 29.01.2001 and for arrears of rent. The
defendants inter alia contended that the said agreement of sale is only a
security arrangement for the loan obtained by them from the respondent/plaintiff
and denied the execution of rental agreement as well. After settlement of
issues, the trial had commenced and the respondent’s husband by name
Shanmughavel has filed the proof affidavit and the case has been posted for
cross examination of the plaintiff’s witness. At that stage the petitioner/1st
defendant has filed an application in I.A.No.95 of 2006 to amend the written
statement filed by them and to include the earlier transaction between the
defendant and the plaintiff’s husband. The sum and substance of the amendment
sought for is given below.
3. That the respondent’s husband Shanmughavel had given a loan of
Rs.1,00,000/- (Rupees One Lakh Only) to the defendants and obtained a similar
document styled as agreement of sale and as the defendants were unable to pay
the interest, he cancelled the said document and obtained a fresh sale agreement
and rental agreement in the name of his wife based on which the present suit is
filed.
4. The trial Court dismissed the said petition on the ground that
the same is filed belatedly and further no reason assigned in the application
for amendment to the effect that in spite of due diligence the said matter could
not be raised by the petitioner. Incidentally, the trial Court has referred to
the ex-parte decree passed against the defendants on two occasions and held that
this application is filed only to delay the proceedings. Aggrieved against the
same, the present Civil Revision Petition has been filed by the petitioner/1st
defendant.
5. Mr.T.S.R.Venkatramana, learned counsel for the petitioner
submitted that the defence even in the original written statement was that the
agreement of sale was executed only as a security arrangement and it is not a
transaction of agreement of sale. He would contend that in order to substantiate
the said plea additional facts were sought to be incorporated by way of
amendment to show the modus operandi of the respondent/plaintiff and her husband
who has got the agreement of sale in the name of plaintiff’s husband and after
cancelling it, obtained a fresh sale agreement in the name of the plaintiff. He
would further contend that by allowing the amendment, the nature and character
of the defence does not change and rejection of the said amendment would only
amount to denial of opportunity and violative of principle of natural justice.
6. The learned counsel for the petitioner referred to the principle
enunciated by the Full Bench of this Court governing amendment of pleading
reported in Hi Sheet Industries, a partnership firm, carrying on business at
61-D, D.V.Road, Ambur Town, Vellore District Vs. Litelon Ltd., having its office
at No.68, Sipcot Industrial Complex, Hosur, rep. by its Managing Partner,
S.Gokul and others (2006 (5) CTC 609). The Full Bench of this Court after
referring to various decision in this regard has held thus:
“Oldest Golden Case Law and Modern Case Law on interpretation of law
relating to amendment states that amendments of pleadings can be allowed at any
stage of proceedings provided it is even such amendment is barred by time only
factors to be taken consideration are: a) As to whether amendment should be
allowed or not; b)when it does not affect cause of action; c) it does not
introduced new cause of action; d) it would not cause serious prejudice to
opposite party; and e) when such amendment is required prejudice to opposite –
plea that amendment is barred by limitation is also not ground for rejecting
amendment.”
7. In the same decision the Full Bench has emphazised that while
considering the proviso to Order 6 Rule 17 CPC, the Court should not forget its
unfettered discretion to allow the amendment after applying the judicial
discretion provided that if there is no negligence on the part of the party
seeking amendment (emphasis supplied).
8. The learned counsel for the petitioner also drew the attention of
this Court to the decision reported in Usha Balashaheb Swami & others Vs. Kiran
Appaso Swami & others (2007 (5) SCC 602) in support of his contention that
addition of a new ground of defence or substituting or altering a defence or
taking inconsistent pleas in the written statement can be allowed as long as the
amended pleading do not result in causing grave injustice and irretrievable
prejudice to the plaintiff or disabling him completely.
9. On the other hand, Mr.K.Srinivasan, learned counsel for the
respondent contended that the defendants were not entitled to set up such
conflicting cases as the proposed amendment would change the very complexion of
the defence. He further contended that under the proviso to Order 6 Rule 17 of
the Civil Procedure Code as substituted in 2002, no application for amendment
should be allowed after the commencement of the trial, unless the court comes to
the conclusion that inspite of due diligence, the party could not raise the
matter earlier. He would place reliance on the decision of the Hon’ble Supreme
Court reported in the case of Ajendraprasadhi N. Pandey and another Vs. Swami
Keshavprakeshdasji N. and others (2006 (12) SCC 1), a passage has been extracted
hereunder for ready reference:
No facts were pleaded nor were any grounds raised in the amendment
application to even remotely contend that despite exercise of due diligence
those matters could not be raised by the appellants. Under these circumstances,
the case is covered by the proviso to Rule 17 of Order 6 and, therefore, relief
deserves to be denied.
