{"id":148915,"date":"2002-09-18T00:00:00","date_gmt":"2002-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/lalitha-vs-k-shanthi-on-18-september-2002"},"modified":"2014-03-21T04:34:35","modified_gmt":"2014-03-20T23:04:35","slug":"lalitha-vs-k-shanthi-on-18-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/lalitha-vs-k-shanthi-on-18-september-2002","title":{"rendered":"Lalitha vs K.Shanthi on 18 September, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Lalitha vs K.Shanthi on 18 September, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 18\/09\/2002\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA\n\nC.R.P.NO.499 OF 2001\nAND\nC.M.P.NO.2724 OF 2001\n\n1. Lalitha\n2. Selvaraj\n3. Srinivasan                                           ..  Petitioners\n\n-Vs-\n\nK.Shanthi                                              ..  Respondent\n\n!For Petitioners        :: Mr.R.Subramanian\n\n^For Respondent         :: Mr.V.Raghavachari\n\n\nPrayer:  This Revision is preferred against the order dated 20-12-2000 made in\nI.A.No.117 of 2000 in O.S.No.505 of 1998 by the  I  Addl.    District  Munsif,\nDindigul.\n\n:ORDER\n<\/pre>\n
        The  challenge  in  this  Revision  is to the order of the Court below
\ndated 20-12-2000 made in I.A.No.117 of 2000 in O.S.No.505  of  1998f  ordering
\nthe amendment as prayer for by the respondent.\n<\/p>\n
        2.   Having  heard the learned counsel for the respective parties, the
\nbrief facts required for the disposal of the Revision are as under.\n<\/p>\n
        3.  The respondent filed a suit for permanent injunction  to  restrain
\nthe  petitioners  from interfering with the respondent’s right of enjoyment of
\nABCD marked common pathway in  the  suit  schedule  plan  by  putting  up  any
\nconstruction by way of encroachment.  The basis of the said claim as mentioned
\nin  the  plaint  in  para  4  was that the petitioners and the respondent were
\nenjoying the said pathway continuously as a right of easement by necessity  of
\nprescription.  The  said  suit  was  filed in the year 1998.  While so, by the
\npresent application filed in 20 00 i.e.   after  the  filing  of  the  written
\nstatement by the petitioners herein on 21-1-2000, the respondent sought for an
\namendment   for   addition  of  certain  averments  in  paragraph  4  and  for
\nconsequential amendments in the Court fee column and the prayer portion.\n<\/p>\n
        4.  The sum and substance of the amendment now sought for and  allowed
\nby  the  Court  below  was that the from time immemorial, the suit pathway was
\ndedicated to be used as a public street and therefore it should be declared as
\na public street and the injunction as originally prayed for should be  granted
\napart  from  issuing  a  mandatory injunction to remove unlawful constructions
\nmade by the petitioners during the pendency of the suit in  order  to  restore
\n‘B’ schedule pathway as a public street.  The said application was resisted by
\nthe  petitioners by contending that the whole attempt was to set up a new case
\non a different cause of action and if the same is permitted, that would  cause
\nirreparable loss and prejudice to the petitioners.\n<\/p>\n
        5.   According to the petitioners, the Court below, while ordering the
\napplication for amendment, failed to apply its  mind,  had  passed  a  cryptic
\norder without  assigning any reasons.  It was pointed out that there was total
\nnon-application of mind, inasmuch as, of the five judgments referred to by the
\nCourt below, stated to have been relied on by the respondent, in four  of  the
\ncitations, there was no such case as referred to by the Court below, while the
\nfifth  one had nothing to do with amendment of pleadings under Order 6 Rule 17
