IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.01.2010
Coram
The Honourable Mr. Justice M.JEYAPAUL
C.R.P.(PD) No.2684 of 2009 and M.P.No.1 of 2009
S.Rajendran ... Petitioner
Vs.
1. K.Kanniah
2. V.Sivaraj
3. S.Selvaraj
4. Suganya
5. K.Sethuraman
6. K.Kumar
7. P.V.Selvam ... Respondents
This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 31.07.2009 passed by the Principal District Munsif Court, Alandur in I.A.No.907 of 2009 in O.S.No.515 of 2006.
For Petitioner : Mr.T.V.Ramanujam
Senior counsel for
Mr.T.V.Krishnamachari
For Respondents : Mr.J.Sudhakaran
1, 4 to 6
For Respondents : No appearance
2, 3 and 7
*****
O R D E R
The plaintiff is the revision petitioner before this Court.
2. The plaintiff filed a petition seeking permission to amend the plaint as per the particulars furnished in the petition. The said petition was dismissed by the trial court. Hence, the present Civil Revision petition filed by the plaintiff.
3. The suit is one for declaration that the deed of revocation dated 20.02.1998 executed by the third defendant is null and void and not binding upon the plaintiff. A further declaration has also been sought for by the plaintiff that the Power of Attorney dated 20.02.1998 executed by the third defendant in favour of the fourth defendant, the sale deed dated 25.03.1998 executed by the fourth defendant in favour of the fifth defendant and the Power of Attorney dated 04.01.1999 executed by the fifth defendant in favour of the sixth defendant are null and void and not binding upon the plaintiff. An order of permanent injunction has also been sought for as against the first defendant and the defendants 3 to 6 to restrain them from dealing with the suit property.
4. The plaintiff having alleged in the petition that the first defendant along with the defendants 3 to 6 have illegally and unlawfully trespassed into the suit property and made illegal constriction over there during pendency of the suit, sought to introduce a prayer for mandatory injunction directing the defendants 1, 3 to 6 to demolish and remove all kinds of encroachments and illegal construction put up by them over the suit property.
5. The said petition was resisted by the defendants 1, 4 to 6 on the ground that the amendment petition filed belatedly is not maintainable as per the proviso to Order 6 Rule 17 C.P.C. Though the defendants have specifically brought to the notice of the plaintiff about the construction they had already put up in the counter affidavit filed in I.A.No.2672 of 2007, the plaintiff without exercising any diligence has come out with the petition seeking amendment after commencement of trial quite against the spirit of Order 6 Rule 17 C.P.C. Alleging that much prejudice will be caused if such an amendment at this distance of time is permitted, the respondents herein seek for dismissal of the revision petition.
6. The trial court in its elaborate order having discussed the fact that the plaintiff was specifically brought to his notice long prior to the commencement of the trial about the construction put up by the respondents, has observed that with the petition for amendment has been filed belatedly. Referring to the Proviso found under Order 6 Rule 17 of C.P.C., the trial court held that the revision petitioner/plaintiff is not entitled to maintain the petition when he had knowledge about the building constructed in the suit property by the respondents long prior to the commencement of the trial.
7. Mr.T.V.Ramanujam, the learned Senior counsel appearing for the revision petitioner/plaintiff would submit that the written statement itself was filed only on 25.11.2008. The attempt made by the respondents to obtain electricity service connection was brought to the notice of the trial court by way of filing necessary petition seeking to restrain them from getting service connection to the construction put up by them in the suit property. Thereafter, the present petition was filed of course after the trial commenced in the month of July 2009 seeking amendment by the plaintiff introducing a prayer for mandatory injunction. It is submitted that no prejudice will be caused to the respondents if such an amendment is allowed and no injustice will also be caused to the respondents if the amendment sought for by the plaintiff is permitted. It is his further submission that dismissal of the petition seeking a prayer for amendment would definitely lead to multiplicity of proceedings.
8. The learned counsel appearing for the respondents drawing the attention of this court specifically to the proviso found under Order 6 Rule 17 C.P.C. would submit that unless the party who seeks to introduce an amendment establishes before the court that inspite of the diligent efforts taken by him the amendment petition could not be filed before the commencement of trial, the application seeking amendment cannot be entertained after commencement of trial. It is his further submission that the respondents have specifically brought to the notice of the revision petitioner the fact that they had put up a superstructure in the suit property in the interlocutory application filed by the revision petitioner. Having allowed the trial to go-on, the revision petitioner has now come forward with the petition seeking amendment. Nothing has been pleaded by the revision petitioner that he could not file a petition for amendment inspite of his diligence before the commencement of trial. Therefore, he would submit that the present petition filed against the spirit of the provisions of law is not sustainable.
9. The main provision under Order 6 Rule 17 C.P.C. would of course state that the court at any stage of the proceedings may entertain an application seeking amendment of the pleadings if the Court finds that those amendments are very much necessary for the purpose of determining the real issues in controversy between the parties. There is a Proviso found under Order 6 Rule 17 C.P.C. as per the substitution made by Act 22 of 2002 with effect from 01.07.2002. The said proviso would read that such an application seeking amendment shall not be entertained after the trial has commenced. There is also a rider thereunder that if the court comes to the conclusion that the party inspite of due diligence could not come out with such a petition seeking amendment prior to the commencement of trial, such an application for amendment can be entertained by the Court.
