The revision petitioners/respondents/appellants 1 and 2 have preferred this civil revision petition as against the order dated 16.04.2009 in I.A.No.17 of 2009 in A.S.No.92 of 1998 passed by the Learned Principal District Judge, Salem in allowing the application filed by the respondent/petitioner/plaintiff under Order 6 Rule 17 of Civil Procedure Code praying for issuance of an order to amend the plaint.
2.The Learned Principal District Judge, Salem while passing orders in I.A.No.17 of 2009 on 16.04.2009 has inter-alia opined that 'the plaintiff claims right of easement for white washing the Southern wall by using the land of the defendants. Therefore, the amendment of plaint seeking relief of declaration that Southern wall belongs to the plaintiff, and also to amend the plaint to add 'C' schedule property over which easement right is claimed are necessary. The plaintiff is also allowed to amend the plaint to add additional pleading regarding the right of easement for the purpose of repairing, white washing and maintaining the Southern wall' and resultantly allowed the application.
3.According to the learned counsel for the revision petitioners/appellants 1 and 2, the Learned Principal District, Judge, Salem while allowing I.A.No.17 of 2009 has not taken into account of the fact that the amendments sought for by the respondent/plaintiff are altering the very nature and character of the suit and further the impugned order in I.A.No.17 of 2009 suffers from material irregularity and patent illegality in the eye of law and as a matter of fact, the amendments claimed by the respondent/plaintiff will introduce new pleas of custom, which are beyond the scope of the suit and this Court while allowing S.A.No.112 of 2002 by its judgment dated 28.08.2008 has remanded the A.S.No.92 of 1998 to the file of the Learned Principal District Judge, Salem for fresh disposal in accordance with law and as a matter of fact, the High Court has not expressed any opinion in regard to the ownership of the schedule mentioned property and indeed the amendments sought for by the plaintiff have been already available at the time of filing of the suit and the 'Doctrine of Selection' has been left by the respondent/plaintiff and therefore the amendments cannot be permitted in law and in any event, the impugned order in I.A.No.17 of 2009 in A.S.No.92 of 1998 has to be set aside by this Court sitting in revision and therefore prays for allowing the civil revision petition in the interest of justice.
4.The learned counsel for the revision petitioners/appellants 1 and 2 submits that after the amendment to Civil Procedure Code, it has come into force on 1.7.2002, no amendment of plaint can be allowed after commencement of trial unless the Court comes to the conclusion in spite of the due diligence, the plaintiff could not have raised the pleas before commencement of trial and to lend support to his contention, he relies on the decision in P.SUBBA NAICKER VS. VELUCHAMY NAICKER AND THREE OTHERS (2004 (2) CTC 742 ) wherein it is observed as follows:
"Though it is contended that the proposed amendment in the plaint will not alter the cause of action or introduce a new plea, as rightly objected by the respondents, the petitioner cannot be allowed to claim both ownership and a right of easement. This aspect was rightly considered and rejected by the learned District Munsif, I am in agreement with the said conclusion and there is no ground for interference.
Apart from the above factual details, it is to be noted that after the Amendment Act.2002 (Which came into force with effect from 1.7.2002, no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Admittedly, the petition for amendment-I.A.681/2003 was filed only on 30.6.2003 i.e., well after the amendment Act,2002. As a matter of fat, only when P.W.1 was in the witness box, the plaintiff thought of filing petition for amendment and filed the same on 30.6.2003. In the light of the proviso to Rule 17 of Order 6 of the Code of Civil Procedure and of the fact that the petitioner has not satisfied the Court that he is entitled to file such a petition even after the commencement of the trial, as rightly argued by the learned counsel for the respondent, the application for amendment is liable to be rejected. Even otherwise, I am satisfied with the reasoning of the learned District Munsif in dismissing the application for amendment.
5.In the light of what is stated above, I do not find any error or infirmity in the order impugned for interference: accordingly the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, C.M.P.No.17255 of 2003 is closed".
5. He also cites the decision in KRISHNARU AND ANOTHER VS. INCORPORATE AND UNINCORPORATED DEVASWAMS, SUCHINDRAM, REPRESENTED BY THE DEPUTY COMMISSIONER/EXECUTIVE OFFICER, SUCHINDNRAM, KANYAKUMAIR DISTRICT ((2005)4 M.L.J.270) wherein it is held that 'an amendment to a written statement can be allowed even at the appellate stage, if the proposed amendment does not introduce a totally new plea'.
