IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2008 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN C.R.P.PD.No.761 and 762 of 2008 and M.P.No.1 of 2008 Immanuel Rajachandran ... Petitioner in both C.R.Ps. Vs Chinnarajulu Reddiar ... Respondent in both C.R.Ps. Both the Civil Revision Petitions are filed under Article 227 of Constitution of India, against the Orders dated 9.10.2007 passed in I.A.Nos.252 of 2007 and 58 of 2007 respectively in O.S.No.60 of 2002 on the file of the District Munsif-cum-Judicial Magistrate, Uthiramerur. For Petitioner in : M/s.T.Arulraj & both C.R.Ps. J.Alexander For Respondent in both C.R.Ps. (Caveator) : Mr.M.Christopher *****
COMMON ORDER
The above Civil Revision Petitions are filed against the Orders dated 9.10.2007 passed in I.A.Nos.252 of 2007 and 58 of 2007 respectively in O.S.No.60 of 2002 on the file of the District Munsif-cum-Judicial Magistrate, Uthiramerur.
2. The defendant in O.S.No.60 of 2002 is the revision petitioner before this court in both the Civil Revision petitions.
3. The respondent/plaintiff filed O.S.No.60 of 2002 for a permanent injunction restraining the revision petitioner/defendant from interfering with the peaceful possession and enjoyment of the suit property. The revision petitioner as defendant filed a written statement and the suit is being contested. The trial has commenced and during the trial, I.A.No.252 of 2007 in I.A.No.58 of 2007 has been filed by the respondent/plaintiff under Order VI Rule 17 of C.P.C. to amend the particulars mentioned in the plaint. I.A.No.58 of 2007 has also been filed by the respondent/plaintiff under Order VI Rule 17 to amend the plaint. In support of I.A.No.58 of 2007, an affidavit has been filed by the respondent/plaintiff wherein it is stated that due to subsequent developments, he was forced to file the petition for an amendment. The amendment sought for in I.A.No.58 of 2007 is that, to add a para as Para 6(a) in the plaint, wherein it is stated that impugned sale deed and the alleged Koorchit are void abinitio and they are not binding on the plaintiff. The defendant under the guise of a sale deed created a clog on the plaintiff’s title to the suit property. Another amendment sought for is to delete para 8 in the plaint and to substitute a new para 8 showing changes in the cause of action. The consequent amendment is with regard to the jurisdiction value and also to add two new prayers i.e., one for declaration of the plaintiff’s title and another for declaration of the Koorchit as void. The said I.A.No.58 of 2007 was resisted by the revision petitioner/defendant by filing a counter.
4. In I.A.No.252 of 2007, the case of the respondent/plaintiff is that, the schedule of property and the particulars given are wrong and therefore, the amendment petition has been filed to correct those particulars. This was also resisted by the revision petitioner/ defendant by filing a counter. The trial court by a common order dt.9.10.2007 allowed both the applications on condition that the respondent/plaintiff pays a cost of Rs.2,000/- in I.A.No.58 of 2007 and a cost of Rs.1500/- in I.A.No.252 of 2007. Aggrieved by the same, the revision petitioner/defendant filed the above Civil Revision petitions under Article 227 of the Constitution of India.
5. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. I have also gone through the documents and judgments filed in support of their submissions.
6. It is an admitted fact that the plaintiff’s side evidence was closed and the evidence on the side of the defendant is about to commence. At that stage I.A.No.246 of 2006 was filed by the revision petitioner to admit the Koorchits and it was allowed on 16.10.2006. Thereafter, the respondent/plaintiff changed his counsel and I.A.No.58 of 2007 was filed. In I.A.No.58 of 2007, the respondent/ plaintiff wanted to convert the suit from bare injunction to declaration of title. Therefore, instead of driving him to file yet another suit for determination of title, the trial court has correctly allowed I.A.No.58 of 2007 to avoid multiplicity of proceedings. Similarly, I.A.No.252 of 2007 has been filed to rectify the mistakes that crept in I.A.No.58 of 2007 and by allowing both the applications, no real prejudice would be caused to the revision petitioner/ defendant. For the delay and inconvenience caused, the trial court has rightly imposed a cost of Rs.2,000/- in I.A.No.58 of 2007 and Rs.1500/- in I.A.No.252 of 2007. Thus, in my view the trial court has rightly decided the matter leaving no room for interference by this court under Article 227 of the Constitution of India.
