In the High Court of Judicature at Madras Dated: 17 -09-2010 Coram; The Hon'ble Mr. Justice R.S.RAMANATHAN C.R.P.(PD) No.3967 of 2009 & M.P.No.1 of 2009 N.J.Senthilkumar ... Petitioner Vs. N.B.Subash ... Respondent
This Civil Revision Petition is filed under Article 227 of the Constitution of India as against the fair and decreetal order dated 20.8.2009 in I.A.No.20174 of 2008 in O.S.No.3220 of 2008 on the file of XVI Assistant Judge City Civil Court, Chennai.
For Petitioner : Mr. R.Subramanian For Respondent : Mr. N.Rajan O R D E R:- The plaintiff in O.S.No.3220 of 2008 on the file of the XVI Assistant City Civil Court, Chennai, is the revision petitioner.
2. The revision petitioner filed the above suit for permanent injunction, restraining the respondent herein from dispossessing him except in accordance with law. In the plaint the revision petitioner has stated that he had entered into an agreement of sale with the respondent/defendant for the purchase of the suit property and paid a sum of Rs.6,00,000/- on various occasions, which was part of the sale consideration and the revision petitioner is prepared to pay the balance sale consideration and get the document registered in his favour and he is also ready and willing to perform his part of the contract and the revision petitioner also reserved his right to file the suit for specific performance. As the respondent/defendant attempted to interfere with the plaintiff’s possession by refusing to execute sale deed, the plaintiff has filed the suit for injunction.
3. The respondent/defendant filed a detailed written statement denying the agreement of sale as alleged by the plaintiff, but admitted the receipt of Rs.6,00,000/- from the plaintiff as a loan. The respondent/defendant also admitted that the plaintiff is in possession of the suit property and also made a counter claim directing the plaintiff to hand over the vacant possession of the suit property to him on receipt of Rs.6,77,675/- being the principal with interest payable by him to the plaintiff. Further, issues were framed and the case was posted for trial. At that state, the plaintiff filed an application in I.A.No.20174 of 2008 under Order 6, Rule 17 of CPC to amend the plaint by adding a relief of specific performance directing the respondent/defendant to execute a sale deed, after receiving the balance sale consideration of Rs.50,000/- in favour of the plaintiff and also made necessary particulars in the plaint to be added and that application was contested by the respondent stating that by allowing the amendment, the character of the suit will be changed and there was no agreement of sale between the parties and the respondent/defendant has already made a counter claim for recovery of possession and at the belated stage, the amendment cannot be entertained. The learned XVI Assistant Judge, City Civil Court, Chennai, has accepted the contentions of the respondent/defendant and dismissed the application for amendment, holding that by allowing the amendment, the character of suit would be changed and that would also change the cause of action and nature of the suit. The learned Judge also dismissed the application on the ground that the amendment application was filed, when the case was posted for trial and therefore, under Order 6, Rule 17 proviso, the amendment cannot be allowed. Aggrieved by the same, this revision is filed by the plaintiff/revision petitioner.
4. Mr. R.Subramanian, the learned counsel for the revision petitioner has submitted that the trial has not commenced and when the case was posted for trial, at that stage, the application was filed by the plaintiff/revision petitioner for amendment, realizing that he ought to have filed a suit for specific performance of agreement of sale and the amendment would not change the character of the suit or would place the defendant in a different position, as necessary averments were already made in the plaint regarding the prayer for suit for specific performance and therefore, no prejudice would be caused to the respondent/defendant by allowing the application for amendment. The learned counsel for the revision petitioner also relied upon a judgment of a Division Bench of this Court reported in (2010 (2) C.T.C. 609 in ( Kedia Overseas Ltd Vs. Satellite Town Development Pvt. Ltd.,) and also the judgment of mine reported in 2010(4) C.T.C. 331 In ( A.A.Ganga Vs. A.R.Usha) in support of his contention.