6.Also, the leaned counsel for the revision petitioners seeks in aid of the decision in THIRU ALANKADU IMMUDI AHORA DHARMA SIVCHARIAR AIYRA VAISYA MADAM, NERINCHIPETTAI, BHAVANI TALUK, ERODE DISTRICT VS. UDUMALPET SAMAYAPURAM ARIYA VAISYA SANGAM, REP. BY ITS PRESIDENT NO.5, NELLUKADAI STREET, UODUMALPETTAI, COIMBATORE DISTRICT (2005(4) CTC 664) whereby and whereunder it is held that 'in cases where amendment is after commencement of trial or conclusion of trial, Court should answer with reference to facts and circumstances of each individual case, no absolute rule that in every case where relief is barred, amendment should not be allowed discretion vested with Courts to be exercised on judicious evaluation of facts and circumstances of the case and to sub-serve ultimate cause of justice or avoid further litigation; when there is dispute as to bar of limitation, amendment sought could not be declined as it could be made subject matter of issue after allowing amendment.'
7.Added further, on the side of the revision petitioners, it is brought to the notice of this Court that the Hon'ble Supreme Court in FRITIZ T.M. CLEMENT AND ANOTHER VS. SUDHAKARAN NADAR AND ANOTHER (2002 (1) CTC 695) as among other things observed as follows:
"There is a bare reference to the Agreement which is the foundation of appellant's claim. Not only that, the basic terms of the Agreement are not accurately stated in the original plaint. Even the specific date of the Agreement dated 12.07.1987 (which is the basis of the claim in the suit) has bot been mentioned; instead only year is mentioned. All this would lend credence to the appellant's contention that sufficient care was not taken in drafting the plaint. The party shall not be penalized for that reason. It is significant to note that the said Agreement between the appellant-plaintiffs and the 1st Respondent/1st defendant entered into on 12.07.1987 is an undisputed document, as is evident from the written statement. What are the rights and obligations under the said Agreement and whether the terms of the Agreement have been violated by the defendants and whether the appellants have legally enforceable claim based on the Agreement could be the matters of controversy in the suit. But, as already observed, most of the averments barring those pertaining to the relief portion centre round the undisputed Agreement. In one of the paragraphs, an earlier Agreement dated 05.09.1972 allegedly entered into between plaintiff's father and one Enose Nadar has been referred to, but it was only to furnish the background for the Agreement dated 12.07.1987"
and held that 'most of the amendments pertain to undisputed agreement and mere fact that in regard to quantification of claim, certain changes are sought to be made by an amendment, without changing total amount claimed in original pliant does not mean that nature of relief claimed has undergone material change and rejection of petition for amendment is unjustified and further that no prejudice is caused by an amendment and rejecting such amendment will result in miscarriage of justice and the amendment states the case of plaintiff clearly and the defendant will be in a better position to know exact case of the plaintiff and that petition for amendment of plaint is allowed, however the plaintiff is put on terms in view of the latches directed to pay Rs.2,000/- as costs'.
8.Moreover, the revision petitioners relies on the decision of this Court in S.RAMAKRISHNAN VS. R.M. SUBBIAH AND OTHERS (2004 (4) CTC 95) wherein it is held that 'While considering application for amendment of pleadings, hyper technical approach shall not be adopted and normally such application must be allowed unless injury will be caused to other side or allowing such application would take away right accrued to other side and if a party seeking amendment has comes belatedly he may be put on terms and the application for amendment of plaint allowed on condition that applicant pays Rs.7,000/- to defendant.'
9.Apart from the above decisions, lastly the learned counsel for the revision petitioner relies on the decision of Hon'ble SUpreme Court in RAJKUMAR GURAWARA (DEAD) THROUGH LRS. VS. S.K.SARWAGI AND COMPANY PRIVATE LIMITED AND ANOTHER) ((2008) 14 Supreme Court Cases 364) wherein it is observed thus:
Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10.3.2004 of the Additional District Judge.
10.In response, the learned counsel for the respondent/plaintiff submits that the respondent/plaintiff has filed I.A.No.17 of 2009 before the Learned Principal District Judge, Salem in A.S.No.92 of 1998 praying permission to amend the plaint on the ground that this Court has framed five substantial questions of law in S.A.No.112 of 2000 and this Court has allowed the second appeal by its judgment dated 28.08.2008 and has set aside the judgment and decree of the first Appellate Court in A.S.No.92 of 2000 and has remitted the matter to the file of the Learned Principal District Judge, Salem for fresh disposal in accordance with law and this Court has categorically observed in its second appeal judgment S.A.No.112 of 2000 interalia to the effect that 'therefore from the evidence available on record, it is difficult for this Court to answer the above questions and also the other substantial questions of law involved in this case etc'., and moreover the High Court has also observed 'if the respondent/plaintiff is advised to amend the plaint he can very well approach the First Appellate Court with such a prayer and it is for the First Appellate Court to decide the matter independently' and therefore the amendments as detailed in the application in I.A.No.17 of 2009 have been sought for to bind the proposed amendments since there will be no change in regard to nature and character of the suit and also that cause of auction will not change an in fact no prejudice will be caused to the revision petitioners and in fact the first Appellate Court has rightly allowed the amendment application taken into account all the facts and circumstances of the case in a cumulative fashion.
