IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.11.2008 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(PD).No.2555 of 2008 and M.P.No.1 of 2008 Meenambal @ Meena ... Petitioner Vs. 1.C.Senthilkumar 2. B.Ranganayaki ... Respondents Prayer: Petition filed under Article 227 of the Constitution of India against the fair and decretal orders dated 23.06.2008 made in I.A.No.7019 of 2008 in O.S.No.2826 of 2004 passed by the learned I Assistant Judge, City Civil Court, Chennai. For Petitioner : Mr.M.Balasubramanian For Respondent 1 : Ms.A.Premavathy For Respondent 2 : Mr.J.Franklin ORDER
The civil revision petitioner/first respondent/first defendant has filed this civil revision petition as against the order dated 23.06.2008 in I.A.No.7019 of 2008 in O.S.No.2826 of 2004 passed by the I Assistant Judge, City Civil Court, Chennai in allowing the application filed by the first respondent/petitioner/plaintiff under Order VI Rule 16 and 17 of Civil Procedure Code praying for permission to amend the prayer in the suit.
2.The trial Court, while passing orders in I.A.No.7019 of 2008, has inter alia opined that ‘even though the learned counsel for respondents had contended that the issue of limitation is also be considered while allowing such prayer this Court is of the considered view to follow the principle laid down by the Honourable Supreme Court that the procedural law is hand maid of justice and in order to render substantial justice it is necessary to amend the prayer alone without amending the pleading which will not prejudice the respondents in any way. In order to protect the interest of the respondents the liberty is given to the respondents to raise the issue of limitation during the trial and resultantly, allowed the application without costs.’
3.The learned counsel for the revision petitioner/ first respondent/first defendant submits that the trial Court erred in allowing the application for amendment at the part-heard stage of the suit when D.W.2 is in the witness box and that the amendment now ordered by the trial Court has taken away the petitioner’s right on account of limitation and permitting the first respondent/petitioner/ plaintiff to include the prayer to set aside and declare the sale deed as null and void, by way of an amendment at the stage of cross examination of D.W.2 is not only an illegality but also a material irregularity in the conduct of the suit and that the trial Court has committed an error while giving liberty to the parties to raise the question of limitation almost at the fag end of the suit itself and the relief prayed for in the amendment application is of a substantial nature which changes the character of the suit and therefore, prays for allowing the revision in the interest of justice.
4.In the counter filed by the revision petitioner/first respondent/first defendant, it is inter alia mentioned that sale effected on 27.05.2004 is genuine and legal and she sincerely felt that she is the owner and so, sold it and if the first respondent/petitioner/plaintiff thinks, that he is the owner he could have filed the title suit but he has not been done so and he has filed only a suit for permanent injunction restraining the respondents not to interfere with his imaginary possession and enjoyment of the suit properties and even as per the plaint readings, the first respondent/petitioner/plaintiff is aware of the sale transactions on 21.3.2004 itself, when he issued notices to her and Sub-Registrar of Rayapuram and again on 27.05.2004, when the publication has been effected in ‘Makkal Kural’ in regard to the sale transactions of the respondents etc. and therefore, when the first respondent/petitioner/plaintiff has filed the suit on 20.06.2004, he could have added the prayer of setting aside the sale but instead has filed the present application resorting to delay and hence, prays for dismissal of the application.
5.The learned counsel for the revision petitioner cites the decision in D.Ramanujam V. R.Panneerselvam 2006 (3) CTC 27 wherein this Court has held that ‘party seeking amendment should exercise due diligence and seek for such amendment before commencement of trial and even before trial of suit commenced party had enough opportunity etc.’ He also relies on the decision in Jeya V. Sundaram Iyyar (2005) 4 M.L.J. 278 whereby this Court has held that ‘unless inspite of due diligence the party could not have raised the matter before commencement of trial, proposed amendment at the stage of pronouncing the judgment is disallowed.’ Yet another decision in S.Ahamed Meeran and others V. S.Kumaraswamy 2006 (1) CTC 55 is relied on by the learned counsel for the revision petitioner, wherein this Court has inter alia held that ‘liberal approach cannot be expected when amendment is sought after commencement of trial and that plaintiff knew fully well that title was disputed and yet did not file any application to amend plaint for well over 2 years and waited for trial to conclude and arguments to begin and facts and circumstances of the case clearly shows that amendment cannot be ordered and it cannot be compensated in terms of cost and order allowing amendment suffers from material irregularity and order allowing amendment is set aside.’ The learned counsel for the revision petitioner presses into service the decision in R.N.Jadi and Brothers and Others V. Subhashchandra (2007) 6 SCC 420 at page 421 wherein the Hon’ble Supreme Court has observed that ‘the observance of time schedule contemplated by Order 8 Rule 1 shall be the rule and departure therefrom an exception, made for satisfactory reasons only etc.’