5. On the other hand, Mr. N.Rajan, the learned counsel for the for the respondent has raised the following points:-
i) Under Order 2 Rule 2 CPC, every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and under sub rule 3, when the plaintiff omitted to include all the relief without leave of the Court, he shall not afterwards sue for any relief so omitted and that was sought to be overcome by filing an application to amend the prayer. In other words, the learned counsel for the respondent submitted that when the subsequent suit for specific performance is prohibited under CPC, that cannot be overcome by filing an application for amendment and therefore, the application is liable to be rejected and has been rightly rejected by the Lower Court.
ii) The suit was posted for trial and as per the judgment of the Hon’ble Supreme Court, after the commencement of trial, the application for amendment cannot be entertained, unless the plaintiff is able to prove to the satisfaction of the Court that despite due diligence, he was not able to file the application for amendment at an earlier stage as provided under the proviso to Order 6 Rule 17 CPC and in this case, it has not been stated by the plaintiff/revision petitioner that despite due diligence, he was not able to file an application for amending the prayer prior to the commencement of trial and the plaintiff was fully aware that he has to file the suit for specific performance and therefore, having filed the suit for injunction, he cannot convert the suit into one for specific performance, after the commencement of the trial, which is prohibited under the proviso Order 6 Rule 17 CPC.
iii) the proposed amendment will change the character of the suit and cause of action would also be changed, as the suit was filed for injunction and now, by virtue of the amendment revision, the petitioner wants to change the suit to one for specific performance of an agreement of sale, which is not permissible under law.
6. In support of his contention, the learned counsel for the respondent relied upon the judgments of this Court reported in 2010 (1) C.T.C. 837 in (S.Rajendran Vs K.Kanniah and Six others, 2008 (5) CTC 253 in ( Rajkumar Gurawara (Dead) through Lrs. Vs. S.K.Sarwagi & Co. Pvt. Ltd., & another), 2002 1 M.L.J. 758 in (M.S.Karuppusami Vs. Saravana Devei alias Vasanthamani and others) 2009 (2) C.L.T. 327 in (Bhagawath Devi Vs. Aswin C.Jain).
7. Heard both the parties.
8. In this case, it is admitted that the revision petitioner has filed the suit for injunction and in that suit, he has also made necessary averments regarding the relief of specific performance on the basis of an agreement of sale. In the plaint, he has mentioned about the agreement of sale and the sale consideration between the parties and also made necessary averments about his willingness and readiness to perform his part of the contract and also reserved his right to file the suit for specific performance. It is true that in the statement, the respondent/defendant has denied the agreement of sale, alleged to have been entered into between the parties, but admitted the receipt of Rs.6,00,000/- from the plaintiff and contended that the amount was received not towards sale consideration but as a loan. The respondent/defendant has also made a counter claim to take possession on payment of Rs.6,77,675/-. Therefore, in these circumstances, we will have to see whether the petition for amendment filed by the revision petitioner is maintainable in law.
9. The Lower Court has dismissed the application on the ground that the application for amendment was filed, after the case was posted for trial and as per Order 6 Rule 17, as amended in 2002, after the commencement of trial, no application for amendment of the pleadings shall be allowed, unless the Court comes to the conclusion that despite due diligence, the party could not have raised the matter before the commencement of the trial and in this case, after filing of the written statement along with the counter claim and after the case was posted for trial, the application was filed and no valid reasons has been stated by the plaintiff for having filed the application belatedly. The learned Judge also held that the amendment would also change the character of the suit. Therefore, we will have to see whether the reasons stated by the Learned Judge is in accordance with the law laid down by the Hon’ble Supreme Court and our High Court.
10. The Hon’ble Division Bench of this Court in the judgment reported in 2010 (2) CTC 609 in ( Kedia Overseas Ltd Vs. Satellite Town Development Pvt. Ltd.,) held that the suit for bare injunction could be amended into a suit for specific performance when necessary averments regarding the readiness and willingness to perform the contract was made in the original plaint. In the said judgment, it has been held as follows:-
” 24. A perusal of paragraph 12 and 13 of the plaint would disclose that averments have been made to that effect that the plaintiffs are ready and willing to perform their part of obligations, but the defendants are evading it. It is further averred that the plaintiffs had paid a sum of Rs.2,00,00,000/- towards part performance of their obligation and therefore, they are entitled to seek for specific performance and that they have also consciously reserved their right to file a separate Suit for specific performance against the defendants. Therefore, necessary averments for filing a suit for specific performance are available in the plaint. The plaint was verified on 07.02.2006.
26. A perusal of the averments made in the affidavit filed in support of the Application for amendment of the plaint would disclose that the avermetns made in the plaint are repeated and reiterated and no new averments have been made and necessary averments are available for the relief of specific performance.
27. The relief sought for by the plaintiffs by way of amendment is for appropriate direction directing the defendants to jointly execute the sale deed pertaining to the schedule mentioned properties and they did not seek for recovery of possession of the same. Therefore, the suit in any event cannot be construed as a Suit for land.