7. In 2006(5) C.T.C. 609 (Hi. Sheet Industries, a partnership firm, carrying business at 61-D, D.V. Road, Ambur Town, Vellore District Vs Litelon Limited, having its Office at No.68, Sipcot Industrial Complex, Hosur, rep by its Managing Partner, S.Gokul and others), a Full Bench of this court held as under:
“In the result, the reference is answered holding:
(1) that the delay in filing the Application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the Court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the Suit.
(2) According to the Proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed.
(3) The Proviso to order 6, Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 1.7.2002 and not to the pleadings instituted prior to 17.7.2002 and while considering the proviso to Order 6, Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents, addressing of arguments, etc. and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.
(4) Before parting with the decisions, we are tempted to cite a paragraph from a case Ma Shwe Mya V. Maung Ma Hnaung, AIR 1922 PC 249:
“All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.”
Keeping the above principle, the Court of Law has to dispense the justice.
(5) Therefore, we hold that the impugned order, disallowing the amendment, is liable to be set aside for more than one reason.
(6) In view of our aforesaid discussion, we re of the view that the trial court has erred in rejecting the Application for amendment of the plaint. Accordingly, the order of the trial court in I.A.No.589 of 2002 in O.S.No.45 of 1996 is set aside and the Application for amendment of plain is allowed. The plaintiff is directed to proceed to the trial Court forthwith and take immediate steps for the necessary amendment as mentioned in the said Application and carry out the amendment within a period of one month from the date of this order.
(7) We cannot ignore the facts and circumstances of this case and accordingly, we direct the trial court to dispose of the suit itself within a period of three months from the date of communication of this order to it, as already there is a considerable delay by now. There shall be no order as to costs. Consequently, the connected C.M.P.No.8415 of 2003 is closed.”
8. In 2007(5) C.T.C. 595 (Church of South India Trust Association, Tiruchirapalli-Thanjavur Dioceasan Council, represented by its Diocesan Treasurer, Mr.R.Sureshkumar and others Vs Kovil Pillai and others), the principles governing the applications filed under Order VI Rule 17 C.P.C. are dealt with by this court, which read as under:
“13. A perusal of the judgments cited by the learned counsel for the petitioners would bring out the following principles that are governing the Application filed under Order 6, Rule 17, C.P.C.
(1) Amendment to the pleadings cannot be turned down by Courts merely on the score that they introduce an inconsistent plea or a new cause of action.
(2) The true test is whether the amendment is foreign to the subject matter of the suit and if not whether it would be in the interest of justice to grant it.
(3) Amendment may be allowed irrespective of law of limitation, if the cause of action is not going to be changed and in the interest of justice.
(4) Since the amendment of the plaint being the discretion of the Court, it need not be refused on technical grounds.
(5) Alternative relief sought by way of amendment can be allowed even if belated, but the other side should be compensated with costs.
(6) Allowing of this Application is a rule and rejection is an exception.
(7) Pre-trial amendment are to be allowed more liberally than those which are sought to be made after the commencement of trial or after the conclusion thereof.
(8) If it is permissible for the plaintiff to file an independent Suit, there is no difficulty in accepting his Application for amendment of plaint.”
9. In the light of the above judgments also, the revision petitioner is not entitled to any relief in the above revision petitions. Consequently, both the Civil Revision petitions are dismissed. No costs. Connected miscellaneous petition is also dismissed.
10. At the time of passing the orders by this court, a Memo was filed by the revision petitioner stating that the respondent/plaintiff died on 20.7.2008 and steps are being taken by the revision petitioner to bring the legal representatives of the deceased on record.
11. While recording this memo, there is no need to bring the legal representatives in this Civil Revision petition as the respondent/ plaintiff passed away during the period between the conclusion of the hearing and the pronouncing of the orders and therefore, orders could be passed by this court in the above Civil Revision petitions as per Order 22 Rule 6 C.P.C., notwithstanding the death of the respondent/plaintiff and the orders shall have the same force and effect as it has been pronounced before the death took place.
vaan
To
The District Munsif-cum-Judicial Magistrate,
Uthiramerur