10. The Honourable Supreme Court in Peethani Suryanarayana and another Vs Repaka Venakta Ramana Kishore and others, (2009)11 Supreme Court Cases 308 has held as follows:
“The power of the court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the court is circumscribed by two factors viz., (i) the application must be bonafide; (ii) the same should not cause injustice to the other side; and (iii) it should not affect the right already accrued to the defendants.”
The aforesaid ratio would apply to the pre-amendment situation where the court had ample power without any rider to allow, an application for amendment if the court comes to the decision that such an amendment would be necessary for determining the controversial issues involved in the suit. The applicant should have approached the Court with bonafide; the other side also should not face any injustice on account of entertainment of such application. A right accrued to the other side should also not be affected. These broad factors circumscribed by the Honourable Supreme Court in the aforesaid ratio would apply to the pre-amendment scenario.
11. The Honourable Supreme Court in North Eastern Railway Administration, Gorakhpur Vs Bhagwan Das (dead) by Lrs., (2008) 8 Supreme Court Cases 511 has held as follows:
” Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil V. Kalgonda Shidgonda Patil which still holds the filed, it was held that all amendments ought to be allowed which satisfy the two conditions; (a) of not working injustice to the other side, an (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 costs. (Also see Gajanam Jaikishan Joshi V. Prabhakar Mohanlal Kalwar).
The aforesaid ratio would also apply only to the application filed for amendment prior to the amendment introduced in the year 2002 to C.P.C.
12. The Honourable Supreme Court in Rajkumar Gurawara (Dead) through L.Rs. Vs S.K.Sarwagi & Co. Pvt. Ltd. and another, 2008(5) C.T.C. 253 has held that after commencement of trial the question of prejudice to opposite party may arise and in such event it is incumbent on the part of Court to satisfy conditions prescribed in Proviso to Rule 17. The pre-trial amendments are to be allowed liberally than those that are sought to be made after the commencement of trial.
13. This Court in D.Ramanujam Vs R.Panneerselvam reported in 2006(3) C.T.C. 27 has held as follows:
“When the trial has already commenced, the present amendment petition was filed without giving any valid reason for not filing the amendment before the commencement of the trial. Even after the trial, the Court could not allow the Amendment petition unless the Court is satisfied that inspite of the due diligence, the party could not have raised the matter. In this case, the lower Court correctly applied the proviso and came to a correct conclusion that the plaintiff had not stated any reason in the Amendment petition for belated filing.”
Firstly, the party who comes forward with a petition seeking amendment of the pleading is bound to give valid reason for not filing the amendment petition before the commencement of trial. The Court also will have to address the point as to whether the party could have filed the petition seeking amendment, had the party taken due diligence while dealing with the amendment petition filed after the commencement of the trial. In short, Proviso under Order 6 Rule 17 C.P.C. will have to be strictly adhered to as otherwise, the Proviso found under the aforesaid provision of law will have no meaning at all.
14. The Honourable Supreme Court in Vidyabai and others Vs Padmalatha and another, (2009)2 Supreme Court cases 409 has held as follows:
“It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.”
It is true that the court has ample power to entertain a petition seeking amendment if it comes to a decision that the amendment is necessary to decide the real disputes arisen between the parties. But such a power given to the Court is circumscribed by the Proviso found under the aforesaid provision of law. The embargo found under the Proviso limits the large power found in the main Proviso under Order 6 Rule 17 C.P.C. Unless the Court records the existence of the contingency provided under the Proviso under Order 6 Rule 17 C.P.C., the petition for amendment after the commencement of trial cannot be entertained as per the aforesaid ratio laid down by the Honourable Supreme Court.
15. Coming to the facts and circumstances of this case, the Court finds that as rightly pointed out by the learned counsel appearing for the respondents nothing has been pleaded in the petition seeking amendment that the petitioner could not have moved the petition seeking amendment inspite of diligent efforts taken by him. The fact remains that as early as in the month of December 2008, the revision petitioner was specifically brought to the notice that the construction was put up in the suit premises. True it is that the revision petitioner took some efforts to stall the process set in motion by the respondents to obtain service connection for the superstructure put up by them. Such an attempt initiated by the revision petitioner does not in any way bar him from filing a petition seeking amendment to introduce a prayer for mandatory injunction to demolish the superstructure admittedly put up by the respondents.
16. On fact, it is seen that the revision petitioner neither pleaded nor established that inspite of the diligent efforts, he could not have filed a petition before the commencement of the trial. Now, the fact remains that the suit has been posted for arguments after completion of evidence on either side. It has not been made out that the revision petitioner could not have filed the amendment petition inspite of diligent efforts prior to the commencement of the trial. Therefore, the revision petitioner cannot maintain the petition seeking amendment. The trial court has rightly analysed the point in issue in the background of Order 6 Rule 17 of C.P.C. and dismissed the petition seeking amendment. There is no infirmity in the order passed by the trial court.
16. Therefore, the Civil revision petition fails and stands dismissed. There is no order as to cost. Connected miscellaneous petition is also dismissed.
17. The observation made by the trial court with respect to the possession of the property during the disposal of the subject petition seeking amendment filed by the revision petitioner shall not weigh the mind of the trial court while disposing of the main case.
27.01.2010
Index : Yes/No
Internet: Yes/No
vaan
Note to Office: Issue order copy on 02.02.2010
To
ThePrincipal District Munsif, Alandur
M.JEYAPAUL, J.
vaan
C.R.P.(PD) No.2684 of 2009
and M.P.No.1 of 2009
27.01.2010