29. This Court, taking into consideration the ratio laid down in the above cited decisions and the facts of this case as available through pleadings and the averments made in the Application and the counter affidavit is of the considered opinion that the amendment of Plaint sought for by the appellants herein in no way alter the nature and character of the Suit. The issue with regard to the belatedness on the part of the appellants/plaintiffs to take out the above said Application and lack of bona fide on their part are disputed questions of fact which can be thrashed out only during the course of trial. This Court is also of the view that no prejudice will be caused to the respondent/defendant in the event of amendment being allowed. ”
In this case also, as stated supra, necessary averments for the suit for specific performance have been stated in the plaint and in para 10 of the plaint, it has been stated that the plaintiff is prepared to pay the balance amount to get his property registered and in paragraph 11 it has also been stated that the plaintiff has always been ready and willing to perform his part of the contract. Further, in the application for amendment, no new facts are stated to substantiate the case for specific performance and therefore, the facts of this case is similar to the case referred in (2010 2 C.T.C. 609) as held by the Division Bench of this Court and in such a case, the application can be allowed.
11. The learned counsel for the respondent raised the point that under Order 2 Rule 2, subsequent suit for specific performance is barred and when there is specific bar for filing a subsequent suit that cannot be overcome by filing the application for amendment. Though the argument appears to be attractive, having regard to the principles laid down by the Hon’ble Supreme Court regarding the amendment of pleadings, the argument of the learned counsel for the respondent cannot be accepted.
12. It is true that under Order 2, Rule 2, every suit shall include the whole of the claim which the plaintiff is entitled to make, in respect of the cause of action. But the plaintiff may relinquish any relief in order to bring the case within the jurisdiction of the Court. Under Order 2, Rule 2 (3), when a person is entitled to more than one relief in respect of the same cause of action he may sue for all or any of such relief but if he omits, except with the leave of the Court to sue for such relief, he shall not afterwards sue for any relief so omitted. Therefore, as per order 2 Rule 2 (3) , the second suit for specific performance is barred. As stated in Order 2 Rule 2 (1), the suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Therefore, the plaintiff has to ask for all the claims which he is entitled to in a suit and when he omits to ask for all the reliefs, he is entitled to include those reliefs by filing an application for amendment. As a matter of fact, the proviso to Order 6 Rule 17 is incorporated only for the purpose of adding or altering the pleadings which are necessary for the purpose of determining the real question between the parties. If the contentions of the learned counsel for the respondent is accepted, that under the Order 2 Rule 2, subsequent suit for specific performance is barred and therefore, the plaintiff is not entitled to amend and include prayer for specific performance, the purpose of incorporating Order 6 Rule 17 will become meaningless. Further, the purpose for which Order 6 Rule 17 has been introduced has been laid down by the Hon’ble Supreme Court in a recent judgment reported in 2009 (8) M.L.J. 907 (SC) in (Revajeetu Builders & Developers Vs. Narayanasamy & Sons and others). In the aforesaid judgment, the Hon’ble Supreme Court laid down the basic principles and also the factors which are necessary to be taken into consideration while allowing the application for amendment which are as follows:-
(i) Whether the amendment sought is imperative for proper and effective adjudication of the case?
(ii) Whether the application for amendment is bona fide or mala fide ?
(iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money.
(iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation.
(v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and
(vi) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.”
13. As per the clause (i) of the principles or factors laid down by the Hon’ble Supreme Court, when the application is imperative for proper and effective adjudication, the amendment can be allowed. Further, refusing amendment would in fact lead to injustice or lead to multiple litigation also.The facts which are to be taken into consideration for allowing the amendment is whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case, and if so the amendment can be refused. In this case, as laid down by the Hon’ble Division Bench of our Court, the judgment reported in 2010 2 C.T.C. 609, converting a suit for injunction into a Suit for specific performance would not alter the nature and character of the suit. Further, by allowing the amendment, another litigation is avoided and one of the principles for allowing the amendment is to avoid multiplicity of proceedings. Having regard to the necessary averments made in the plaint, the proposed amendment is imperative for proper and effective adjudication of the case and therefore, as per the law laid down by the Hon’ble Supreme Court, the above factors would justify the filing of the application for amendment. Further, it can not be stated that the application for amendment is malafide, as no such allegation has been made by the respondent that the proposed amendment is malafide in nature. However, as stated supra, necessary averments were already made in the original plaint and hence, it can not be contended that the proposed amendment is a malafide one. As regards the fourth point laid down by the Hon’ble Supreme Court, the proposed amendment would not cause any prejudice to other side for the simple reason that in the original plaint itself, necessary allegations were made about the agreement of sale and therefore, the respondent-defendant would not be taken by surprise by this amendment. Therefore all the factors stated by the Hon’ble Supreme Court for allowing the amendment are present in this case and hence, the application for amendment is liable to be allowed.