A mere averment in the amendment application that the same “could not be
submitted before the court in spite of utmost care taken by the defendant
applicants” does not satisfy the requirement of Order 6 Rule 17 without giving
the particulars which would satisfy the requirement of law that the matters now
sought to be introduced by the amendment could not have been raised earlier in
spite of due diligence. The trial is deemed to commence when the issues are
settled and the case is set down for recording of evidence. In the impugned
order the appellants have admitted that all the issues raised by way of proposed
amendment in the written statement were taken before the Supreme Court in the
appeal from order filed by the present defendants in the civil appeal filed
before the Supreme Court and again in the special leave petition filed
subsequently. As rightly pointed out by respondent 2, any section should not be
so interpreted that part of it becomes otiose and meaningless and very often a
proviso itself is read as a substantive provision it has to be given full
effect.
10. A three-Judge Bench of the Hon’ble Supreme Court speaking
through Ray, C.J. in Modi Spg. & Wvg. Mills Co. Ltd., Vs. Ladha Ram & Co.
opined: (SCC P.321, para 10) has held thus:-
“10.It is true that inconsistent pleas can be made in pleadings but the
effect of substitution of paras 25 and 26 is not making inconsistent and
alternative pleadings but it is seeking to displace the plaintiff completely
from the admissions made by the defendants in the written statement. If such
amendments are allowed the plaintiff will be irretrievably prejudiced by being
denied the opportunity of extracting the admission from the defendants. The
High Court rightly rejected the application for amendment and agreed with the
trial Court.”
11. This Court in the case of D.Ramanujam Vs. R.Panneerselvam (2006
(3) LW 141) has held that when the trial has already commenced, the present
amendment petition filed without giving any valid reason for not filing the
amendment before the Commencement of the trial and even after the trial, the
Court cannot allow the amendment petition unless the court is satisfied that
inspite of due diligence, the party cannot raise the matter.
12. In yet another decision reported in Kamatchi Ammal Vs.
Lakshmanan (2006 (4) CTC 135), this Court has reiterated that if the amendment
sought by way of additional written statement would result in putting
inconsistent or alternative plea that would displace plaintiff’s case and cause
him irretrievable prejudice cannot be allowed.
13. In R.S.Nagarajan Vs. R.S.Gopalan and others (2007 (1) CTC 586),
this Court has held that the defendant cannot introduce new case or mutually
destructive pleas by way of additional written statement.
14. In the present case, it is relevant to refer to certain facts
for better appreciation. The suit has been posted for trial on 03.03.2004 and
the plaintiff’s husband has filed the proof affidavit on 04.03.2004 and since,
the counsel for the defendants have reported no instructions, the suit has been
decreed ex-parte. Subsequently, the petitioners have filed an application in
I.A.No.34 of 2006 and the ex-parte decree has been set aside on 05.06.2006. At
request by the defendants, the case has been posted to 17.07.2006 for cross
examination of plaintiff’s witness and again on 18.07.2006, the defendants
failed to appear and hence, an ex-parte decree has been passed for the second
time. Thereafter, an application has been filed by the defendants in I.A.No.86
of 2006 and the ex-parte decree has been set aside and the case had been posted
to various dates and finally on 18.10.2006. On the said date, the petitioners
have come forward with this application.
15. When the trial has already commenced the present amendment
petition has been filed without giving any valid reason for not filing the
amendment before the commencement of the trial. In the affidavit filed in
support of the petition for amendment, it is merely stated that they have
omitted to mention the said details by inadvertence and it is not wilful or
wanton. The various dates of hearing with reference to the proceedings taken
before the Court which has been elaborately spelt out by the trial Court would
show that they were lacking in bonafides in filing the said amendment petition.
16. After the commencement of trial, the Court cannot allow the
amendment petition unless the Court is satisfied that inspite of the due
diligence the parties could not raise the matter. No facts are pleaded nor are
any grounds raised in the amendment application to even remotely contend that
despite exercise of due diligence those matter could not be raised by the
petitioners. It is apparent that the said matters were well within their
knowledge and the amendment sought at the belated stage that too when the trial
has commenced and prior to that, the suit has been allowed to be decreed ex-
parte twice, certainly the grant of amendment would cause serious prejudice to
the contesting respondent/plaintiff and hence, it is in the interest of justice
that the amendment sought for has to be denied. In this case, the trial Court
has correctly applied the proviso to Order 6 Rule 17 of CPC and had come to a
correct conclusion that the defendants have not stated any reason in the
amendment petition for belated filing.
17. In the foregoing reasons, this Court is of the view that there
is no error or infirmity in the order of the lower Court. Also, there is no
improper exercise of discretion in dismissal of the amendment petition and
hence, the order does not require interference.
18. In the result, the Civil Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed. There shall be no
orders as to costs.
SRCM
To
The Additional Subordinate Judge,
Tenkasi.