This Civil Revision Petition is filed by the first defendant against the order passed by the learned Additional Subordinate Judge, Tenkasi in I.A.No.95 of 2006 in O.S.No.45 of 2002 dated 21.12.2006.
2. The background facts need to be noted in brief are as follows: The respondent has filed the suit for specific performance of contract in O.S.No.45 of 2002 on the file of the Sub Court, Tenkasi against the petitioner/1st defendant and his brothers who are defendants 2 to 4 in the suit on an agreement of sale dated 29.01.2001 and for arrears of rent. The defendants inter alia contended that the said agreement of sale is only a security arrangement for the loan obtained by them from the respondent/plaintiff and denied the execution of rental agreement as well. After settlement of issues, the trial had commenced and the respondent's husband by name Shanmughavel has filed the proof affidavit and the case has been posted for cross examination of the plaintiff's witness. At that stage the petitioner/1st defendant has filed an application in I.A.No.95 of 2006 to amend the written statement filed by them and to include the earlier transaction between the defendant and the plaintiff's husband. The sum and substance of the amendment sought for is given below.
3. That the respondent's husband Shanmughavel had given a loan of Rs.1,00,000/- (Rupees One Lakh Only) to the defendants and obtained a similar document styled as agreement of sale and as the defendants were unable to pay the interest, he cancelled the said document and obtained a fresh sale agreement and rental agreement in the name of his wife based on which the present suit is filed.
4. The trial Court dismissed the said petition on the ground that the same is filed belatedly and further no reason assigned in the application for amendment to the effect that in spite of due diligence the said matter could not be raised by the petitioner. Incidentally, the trial Court has referred to the ex-parte decree passed against the defendants on two occasions and held that this application is filed only to delay the proceedings. Aggrieved against the same, the present Civil Revision Petition has been filed by the petitioner/1st defendant.
5. Mr.T.S.R.Venkatramana, learned counsel for the petitioner submitted that the defence even in the original written statement was that the agreement of sale was executed only as a security arrangement and it is not a transaction of agreement of sale. He would contend that in order to substantiate the said plea additional facts were sought to be incorporated by way of amendment to show the modus operandi of the respondent/plaintiff and her husband who has got the agreement of sale in the name of plaintiff's husband and after cancelling it, obtained a fresh sale agreement in the name of the plaintiff. He would further contend that by allowing the amendment, the nature and character of the defence does not change and rejection of the said amendment would only amount to denial of opportunity and violative of principle of natural justice.
6. The learned counsel for the petitioner referred to the principle enunciated by the Full Bench of this Court governing amendment of pleading reported in Hi Sheet Industries, a partnership firm, carrying on business at 61-D, D.V.Road, Ambur Town, Vellore District Vs. Litelon Ltd., having its office at No.68, Sipcot Industrial Complex, Hosur, rep. by its Managing Partner, S.Gokul and others (2006 (5) CTC 609). The Full Bench of this Court after referring to various decision in this regard has held thus: "Oldest Golden Case Law and Modern Case Law on interpretation of law relating to amendment states that amendments of pleadings can be allowed at any stage of proceedings provided it is even such amendment is barred by time only factors to be taken consideration are: a) As to whether amendment should be allowed or not; b)when it does not affect cause of action; c) it does not introduced new cause of action; d) it would not cause serious prejudice to opposite party; and e) when such amendment is required prejudice to opposite - plea that amendment is barred by limitation is also not ground for rejecting amendment."
7. In the same decision the Full Bench has emphazised that while considering the proviso to Order 6 Rule 17 CPC, the Court should not forget its unfettered discretion to allow the amendment after applying the judicial discretion provided that if there is no negligence on the part of the party seeking amendment (emphasis supplied).
8. The learned counsel for the petitioner also drew the attention of this Court to the decision reported in Usha Balashaheb Swami & others Vs. Kiran Appaso Swami & others (2007 (5) SCC 602) in support of his contention that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can be allowed as long as the amended pleading do not result in causing grave injustice and irretrievable prejudice to the plaintiff or disabling him completely.
