IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.02.2011 CORAM THE HON'BLE Mr. JUSTICE K.VENKATARAMAN C.R.P. (PD) No.3101 of 2010 and M.P.No.1 of 2010 R.Balaji ... Petitioner Vs. 1.V.Vijayan 2.Kuppu ... Respondents Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order and decretal order dated 10.8.2010 made in I.A.No.65 of 2010 in O.S.No.32 of 2008 on the file of the Principal District Munsif Court, Ambur. For petitioner : Mr.D.Rajendran For respondents : Mr.L.K.Manjunath O R D E R
The plaintiff in O.S.No.32 of 2008 before the learned Principal District Munsif, Ambur, aggrieved over the order dated 10.8.2010 passed by the said Court in allowing the application in I.A.No.65 of 2010 preferred by the respondents to amend the written statement, has come up with the present civil revision petition.
2. The respondents being defendants in the said suit, have filed an application in I.A.No.65 of 2010 for amendment of the written statement. The amendment that has been sought for by the respondents is only in respect of the boundaries set out in the written statement. The Court below found that the said amendment will not change the cause of action or the nature of the suit property and that it will not cause any prejudice to the petitioner and allowed the said application. Challenging the same, the petitioner has come up with the present civil revision petition.
3. Learned counsel appearing for the petitioner strenuously contended that in a mechanical way, the respondents herein have filed the said application for amendment in the written statement and the same should not have been allowed by the Court below. However, I am of the considered view that the amendment that has been sought for by the respondents does not alter the structure of the suit or does not change the cause of action.
4. In this connection, learned counsel appearing for the petitioner relied on the following decisions viz.,
(i) (2008) 7 SUPREME COURT CASES 85 Gautam Sarup v. Leela Jetly.
(ii) (2001) 2 M.L.J. 52 Tirupathi Nadar and others v. Pakiyalakshmi and other.
(iii) AIR 2006 SUPREME COURT 2832 Baldev Singh v. Manohar Singh.
(iv) 2010 (5) CTC 198 S.Sathish v. Dr.Sumathi.
(v) AIR 2007 SUPREME COURT 806 Ajendraprasadji N.Pande & Anr. v. Swami Keshavprakeshdasji N. & Ors.
(A) In (2008) 7 SUPREME COURT CASES 85, the Hon’ble Apex Court has held that the discretion of the Court in permitting amendment to pleadings has to be exercised judiciously. When once the defendant admitted certain statement in the written statement, the defendant cannot be permitted to amend the same to deny or dispute the plaintiff’s claim. In the case on hand, the respondents seek to amend the written statement only in respect of the boundaries of the property and nothing more. Hence, the said judgment may not be of any use to the petitioner.
(B) In the decision reported in (2001) 2 M.L.J. 52, this Court found that a new cause of action was prayed for by way of amendment and hence, rejected the same. This judgment also may not be of any use to the petitioner.
(C) In AIR 2006 SUPREME COURT 2832, the Hon’ble Apex Court has held that by way of amendment in the written statement, there is no withdrawal of the earlier admission made in the written statement and in such circumstances, the amendment in the written statement can be allowed. Even this judgment also may not be of any use to the petitioner.
(D) In the decision reported in 2010 (5) CTC 198, this Court has held that the defendant is entitled to take mutually inconsistent pleas, but cannot plead new case or take mutually destructive pleas. There cannot be any quarrel over the said proposition. However, as stated already, in the case on hand, the respondents herein are neither taking a new case nor they are altogether taking a new stand mutually destructive to the earlier statement. Hence, this judgment may not be of any use to the petitioner.
(E) The decision reported in AIR 2007 SUPREME COURT 806 is the case where the amendment that has been sought for is after the trial has commenced. In such circumstances, the Hon’ble Apex Court has held that no grounds have been raised in the affidavit in support of the application to amend the written statement that in spite of diligence, the same could not be raised. However, in the case on hand, the application has been filed before commencement of the trial and that too, only to change the boundaries. Hence, this judgment also may not be of any use to the petitioner.
5. Learned counsel appearing for the respondents relied on the decision reported in 2007 (3) CTC 400 Usha Balashaheb Swami v. Kiran Appasao Swami. In the said decision, the Hon’ble Apex Court has held that the Court should be normally liberal in granting permission for amendment of pleadings unless serious injustice or irreparable loss would be caused to the other side. That apart, the Hon’ble Apex Court has further held that amendment should not be ordered if it is going to materially alter or substitute the cause of action. In the case on hand, as stated already, the amendment that has been sought for does not change the cause of action.
6. Yet another decision that has been relied on by the learned counsel appearing for the respondents is reported in 2009 (4) CTC 37 Sarathamani v. R.C.Chenniappan. In the said decision, this Court has held that mis-description of the property not amounting to alteration of nature, character and cause of action can be rectified by amendment.
7. I had an occasion to consider the matter in issue and the same is reported in 2007-I-L.W.983 Rajam v. Kunjukrishnan & 2 Others. In the said decision, following the overall proposition of law laid down by this Court as well as the Hon’ble Apex Court, I have held that there shall be liberal approach in considering the application for amendment. That apart, I have held that pleadings can be allowed to be amended if it is to substantiate, elucidate and explain the pre-existing facts already contained in the original pleadings. In the case on hand, as already discussed, the respondents herein have sought for amendment only in respect of the boundaries.
8. Considering the overall circumstances, I am of the view that the order of the Court below does not require any interference by this Court.
9. In fine, the order of the learned Principal District Munsif, Ambur, dated 10.8.2010 made in I.A.No.65 of 2010 in O.S.No.32 of 2008 is confirmed and the civil revision petition stands dismissed. However, there is no order as to costs. Consequently, connected petition is closed.
sbi
To
The Principal District Munsif,
Ambur