11.In the counter filed by the revision petitioners to I.A.No.17 of 2009 they have averred among other things that the amendment application is not in consonance with the direction given in the judgment applied by this Court in S.A.No.112 of 2000 dated 28.08.2000 and as such the application in amendment is not maintainable in law and earlier the respondent/plaintiff has sought the relief of permanent injunction in respect of the ventilation put up by him and only on its basis of cause of action, the respondent/plaintiff has filed the suit and now the proposed amendment sought for by the respondent/plaintiff is completely changed the cause of action and the nature of the suit throwing away all the principles of amendment envisaged under Civil Procedure Code and in short the respondent/plaintiff is not entitled to file the amendment application in derogation of the directions issued by this Court in its judgment in S.A.No.112 of 2000 dated 28.8.2000 and have prayed for dismissal of the application.
12.At this stage, the learned counsel for the respondent/plaintiff cites the decision of the Hon'ble Supreme Court in PURAN RAM VS. BHAGURAM AND ANOTHER) ((2008) 4 MLJ 258 (SC)) wherein it is held that 'when the order of trail Court was either without jurisdiction or perverse or arbitrary, only then High Court can interfere under
Article 227 of the Constitution in the discretion of the trial Court.'
13.He also relies on the decision of this Court in N.KAMALAMMAL, WIFE OF A. MANJIA PILLAI VS. S.CHAKRAVARTHY AND OTHERS (1964 MLJ(2) 241) wherein it is held as follows:
"A house owner in order to repair his wall on his neighbour's side of the premises had the right to go to the other side of the wall on the land of his neighbour, the right being in the nature of a necessary easement but such an easement did not extend to going over the neighbour's roof or terrace for that purpose. Further the existence of other methods of attending to the repairs from within the property of the plaintiff himself is fatal, to the claim to an easement of necessity."
14.Also, the learned counsel for the respondent/plaintiff cites the decision of the Hon'ble Supreme Court in NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR VS. BHAGWAN DAS (D) BY LRS. ((2008)8 MLJ 789 (SC)) wherein it is observed thus:
'The Court has power to allow either party to alter or amend Pleadings at any stage of proceedings which is necessary for purpose of determining real questions of controversy between parties and law of pleadings is only to ensure that both parties should be aware of contentious issues before parties go for trial etc, and further it is also observed that procedural law is only hand-maid of Justice and the Court may, in appropriate cases, ignore or excuse a mere irregularity in observance of procedural law in larger interest of justice '.
16.Be that as it may, it is useful for this Court to refer to the relief sought for by the respondent/plaintiff in the plaint in OS.No.471 of 1992 as sought for the relief of permanent injunction in his favour and against the revision petitioners/defendants reversing them and in any way prevent the respondent/plaintiff from plastering or painting or white-washing or maintaining the outer side of the other wall of the suit property and to take any steps to close the ventilator put up by the plaintiff on the Southern wall of the suit property in any way etc.
17.In fifth paragraph of the plaint in O.S.No.471 of 1992, the respondent/plaintiff has averred the following:
The Plaintiff has now constructed a two storeyed terraced building. In the ground floor portion of the suit property the plaintiff's husband is running his business. In the first floor portion, the plaintiff is residing with her family. The second floor portion is a open terraced area. The plaintiff, has on the southern wall of the suit property, which is with in her boundary, in the first floor portion put of a ventilator at the time of construction of the house. The said ventilator is fixed at the height of 24 feet from the basement level. The said ventilator is put up in order to get fresh air and for lighting.
18.Again, in eighth paragraph of the plaint the respondent/plaintiff has mentioned the following:
"Hence the plaintiff attempted to plaster the outer side of her southern wall on 01.06.1992. While so, the plaintiff was prevented by the defendants from plaintiff that the said ventilator has also to be closed. The defendants have no right either to prevent the plaintiff from plastering her southern wall on its outer side or to demand that plaintiff to close the said ventilator. The defendants have openly proclaimed on 01.06.1992 that unless the said ventilator is closed as demanded by them they would close the said ventilator. The defendants are sons and mother. The defendants are having the support of rowdy elementa and they would achieve their object by unlawful ways and means with the support of the rowdy elements. Unless the defendants and their men are restrained by means of a permanent injunction that they should not in any was prevent the plaintiff from plastering, white-washing or painting the outer side of the southern wall of the suit property or to close the said ventilator put up by the plaintiff the southern wall of the suit property in any way, the defendants would prevent the plaintiff from plastering, white-washing or painting the outer side of the southern wall of the suit property and they would also close the ventilator put up by the plaintiff on the southern wall of the suit property and the same would cause irreparable loss, inconvenience and injury to the plaintiff, which cannot be compensated by means".
