IN THE HIGHCOURT OF JUDICATURE AT MADRAS
DATED : 27.04.2011
CORAM:
THE HONOURABLE MR.JUSTICE K.VENKATARAMAN
CIVIL REVISION PETITION No.803 OF 2009
1.N.Palaniammal
2.Uma Loganathan
3.S.Senthilnathan
4.G.Ramamoorthy
5.Sridhara Saravanasundar
6.T.Santha
7.G.Sachithanandam ... Petitioners
VS.
1.Smt.B.Chandrakala
2.Minor Vignesh Nahigharam alias
Bala Vignesh
rep. By his grand father &
guardian Mr.Thangamuthu .. Respondents
PRAYER: Petition filed under Article 227 of the Constitution of India against the order dated 20.01.2009 passed by the Additional District Judge (Fast Track Court No.1), Coimbatore in I.A.No.624 of 2007 in O.S.No.453 of 2005.
For Petitioners : Mr.K.Subramanian, senior
counsel for
Mr.M.Mohammed Safi
For Respondents : Mr.K.M.Vijayan, senior counsel
for Mr.Baskar for R1
No appearance for R2
O R D E R
The above referred civil revision was filed against the order allowing the application in I.A.No.624 of 2007, an application for amendment of the plaint in O.S.No.453 of 2005 dated 20.01.2009 of the learned Additional District Judge (Fast Track Court No.1), Coimbatore.
2.The defendants 2, 4 to 7, 9 and 10 in the above suit are the petitioners and the plaintiff thereon is the 1st respondent and the 11th defendant is the 2nd respondent in this revision.
3.The 1st respondent has filed the said suit for declaration of her title over the suit property and for permanent injunction, restraining the petitioners and the 2nd respondent herein from interfering with her peaceful possession and enjoyment of the suit property. In the said suit, she filed an application in I.A.No.624 of 2007 for amendment of the plaint incorporating a prayer for recovery of possession. The learned trial Judge allowed the said application and as stated already, the present revision is directed against the said order.
4.The reason for filing the said application as set out by the 1st respondent herein in her application for amendment of the plaint is that while filing the suit, at the first instance, she had prayed for relief of permanent injunction stating that her possession is being disturbed by the respondents/the defendants 1 to 10 in the suit and the 2nd respondent herein; that the respondents 1,2,6, and 7/the defendants 1,2,6 and 7 had already filed suit for permanent injunction against her as though she was disturbing their possession; that the interim order granted in their case had been made absolute and hence, she was advised to amend the plaint suitably by seeking relief of possession, for proper and effective adjudication.
5.However, the proposed amendment as set out in the petition under Order 6 Rule 17 C.P.C., is to the following effect:
Para 11 A.The plaintiff humbly states that she has been put in possession of the suit property as per the Will dated 01.02.1998. After the death of plaintiff’s husband, the plaintiff is in possession and enjoyment of the suit property. The plaintiff is employed as Principal at Navarasam Arts and Science College for Women, Archalur, Erode District. Taking advantage of her absence, the defendants 1,2,6 and 7 have made unauthorised attempts and trespassed into the suit property. Since the defendants claim that they are in possession, to have proper adjudication, the plaintiff is obliged to seek the relief of possession. Unless the defendants are directed to deliver vacant possession of the suit property, the plaintiff’s valuable right will be defeated and she will be put to great hardship.
6.The learned senior counsel appearing for the petitioners submitted that when the reason that has been set out in the affidavit in support of the application for amendment is that in view of the interim order in the other suit filed by them, the necessity has arisen for the 1st respondent herein to file the application for the amendment of plaint seeking relief of recovery of possession, in the proposed amendment, it is stated that the petitioners, taking advantage of her absence, have trespassed the property and hence, the necessity has arisen for the application for amendment of the plaint seeking relief of recovery of possession. Hence, it is contended by the learned senior counsel appearing for the petitioners that when a different stand is taken, the Court below ought to have rejected the application filed by the 1st respondent to amend the plaint incorporating the prayer for recovery of possession.
7.On the other hand, the learned senior counsel appearing for the 1st respondent contended that when an application was filed for amendment of the plaint before trial, a liberal approach has to be made. That apart, he has contended that amendment of pleadings can be permitted at any stage of the proceedings, when it is necessary for the purpose of determining the real question of controversy between the parties. Thus, he has contended that the Court below has rightly allowed the application filed by the 1st respondent for amendment of the pleadings.