14. The learned counsel for the respondent further submitted that as per the proviso to Order 6 Rule 17, the amendment cannot be allowed after the commencement of trial and in this case, the trial has commenced, as the case was posted for trial and therefore, as per the law laid down by the Hon’ble Supreme Court in the judgment reported in 2009 2 S.C.C. 409 in (Vidyabai and others Vs. Padmalatha and another), the application for amendment cannot be allowed. According to the learned counsel for the respondent in the aforesaid judgment of the Hon’ble Supreme Court has relied upon a judgment reported in 2005 4 S.C.C. 480 in (Kailash Vs. Nanhku) in which it is held that in a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. and the following judgment rendered in (Union of India Vs. Major General Madan Lal Yadav ) 1996 (4) S.C.C. 127 it is held that the trial commences with the performance of the first act of steps necessary or essential to proceed with the trial and the date on which issues are framed is the date of first hearing, as per the proviso to Order 6 Rule 17 and hence, the application for amendment shall not be allowed, after the trail has commenced, unless the Courts comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial and in this case, the case was posted for trial and hence, the petition for amendment cannot be allowed, unless the plaintiff satisfies the Court that despite due diligence, he was unable to file the application for amendment at an earlier stage and the plaintiff has not made any attempt to prove the same and the plaintiff was aware that he has to file the suit for specific performance and also made necessary allegations in the plaint and had deliberately omitted to file the suit for specific performance and after the defendant filed the written statement making a counter claim and after the case was posted for trial, the application for amendment was filed and hence, it cannot be stated that despite due diligence the plaintiff could not filed the application for amendment prior to the commencement of trial and therefore, the amendment can be allowed. The learned counsel for the respondent also relied upon the judgment reported in 2010 (I) C.T.C. 837 in (S.Rajendran Vs K.Kanniah and Six others), 2008 (5) CTC 253 (SC) in ( Rajkumar Gurawara (Dead) through Lrs. Vs. S.K.Sarwagi & Co. Pvt. Ltd., & another) in support of his contention.
15. In the judgment reported in 2008 (5) C.T.C.253 (supra), the amendment application was sought to be filed after the trial was over and at the time of arguments. In the judgment reported in 2010 (1) C.T.C. 837 (supra), the amendment application was sought to be made after the conclusion of the trial. In those circumstances, the Hon’ble Supreme Court and our High Court have held that the amendment petition at the belated stage cannot be entertained as it is against the proviso to Order 6 Rule 16 and 17 of C.P.C. As a matter of fact in the judgment reported in 2006 (6) S.C.C. 498 in the matter of (Baldev Singh Vs. Manohar Singh) wherein the Hon’ble Supreme Court has interpreted the phrase commencement of the trial as follows:
“Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein before, the parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the Court to allow an amendment of the written statement at any stage of the proceedings.”
Further, in the judgment rendered in 2008 (8) S.C.C. 511 in the matter of (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) By Lrs. ), the Surepeme Court has held as follows:-
” Principles governing the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C are well settled. Order 6 Rule 17 postulates amendment of pleadings at any stage of the proceedings. All amendments ought to be allowed which satisfy the two conditions: (a) of not working in justice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in cost. ”
16. Therefore, considering the judgments of the Hon’ble Supreme Court referred to above, I am of the opinion that even though the case was posted for trial, application for amendment can be considered by the Court below as it would avoid multiplicity of proceedings and it is necessary for the purpose of determining the real controversy between the parties. As state supra, by allowing the amendment the nature and character of the suit would not be changed as laid down by the Division Bench judgment of this Court in 2010(2) C.T.C. 609(supra). Therefore, the submissions made by the learned counsel for the respondent cannot be accepted in the light of the judgments referred to above. As held by the Division Bench judgment of this Court, the suit for injunction can be converted into a suit for specific performance, if necessary allegations are made in the original plaint. Admittedly, necessary allegations were made in the original plaint. Therefore, the Lower Court has erred in dismissing the application for amendment and therefore, it is liable to be set aside and is hereby set aside and the revision petition is allowed. Consequently, connected Miscellaneous Petition is closed. No costs.
17.09.2010 sd Internet: Yes/No Index : Yes/ No R.S.RAMANATHAN. J., sd To The Learned XVI Assistant Judge City Civil Court, Chennai. C.R.P.(PD) No.3967 of 2009 1709.2010