19.It is to be noted that as a normal rule, leave to amend the plaint will be granted so as to enable the real controversies in issues between the parties to be raised on the basis of the pleadings. As a matter of fact, the leave to amend ought to be always granted unless the present compliance has acted malafide or by its blunder he has caused some injury to otherside which cannot be vested for cost.
20.Significantly, a Court of Law while dealing with the application for amendment should bear in mind the principles that (1) all amendments ought to be allowed which are necessary for the consideration of the real disputes in the suit (2) As a matter of fact the proposed amendments must not alter and be a substitute of the cause of action on the basis of which the suit has been filed (3) The contradictory and inconsistent averments just opposite to the admitted position of facts or mutually destructive averments of facts will not be allowed to be inserted by means of amendment.
(4) The amendments of a claim or relief barred by time must not be allowed (5) The litigants should not suffer on account of the technicalities or law and the amendment ought to be allowed to reduce the litigation between the parties and also to put an end to the plurality of proceedings (6) An error or mistake which is not a malafide or a fraudulent one ought not to be a ground for rejecting the application for an amendment of pleadings.
21.The aforesaid principles are only illustrative ones and they are not exhaustive.
22.It is an axiomatic fact in law that a bonafide amendment, necessary for adjudication of the real issues in controversies between the parties must be allowed, however negligent the first omission may be in the considered opinion of this Court. A Court of Law can exercise its discretion while dealing with an amendment application. After, 'all such amendments shall be made as may be necessary for the purpose of determining real question in controversy' will have to be allowed to subserve the interest of justice in a processual system of jurisprudence.
Further, even because of infraction of rules of procedure, negligence or inadvertence the amendments should not be refused, because the paramount consideration is administration of Justice only.
23.At this stage, this Court worth recalls the Premier case CROPPER VS. SMITH ((1884) 29 Ch D 700) wherein the aim of amendment of pleadings has been described as below:
"It is a well established principle that the object of the Courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct in their cases by deciding otherwise than in accordance with their rights... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour of grace... it seems to me that as soon as it appears that they way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is s much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is matter of right."
24.Also in the decision of MA SHWE MYA VS. MAUNG MO HNAUNG (AIR 1922 PRIVY COUNCIL 249) it is held thus:
"All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must by enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
25. In this connection it is relevant to make a mention that the pleadings can be amended to substantiate, elucidate and expand the already preexisting facts.
26.Therefore, it is candidly crystal clear that in such of the proceedings, all amendments are to be allowed of course satisfying the two conditions (i) of not working injustice to the otherside 2) of being necessary for the purpose of resolving the dispute in controversy between the parties.
27.As far as the present case is concerned, on a careful consideration of respective contentions this Court is of the considered view that the amendments sought for by the respondent/plaintiff in the amendment application in I.A.No.17 of 2009 like (1) declaring that the plaintiff is the absolute owner of the 'B' Schedule property (2) permanent injunction restraining the defendants etc., from closing down the ventilator in the southern wall of the suit 'B' Schedule property in its first floor, (3) permanent injunction restraining the defendants etc., from in any way preventing the plaintiff from using the 'C' Schedule property for the limited purpose of plastering, white-washing and repairing the suit 'B" Schedule property with due notice to the defendants etc., are quite essential for an effective and efficacious adjudication of the subject matter of litigation between the parties in a meaningful and purposeful manner and they are bona fide and not withstanding of the fact that the respondent/plaintiff has not sought for these amendments at the earliest point of time in the suit before the trial Court, and further this Court is of the considered view that the First Appellate Authority viz., the Principal District Judge, Salem has exercised his discretion in a proper and valid manner while allowing the I.A.No.17 of 2009 on 16.4.2009 and the said order does not suffer from any serious infirmity or patent illegality in the considered opinion of this Court and resultantly the Civil Revision Petition fails.
28.In the result, the Civil Revision Petition is dismissed leaving the parties to bear their own costs. Consequently, connected miscellaneous petition is closed. Further this Court grants liberty to the revision petitioners/appellants 1 and 2 to file an additional written statement before the First Appellate Court by means of subsequent pleadings and that the revision petitioners are directed to file their additional written statement before the First Appellate Authority within a period of two weeks from the date of receipt of copy of this order, the First Appellate Authority viz., the Principal District Judge, Salem shall frame necessary points for determination in Appeal (consequent to the amendment of the pleadings) and shall also permit the parties to examine fresh witnesses and to adduce oral and documentary evidence if they so desire and in any event the First Appellate Authority is directed to dispose of the appeal in A.S.No.92 of 1998, which is pending on its file within a period of six months from the date of receipt of copy of this order and to report compliance to this Court without fail.
To
1.The Principal District Judge, Salem.
2.The Section Officer (Judicial), High Court, Madras 104.
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