8.I have carefully considered the submissions made by the learned senior counsel appearing for the petitioners and the learned senior counsel appearing for the 1st respondent.
9.It is an admitted case that the 1st respondent filed the suit in O.S.No.453 of 2005, which is pending on the file of the learned Additional District Judge (Fast Track Court No.1), Coimbatore for declaration of her title over the suit property and for permanent injunction restraining the petitioners as well as the 2nd respondent herein from interfering with her peaceful possession and enjoyment over the suit property. The 1st respondent thereafter has filed an application in I.A.No.624 of 2007 for amendment of the plaint seeking to incorporate a prayer for recovery possession.
10.No doubt as contended by the learned counsel appearing for the petitioners in the affidavit filed in support of the application, the petitioners have pleaded that since the petitioners have filed the suit and obtained an order of injunction against the 1st respondent, the necessity has arisen for her to file an application for amendment. However, in the particulars of amendment, it is stated that in her absence, the petitioners have trespassed into the property and hence the necessity has arisen for her to file an application for amendment of the pleadings. Nevertheless, the case of the 1st respondent was that the petitioners are in possession of the property and hence, an application has been filed for amendment of the plaint seeking the relief of recovery of possession. Admittedly, the petitioners have filed a suit in O.S.No.371 of 2000 on the file of the Subordinate Judge, Coimbatore and obtained an order of injunction against the 1st respondent in respect of the suit property in I.A.No.300 of 2000. Therefore, the 1st respondent would have thought that the suit for declaration and injunction may not be maintainable and a relief of recovery of possession would be the best recourse.
11.While entertaining an application for amendment, the Court cannot go into the merits of the amendment. The merits of the pleadings by way of amendment cannot be gone into at the time of entertaining the application for amendment of pleadings and the same can be gone into only at the time of trial. Law of pleadings is only to ensure that both parties are aware of the contentious issues before parties go for trial. The Courts have to see that substantial justice is done between the parties and the Code of Procedure itself was designed to facilitate that substantial justice is done. When doing substantial justice, all technical pleas have to be considered next to rendition of substantial justice. At the same time, when a party seeks amendment of the pleadings incorporating totally a new cause of action, the same cannot be permitted. In the case on hand, as stated already, the 1st respondent though originally sought for permanent injunction against the petitioners, now seeking a relief of recovery of possession. Whatever the reason be, for filing such application, the sum and substance is that the 1st respondent admitting the possession of the petitioners, seeking a relief of recovery of possession.
12.In the judgment reported 2008(1) CTC 19 (R.Dhanalakshimi and others Vs. Senthilkumari and others), the Division Bench of this Court, considering the several decisions of the privy council as well as the Hon’ble Apex Court, has held that the Court has got power to allow either party to alter or amend pleadings at any stage of proceedings which is necessary for purpose of determining real questions of controversy between parties. Paras 25, 26, 27 part, 29 and 30 of the said decision are usefully extracted hereunder:
25. The Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249 has observed that:
All rules of Courts 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.
26. The object of law of pleadings is that the Court and the respective parties should fully know the case and contentious issue before the parties go in for trial so that the trial may proceed in the well defined channel.
27. In the case on hand also, the real question in controversy is only title to the suit property based on which the relief of injunction has been sought for. When the entire plaint is read together, though the relief sought for is for injunction, while considering the stand taken in the written statement, the dispute is only in respect of the title. By allowing this amendment no prejudice is caused or stated to have been caused to the appellants/defendants. Only technical plea was raised. Fairplay in action must inhere in judicial approach and Court’s approach should be oriented with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties. –
29. The Supreme Court, in the case of Bhagwan Swaroop v. Mool Chand has observed that the laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best.
30. In the very same judgment, the Court observed that laws of procedure are devised for advancing justice and not impeding the same. The Supreme Court in that judgment quoted from the decision in the case of Sangram Singh v. Election Tribunal Kotah wherein it was observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in the decision in the case of Kalipada Das v. Bimal Krishna Sen Gupta, 1983 (1) SCC 14.
13.Considering the above facts and circumstances, I am of the considered view that the Court below has rightly allowed the application filed by the 1st respondent for amendment of the pleadings. I do not find any infirmity or illegality in the said order.
14.In fine, the Civil Revision Petition stands dismissed. No costs.
arul
To
1.The Additional District Judge,
Fast Court No.1,
Coimbatore