\nof C.P.C.  The learned counsel for the petitioner  relied  upon  the  judgment
\nrendered  by His Lordship Mr.Justice A.S.Venkatachalamoorthy, reported in 2002
\n(1 ) C.T.C.618 (PALANIAMMAL versus V.K.RAMANATHAN & 4 OTHERS),  wherein  after
\nelaborately   considering  the  legal  position  in  regard  to  amendment  of
\npleadings,  the  principles  have  been  summed  up  and  according   to   the
\npetitioners, principles 2 and 5 get attracted to the facts of this case.\n<\/p>\n
        6.  The learned counsel for the respondent would however, contend that
\nin  regard  to  the  applications  filed  under  Order  6  Rule 17 C.P.C., the
\nHonourable Supreme Court has held in the judgment reported in 2000 (1) SCC 712
\n(B.K.NARAYANA PILLAI versus PARAMESWARAN PILLAI) to the effect that-\n<\/p>\n
                “Liberal approach should be general rule particularly in cases
\nwhere the other side can be compensated with costs.    Technicalities  of  law
\nshould  not  be  permitted to hamper the administration of justice between the
\nparties and amendments are allowed in the pleadings to avoid  multiplicity  of
\nlitigation.”\n<\/p>\n
and therefore no interference is called for in this Revision.\n<\/p>\n
        7.   The  Court  below  without  going  into the rival contentions, by
\nmerely referring to the case laws relied upon by  either  side,  proceeded  to
\nallow the application by stating that the present claim of the respondent that
\nthe  suit  pathway  is  a  public  street is to be established by her and that
\nwhether such a claim can be made only in a representative capacity can be gone
\ninto only at the time of trial.\n<\/p>\n
        8.  I am afraid that such  a  conclusion  of  the  Court  below  while
\ndealing with  an  application  under Order 6 Rule 17 C.P.C.  can be sustained.
\nThe relevent principles while dealing with the applications filed under  Order
\n6 Rule  17  C.P.C.  have been repeatedly set out and inasmuch as, His Lordship
\nMr.Justice  A.S.Venkatachalamoorthy  has  elaborately  dealt  with  the   said
\nquestion  in  the judgment referred to earlier, namely, in the one reported in
\n2002(1) C.T.C.618, wherein, the learned Judge has taken pains to refer to  all
\nthe  earlier case laws before summing up the principles to be considered in an
\napplication filed under Order 6 Rule 17  C.P.C.,  I  feel  that  it  would  be
\nsuffice if those principles are extracted for our present purpose.
\n“16.  To sum up the legal position,
\n        (1)  The  power  to allow amendment is wide and hence the Court should
\nnot adopt hyper technical approach but on  the  other  hand  liberal  approach
\nshould  be  the general rule particularly in cases where the other side can be
\ncompensated with costs.\n<\/p>\n
        (2) The general rule is that the party is not allowed to  set  up  new
\ncase or new cause of action.\n<\/p>\n
        (3)  Technicalities  of  law  should  not  be  permitted to hamper the
\nadministration of justice between the parties and amendments  are  allowed  in
\nthe pleadings to avoid multiplicity of litigation.\n<\/p>\n
        (4)  Courts  cannot  go  into  the  truth  or  falsity of the proposed
\namendments  sought  for  at  the  time  of  considering  the  application  for
\namendment.\n<\/p>\n
        (5)  All  amendments  of  the  pleadings  should  be allowed which are
\nnecessary for determination of the real controversies in the suit provided the
\nproposed amendment does not alter or substitute a new cause of action one  the
\nbasis of which the original lis was raised or defence taken.\n<\/p>\n
        (6)  All reliefs ancillary to main relief and reliefs which are in the
\nnature of additional reliefs should be allowed as general rule.\n<\/p>\n