9. On the other hand, Mr.K.Srinivasan, learned counsel for the respondent contended that the defendants were not entitled to set up such conflicting cases as the proposed amendment would change the very complexion of the defence. He further contended that under the proviso to Order 6 Rule 17 of the Civil Procedure Code as substituted in 2002, no application for amendment should be allowed after the commencement of the trial, unless the court comes to the conclusion that inspite of due diligence, the party could not raise the matter earlier. He would place reliance on the decision of the Hon'ble Supreme Court reported in the case of Ajendraprasadhi N. Pandey and another Vs. Swami Keshavprakeshdasji N. and others (2006 (12) SCC 1), a passage has been extracted hereunder for ready reference:
No facts were pleaded nor were any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence those matters could not be raised by the appellants. Under these circumstances, the case is covered by the proviso to Rule 17 of Order 6 and, therefore, relief deserves to be denied.
A mere averment in the amendment application that the same "could not be submitted before the court in spite of utmost care taken by the defendant applicants" does not satisfy the requirement of Order 6 Rule 17 without giving the particulars which would satisfy the requirement of law that the matters now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence. The trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. In the impugned order the appellants have admitted that all the issues raised by way of proposed amendment in the written statement were taken before the Supreme Court in the appeal from order filed by the present defendants in the civil appeal filed before the Supreme Court and again in the special leave petition filed subsequently. As rightly pointed out by respondent 2, any section should not be so interpreted that part of it becomes otiose and meaningless and very often a proviso itself is read as a substantive provision it has to be given full effect.
10. A three-Judge Bench of the Hon'ble Supreme Court speaking through Ray, C.J. in Modi Spg. & Wvg. Mills Co. Ltd., Vs. Ladha Ram & Co. opined: (SCC P.321, para 10) has held thus:-
"10.It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court."
11. This Court in the case of D.Ramanujam Vs. R.Panneerselvam (2006 (3) LW 141) has held that when the trial has already commenced, the present amendment petition filed without giving any valid reason for not filing the amendment before the Commencement of the trial and even after the trial, the Court cannot allow the amendment petition unless the court is satisfied that inspite of due diligence, the party cannot raise the matter.
12. In yet another decision reported in Kamatchi Ammal Vs. Lakshmanan (2006 (4) CTC 135), this Court has reiterated that if the amendment sought by way of additional written statement would result in putting inconsistent or alternative plea that would displace plaintiff's case and cause him irretrievable prejudice cannot be allowed.
13. In R.S.Nagarajan Vs. R.S.Gopalan and others (2007 (1) CTC 586), this Court has held that the defendant cannot introduce new case or mutually destructive pleas by way of additional written statement.
14. In the present case, it is relevant to refer to certain facts for better appreciation. The suit has been posted for trial on 03.03.2004 and the plaintiff's husband has filed the proof affidavit on 04.03.2004 and since, the counsel for the defendants have reported no instructions, the suit has been decreed ex-parte. Subsequently, the petitioners have filed an application in I.A.No.34 of 2006 and the ex-parte decree has been set aside on 05.06.2006. At request by the defendants, the case has been posted to 17.07.2006 for cross examination of plaintiff's witness and again on 18.07.2006, the defendants failed to appear and hence, an ex-parte decree has been passed for the second time. Thereafter, an application has been filed by the defendants in I.A.No.86 of 2006 and the ex-parte decree has been set aside and the case had been posted to various dates and finally on 18.10.2006. On the said date, the petitioners have come forward with this application.
15. When the trial has already commenced the present amendment petition has been filed without giving any valid reason for not filing the amendment before the commencement of the trial. In the affidavit filed in support of the petition for amendment, it is merely stated that they have omitted to mention the said details by inadvertence and it is not wilful or wanton. The various dates of hearing with reference to the proceedings taken before the Court which has been elaborately spelt out by the trial Court would show that they were lacking in bonafides in filing the said amendment petition.
16. After the commencement of trial, the Court cannot allow the amendment petition unless the Court is satisfied that inspite of the due diligence the parties could not raise the matter. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence those matter could not be raised by the petitioners. It is apparent that the said matters were well within their knowledge and the amendment sought at the belated stage that too when the trial has commenced and prior to that, the suit has been allowed to be decreed ex- parte twice, certainly the grant of amendment would cause serious prejudice to the contesting respondent/plaintiff and hence, it is in the interest of justice that the amendment sought for has to be denied. In this case, the trial Court has correctly applied the proviso to Order 6 Rule 17 of CPC and had come to a correct conclusion that the defendants have not stated any reason in the amendment petition for belated filing.
17. In the foregoing reasons, this Court is of the view that there is no error or infirmity in the order of the lower Court. Also, there is no improper exercise of discretion in dismissal of the amendment petition and hence, the order does not require interference.
18. In the result, the Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. There shall be no orders as to costs.
SRCM To The Additional Subordinate Judge, Tenkasi.