6.The learned counsel for the first respondent submits that the proposed amendment is not bringing out a new cause of action and further that the same will not alter the nature and character of the suit and therefore, the order passed by the trial Court in allowing the application for amendment assigning reasons are correct in the eye of law and the same need not be interfered by this Court. To lend support to the contention, the learned counsel for the first respondent/petitioner/plaintiff cites the decision in Church of South India Trust Association and 3 others V. Kovilpillai and 8 others 2008-3-L.W.86 whereby this Court has held that ‘amendment could be ordered at any time, at any stage of the proceedings for determination of real questions in controversy between the parties.’
7.It is to be noted that power to allow amendment should be liberally employed, in the opinion of this Court. As a matter of fact, the liberal approach which guide the exercise of discretion in allowing an amendment are (i)that plurality of proceedings must be avoided (ii) that amendments which do not totally alter the character of an action ought to be rightly granted, (iii) while caution should be used to see that injustice and prejudice of an irremediable character are not imposed upon the other side under the pretext of amendment, (iv) that one separate cause of action should not be substituted for another and that the subject matter of the suit should not be changed by way of an amendment.
8.It cannot be gainsaid that an amendment can be refused where it is not necessary for the purpose of determining the real question in controversy between the parties. The general rule is ‘all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy.’ However, the power of the Court in allowing the amendment application is purely a discretionary one.
9.As far as the present case is concerned, the first respondent/petitioner/plaintiff has issued a notice on 21.3.2004 itself to the revision petitioner/first respondent /first defendant and the Sub-Registrar of Rayapuram and on 27.05.2004 when publication has been effected in ‘Makkal Kural’ in regard to the sale transactions and on 28.05.2004 when he made representation to the Sub-Registrar, Rayapuram regarding the sale of suit properties and on 28.05.2004 itself, the Sub-Registrar informed about the sale to the first respondent/petitioner/plaintiff and therefore, when the first respondent/plaintiff has filed a suit on 20.06.2004 itself, he could have included the prayer of setting aside the sale made by the revision petitioner/first respondent/first defendant and instead of not doing that, the first respondent/petitioner/plaintiff has filed IA belatedly. However, the amendment application I.A.No.7019 of 2008 is projected on 14.11.2007 praying to include a paragraph in the plaint to declare the sale deed dated 27.05.2004 as null and void. When the first respondent/ petitioner/plaintiff has issued notice to the revision petitioner/first respondent/first defendant as early as on 21.03.2004, then at that time itself, the first respondent /plaintiff is aware of the fact in regard to the factum of cancellation of the sale deed dated 27.05.2004 and further, he cannot ignore of the same in any fashion, in the considered view of this Court.
10.The learned counsel for the revision petitioner cites the decision in Rajkumar Gurawara (dead) V. S.K.Sarwagi & Co. Pvt. Ltd., and another 2008 (5) CTC 253 wherein the Hon’ble Supreme Court has held that ‘if an amendment is sought for after commencement of trial, question of prejudice to opposite party may arise and hence it is incumbent of the Court to satisfy conditions prescribed in Proviso to Order VI, Rule 17 and when the plaintiff was made aware of details even before suit by way of reply notice, it is not open to the plaintiff at the stage of arguments to seek an amendment.’
11.It is pertinent to point out that an amendment which is sought for when it purports to open a different or additional approach to the facts already stated but changes the nature of the claim in the plaint or sets up a new case ought not to be allowed, in the considered opinion of this Court.
12.In the instant case on hand, the amendment application I.A.No.7019 of 2008 has been filed belatedly at the time when D.W.2 is to be cross examined before the trial Court. Moreover, the first respondent/petitioner/plaintiff is aware of the fact as early as on 21.03.2004, when he has issued notice to the revision petitioner and the Sub-Registrar, Rayapuram and on 27.05.2004 when the publication has been effected in ‘Makkal Kural’ in regard to the sale transactions and on 28.05.2004 when he made representation to the Sub-Registrar, Rayapuram regarding the sale of suit properties and on 28.05.2004 itself, the Sub-Registrar informed about the sale to the first respondent/petitioner/ plaintiff and therefore, when he filed the suit on 20.06.2004 he could have included the prayer of setting aside the sale made by the revision petitioner/first respondent/first defendant and instead of not doing that, the first respondent/plaintiff/petitioner has filed IA belatedly. Therefore, it is quite evident that I.A.No.7019 of 2008 praying for an amendment to add a paragraph in the Plaint after commencement of trial is not maintainable per se in the eye of law and furthermore, the proposed amendment sought for by the first respondent is opening an additional approach to the facts already stated in the plaint and in that view of the matter, the order passed by the trial Court in I.A.No.7019 of 2008 allowing the application is not correct resultantly, this Court allows the civil revision petition in furtherance of substantial cause of justice.
13.In fine, the Civil Revision Petition is allowed. The order passed by the trial Court in I.A.No.7019 of 2008 is set aside for the reasons assigned by this Court in this revision. The trial Court is directed to dispose of the suit O.S.No.2826 of 2004 on the file of I Assistant City Civil Judge, Chennai within a period of three months from the date of receipt of copy of this order and to report compliance to this Court without fail. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
12.11.2008
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I Assistant City Civil Court, Chennai.
M.VENUGOPAL,J.
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ORDER IN
C.R.P.(PD).No.2555 of 2008
12.11.2008