        (7) Even if a party or its counsel is inefficient in setting  out  its
\ncase initially the shortcoming can certainly be removed but however, the party
\nwho is  put  to  inconvenience should be suitably paid.  The Court has to only
\nsee that the error is not incapable of being rectified  so  long  as  remedial
\nsteps do not unjustifiably injure rights accrued.\n<\/p>\n
        (8)  The  delay  in  filing  petition for amendment should be properly
\ncompensated by cost and the error or mistake, if not fraudulent, should not be
\nmade a ground for rejecting the application for amendment of plaint or written
\nstatement.\n<\/p>\n
        9.  However, on a perusal of one other judgment  referred  to  by  the
\nlearned  counsel  for  the  petitioner reported in 1999 (3) L.W.885 ( GURUSAMY
\nGOUNDER versus MUTHUSAMY GOUNDER AND PALANISAMY), I am of the view that  there
\nis one other relevant principle which will also have an equal importance in an
\napplication to  be dealt under Order 6 Rule 17 C.P.C.  In fact, that principle
\nhas been settled by the Honourable Supreme Court in 1998 (1) SCC 278  (HERALAL
\nversus  KALYAN  MAL),  where again, the Honourable Supreme Court relied upon a
\nthree Judges Bench judgment of the Honourable Supreme Court reported  in  1976
\n(4) SCC  320 ( MODI SPINNING & MANUFACTURING MILLS CO.LTD.  Versus LADHA RAM &
\nCO.).  In para 9 of the Judgment reported in 1998(1) SCC 278, the  proposition
\nhas been set out as under:\n<\/p>\n
        “…..  This decision of a Bench of three learned Judges of this Court
\nis  a  clear  authority  for  the  proposition that once the written statement
\ncontains an admission in favour of the plaintiff, by amendment such  admission
\nof  the  defendants cannot be allowed to be withdrawn if such withdrawal would
\namount to totally displacing the case of the plaintiff and which  would  cause
\nhim irretrievable prejudice.  ….” ( Emphasis applied)<\/p>\n
        10.   In the Judgment of the Honourable Supreme Court reported in 2000
\n(1) SCC 712 (B.K.NARAYANA PILLAI versus PARAMESWARAN PILLAI), it has been held
\nthat the principles applicable to the amendments of the plaint are  applicable
\nto the  amendments of the written statement.  The Honourable Supreme Court has
\nstated the legal position as under in para 4.\n<\/p>\n
        “4.  …..  All amendments should be allowed which are  necessary  for
\ndetermination  of  the  real  controversies  in the suit provided the proposed
\namendment does not alter or substitute a new cause of action on the  basis  of
\nwhich, the  original  lis  was  raised  or  defence  taken.   Inconsistent and
\ncontradictory allegations in negation to the admitted  position  of  facts  or
\nmutually  destructive  allegations  of  facts  should  not  be  allowed  to be
\nincorporated by means of amendment to the pleadings.  The  proposed  amendment
\nshould  not cause such prejudice to the other side which cannot be compensated
\nby costs.  …”\n<\/p>\n
                (Emphasis applied).\n<\/p>\n
        11.  I am therefore of the view that of the various principles set out
\nby His Lordship Mr.Justice A.S.Venkatachalamoorthy in para 16 of the  judgment
\nreported in  2002  (1)  C.T.C.   618, one more principle could be added to the
\neffect that once the pleadings contained an admission in favour of  the  other
\nside,  by  amendment, such admission cannot be allowed to be withdrawn if such
\nwithdrawal would amount to totally displacing the case of the other  side  and
\nwhich would cause irretrievable prejudice to him, especially such amendment is
\nsought  for based on inconsistent and contradictory allegations in negation to
\nthe admitted position of facts or mutually destructive allegations of facts.\n<\/p>\n
