JUDGMENT
Prabha Sridevan, J.
1. This revision has been filed against the order refusing to allow the application for amendment on the ground that the application is time barred.
2. The counsel for the revision petitioner would submit that there is no question of delay inasmuch as amendment applications have been necessitated after the Division Bench of this Court had rendered its judgment in O.S.A.Nos. 250 and 251 of 1996 filed by the petitioner herein against the decree in the suit for specific performance filed by the first respondent and the decree in the suit for bare injunction filed by the petitioner. It is only in accordance with the findings therein that the applications have been filed. It was further submitted that the amendments sought to be introduced are in line with the existing pleadings and do not introduce a new case or a cause of action; nor are they belated. The learned counsel relied on the following judgments in support of his case :
B.K.N. Pillai v. P. Pillai, , Dondapati Narayana Reddy v. Duggireddy Venkatanarayana Reddy, ; K.S. Alagarsamy v. P. Natarajan, ; Muthammal v. Tamburati, ; Kalavathi v. Chitra, .
3. In the suit in which the present application has been filed, the petitioner, as plaintiff, has prayed for a declaration that the sale deed dated 13.12.1988 is null and void and for injunction and also accounts. In the plaint, he has pleaded that the suit property belongs to the Hindu Undivided Family, and that in 1977, his brother had executed a release deed in respect of his individual share and the respondents herein had accepted, without any bona fides, the Income Tax Clearance Certificate showing the property as individual property. In the proposed amendments, the petitioner seeks to introduce one paragraph to plead that the status of the suit property as Hindu Undivided Family property has been discussed by the Division Bench of this Court in O.S.A.Nos. 250 and 251 of 1996; and another paragraph with regard to the valuation of the suit for the purpose of jurisdiction; and yet another paragraph including the relief of a declaration that the Income Tax Clearance Certificate obtained by the respondents is not binding on the petitioner. According to the petitioner, for these amendments already there is basis in the pleadings as originally filed and therefore, the amendments, if introduced, will not in any way prejudice the rights of the respondents.
4. The learned Senior Counsel appearing for the respondents, on the other hand, would submit that this was nothing but an abuse of the process of law. The judgment in the O.S.As. was rendered on 28.2.1999, but the application had been filed in the year 2003, four years later. It was submitted that this revision petitioner is resorting to various tactics in order to thwart the attempts of the decree holder who had obtained a decree for specific performance in his favour, which has been confirmed by the Supreme Court. According to the learned Senior Counsel, the respondents had entered into an agreement of sale contemporaneously with the petitioner and his brother in respect of the undivided half share belonging to each of them in respect of the suit property. The execution of the documents had been admitted in evidence recorded in the suit, against which the above O.S.A. had been filed, and the consideration thereto had been received by the petitioner not only on behalf of himself, but also on behalf of his brother. Learned senior counsel would also submit that the question whether the property belonged separately to the petitioner and his brother or to the Hindu Undivided Family is immaterial since both of them had conveyed their respective shares, thereby conveying a valid title in respect of the entire property to the respondents herein. According to the learned senior counsel, having resisted the suit for specific performance, and having met with failure, the petitioner is trying to postpone the inevitable by filing this petition. Learned Senior Counsel pleads that this amendment should not be allowed, since ex facie the amendment sought to be introduced merits rejection.
5. As against this, it is pleaded on behalf of the respondents that there is no controversy with regard to the sale agreement since in his evidence recorded in C.S. No. 1586 of 1988, one of the suits against which the above O.S.A. had been filed, the petitioner had admitted that the sale agreement is in his handwriting, that his brother also entered into a similar agreement on the same day and that the petitioner had assured the first respondent, who is the purchaser, that he would obtain the income tax clearance and that he had received the sale consideration. It must, however, be noted that in the O.S. Appeals, the learned judges had left open the question relating to the validity of the release deed. The evidence and the findings in the O.S. Appeals are matter of record. But, at this stage, viz. where the Court is called upon to grant permission to amend the plaint, the merits of the amendments cannot be decided. It is only at the time of the trial that the Court can consider, on the basis of the pleadings and the evidence, whether the petitioner has proved his case.
6. In the decisions referred to by the learned counsel for the petitioner, it has been uniformly held that Courts should take a liberal approach while considering applications for amendment of pleadings, that a hyper technical approach shall not be adopted and that unless grievous injury will be caused to the other side or unless any right has subsequently accrued to the other side, which would be taken away by the amendment, normally amendments should be allowed. In the above decisions, it has also been held that if the party seeking amendment has come belatedly, then he may be put on terms.
7. The Court below has rejected the application on the ground that it is time barred. It is always open to the respondents herein to raise objections regarding the issue of limitation and the same shall be considered along with the other issues. But, on this ground, the application for amendment cannot be rejected. The impugned order indicates that this is the only ground on which the application has been rejected.
8. Therefore, the amendment sought for must be ordered, giving the respondents leave to file an additional written statement raising the points of defence available to the respondents. However, it must be noted that the petitioner is guilty of delay. The suit is of the year 1989. The O.S. Appeals were disposed of in the year 1990 and even the writ petition filed by the petitioner, in which the petitioner was granted the relief of having the release deed registered, was ordered in the year 1991. I am, therefore, of the opinion that the amendment shall be ordered on terms.
9. The civil revision petition is allowed on condition that the petitioner pays to the first respondent a sum of Rs. 7,000 (Rupees seven thousand only) within a period of two weeks from this date, failing which the civil revision petition shall stand dismissed. The XVI Judge, City Civil Court, Chennai is also directed to dispose of O.S. No. 4602 of 1989 on or before 3.12.2004. Consequently, C.M.P. No. 13460 of 2003 is closed.