        12.  Keeping in mind  the  above  stated  principles  in  relation  to
\napplications  filed  under  Order  6  Rule 17 C.P.C., when the case on hand is
\nconsidered, while the respondent originally approached the Court below with  a
\nplea  that the suit pathway was in the enjoyment of the petitioners as well as
\nthe respondent in common from time immemorial  which  prescribed  a  right  in
\nfavour of the respondent on the principle of right of easement by necessity of
\nprescription, by seeking for an amendment in addition to the existing claim as
\nabove,  the  respondent  wants  to  contend  that the suit pathway was already
\ndedicated for the public at large to be used as a public street and  therefore
\nit should  be  declared as such.  The amendment in the pleadings as well as in
\nthe prayer of the plaint was sought for in addition to the existing  claim  of
\nthe   respondent  for  a  prayer  for  permanent  injunction  as  against  the
\npetitioners.  Therefore, while on the one hand, the respondent contended  that
\nthe  suit pathway was a common pathway in the enjoyment of the petitioners and
\nthe respondent for their exclusive use, the respondent wants  to  now  contend
\nthat  apart  from  the  said  position, it should also be declared as a public
\nstreet meant for usage of the public at large.\n<\/p>\n
        13.  When such a claim is considered, as rightly  contended  by  Mr.R.
\nSubramanian,  learned  counsel  appearing for the petitioners, in my view, the
\nsaid claim  if  to  be  ultimately  granted,  will  involve  consideration  of
\ninconsistent prayers.    It  is  not  the case of the respondent that the suit
\npathway which  was  earlier  claimed  as  a  common  pathway  as  between  the
\npetitioners and the respondent, should now be declared as a public street.  On
\nthe  other hand, the respondent while retaining her earlier claim of exclusive
\ncommon right over the pathway as between the petitioners and  the  respondent,
\nwants to  now  contend that it should also be declared as a public street.  If
\nthe present plea of the respondent that she should be permitted to  raise  her
\nclaim  that  the suit pathway should also be declared as a public street, then
\nher earlier claim on the footing that  as  between  the  petitioners  and  the
\nrespondent,  it  was  common  ground that the suit pathway was in their common
\nenjoyment from time immemorial would automatically stand withdrawn.  Certainly
\nif such a consequence is to result in by virtue of the  amendment  now  sought
\nfor  and  ordered by the Court below, the principles set out by the Honourable
\nSupreme Court in the judgments reported in 1998(1) SCC  278  (HEERALAL  versus
\nKALYAN  MAL)  gets  attracted  and  the  withdrawal  of  earlier  stand of the
\nrespondent would certainly cause serious and irretrievable  prejudice  to  the
\npetitioners.  I am of the view that such a situation cannot be allowed to take
\nplace.   Certainly, in my view, the original plea of the respondent in respect
\nof the schedule pathway as a right of easement by  necessity  of  prescription
\ncannot  stand,  the moment the respondent seeks for an amendment to the effect
\nthat the said suit pathway should also be declared as a public street.  Such a
\nstand of the respondent can only be characterized as totally  inconsistent  in
\nits  existence  and  would  be  hit by one of the principles in relation to an
\namendment application to be considered under Order 6 Rule 17 C.P.C.\n<\/p>\n
        14.  For the very same reason, it will have to be  held  that  such  a
\nplea  for  amendment  claimed  and  ordered by the Court below would result in
\nsetting up of a new case on a new cause of action which is not permissible  in
\nan application  filed for amendment under Order 6 Rule 17 C.P.C.  Moreover, as
\nrightly  contended  by  the  learned  counsel  for  the  petitioners,  if  the
\nrespondent’s present plea that the suit path way is to be declared as a public
\nstreet,  then  the  suit  itself  should  have  been filed in a representative
\ncapacity and admittedly such is not the case here.\n<\/p>\n
        15.  Therefore, looked at from any angle,  I  am  convinced  that  the
\nrespondent  miserably  failed to make out a case for amendment within the four
\ncorners of the provision contained in Order 6 Rule 17 C.P.C.  and the order of
\nthe Court below in not considering the above vital aspects before ordering the
\nsaid application vitiates its order and the same cannot be allowed  to  stand.
\nThe, C.R.P.    therefore  stands  allowed  and  the  order  of the Court below
\nimpugned herein is set aside.  No costs.  Consequently, C.M.P.  is closed.\n<\/p>\n
18-09-2002
\nIndex:  Yes\/No
\nInternet :  Yes\/No
\nsuk<\/p>\n
To
\nThe I Addl.District Musnif,
\nDindigul.\n<\/p>\n
F.M.IBRAHIM KALIFULLA, J.\n<\/p>\n
suk<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Lalitha vs K.Shanthi on 18 September, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18\/09\/2002 CORAM THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA C.R.P.NO.499 OF 2001 AND C.M.P.NO.2724 OF 2001 1. Lalitha 2. Selvaraj 3. Srinivasan .. Petitioners -Vs- K.Shanthi .. Respondent !For Petitioners :: Mr.R.Subramanian ^For Respondent :: Mr.V.Raghavachari Prayer: This […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-148915","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nLalitha vs K.Shanthi on 18 September, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/lalitha-vs-k-shanthi-on-18-september-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Lalitha vs K.Shanthi on 18 September, 2002 - 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