This Revision has been filed by the petitioners against the order of the lower court passed in I.A.No.14491 of 2007 in O.S.No.7198 of 2005 dated 16.10.2008.
2. The petitioners herein are the defendants before the lower court. The respondent is the plaintiff.
3. The respondent/plaintiff had filed the aforesaid application seeking for the amendment of the plaint in I.A.No.14491 of 2007 and the same was allowed on condition to pay a sum of Rs.500/- towards cost. Against the said order the revision petitioners have preferred the present revision.
4.Brief facts of the case of the respondent/petitioner/plaintiff before the lower court are as follows:
(a). The respondent states that the property described in the schedule originally belonged to Kuppaswami Naicker his grand father. He had two sons Govidasami and Chockalinga. In a partition entered between Govindasami and Chockalinga the suit property was allotted to the share of Chockalinga. The said deed was registered as document No.2174 of 1959 S.R.O. West Madras. The suit property was constructed on the lease land belonging to Shri Sundararaja Perumal Koil, with the funds of joint family by Chockalinga and his four sons Govidasami, Venu, Srinivasan and Krishnan who is the father of the petitioner herein. The said Chockalinga died in 1964 and his four sons continued to be the members of the joint Hindu Undivided family.
(b) The respondent states that the property was maintained by the family and taxes were paid by them and receipts were obtained in the name of Venu, Paternal uncle of the respondent as he was living there. After the death of all the four brothers the respondent being the only surviving male issue in the entire family became absolutely entitled to the suit property. Since the 1st respondent became entitled to the suit property as the last male surviving co-parcener, he filed a suit in O.S.No.9994 of 1992 on the file of (VII Assistant City Civil Court, Madras) for a declaration that he was solely entitled to the suit property and also for possession and for a permanent injunction. In the said suit one Vasantha was arrayed as defendant who is the daughter of Kamala who was attending the house hold duties of Venu. Despite they were not related to the family, taking advantage of the situation, viz. the sickly nature of Venu and the absence of any lady member in the house under the guise of helping Venu were staying in the house and were helping him. The 1st defendant and her mother were staying in the house and the respondent allowed them to vacate after sometime and in turn they accepted to do so. Even though she was served with summons and was represented through a counsel and no written statement was filed even after granting time she was set exparte and an exparte decree was passed on 17.09.1993 and no appeal or petition was filed and the decree has become final.
(c) In pursuant to the document they executed a mortgage in favour of one Stephen who brought the property to auction sale and the petitioner filed O.S.No.7920 of 1993 which was dismissed by the trial court and an appeal was filed before this court. The suit was dismissed on the basis of Ex.C1 extract from the permanent land register without looking into the boundaries mentioned n the partition deed and the sale deed and the mortgage deed and mentioned that Survey Nos.1451/2 and 1451/2 are available in Alathur Subramania Achari street and S.No.1487 is available at Andiappa Naicken street. The property which has been allotted to paternal grandfather Chokkalinga was bearing Door No.1/21 Alathur Subramania Achari street, and later door number was changed to 29, Alathur Subrmania Achari Street and the property is situated within definite boundaries. However in writing the survey number by mistake in the portion that fell to paternal grand father the survey number is mentioned as S.No.1451 and he submits that the property is comprised in one survey number and the said property is divided among brothers and the wrong mentioning of the survey number is now being taken advantage of by the auction purchaser. The Trial court dismissed the suit on the ground that the petitioner has claimed right to the property situated in S.No.1457, where as the property purchased in auction is S.No.1451. The petitioner has given specific boundaries in the partition deed, with specific door number and also street name and earlier suit was also filed and decreed. Hence the petitioner prays to allow the civil revision petition and to dismiss the fair and decreetal order dated 16.10.2008 in I.A.No.14491 of 2007 in O.S.No.7198 of 2005.
5.The contentions of the petitioners/Respondents/Defendants are briefly stated as follows:
One P.Dhana Gopal- deceased is the bonafide purchaser of the property house bearing Door No.29 Alathur Subramania Achari street, comprised in R.S.No.1451/1 Block No.36 from one Stephen in and by a sale deed dated 18.10.1993 registered as document No.1679/1993. Petitioners in the revision petitions are the wife and son of Dhanagopal. The said property is comprised in R.S.No.1451/1 Block No.36 at Vepery Revenue Division. The said property was mortgaged by a deed dated 16.05.1991, registered as document No.545/91. On the failure of mortgagors, to repay the amounts due under the said mortgage the mortgagee brought the property for sale in exercise of his right under
Section 69 of the T.P.Act to realise the amounts in due and hence the petitioner purchased the same. They got the property by a registered settlement deed dated 11.09.1985 registered as document No.1083 of 1985. A reading of the plaint would show that the property purchased by the 4th respondent is comprised in R.S.No.1457 and measurement of the said property is 216 sq.ft. No boundaries is given to the suit property. On all counts the suit property is entirely a different one from the property purchased by them. In such circumstances the respondent in these Revision petitions is a unnecessary party to the suit. The petitioners property is comprised in R.S.No.1451/1 and the respondent property in R.S.1457 is a different one. After impleading the petitioners herein filed a detailed written statement reiterating the facts on October 2003. The lower court uphold the contention that the two properties are different and the respondent has no title to property comprised in R.S.No.1451/1. They further submit that if the amendment sought is allowed would cause great prejudice to them and therefore to dismiss the application.
6. The lower court had considered the contentions of both sides and it came to the conclusion that the respondent /petitioner/plaintiff was entitled to amend the description of the property as sought for by him. Aggrieved by such decision reached by the lower court the revision petitioners have preferred this revision.
7. Heard Mr.N. Jayabalan learned counsel for the revision petitioners and the Mr.A.Seshan learned counsel for the respondent.
8. Learned counsel for the revision petitioners would submit in his argument that the respondent/petitioner/plaintiff had filed the application before the lower court in a stage to fill up the laches and lacunae on the plaintiff's case before the lower court and he has not only filed these application to amend the description of the property, but also introduced a new case on behalf of the plaintiff. He would further submit that the description of the property given in the schedule of property was without any particulars and he wanted to change the Survey number as 1451 instead of 1457 and that will change the entire description of the property. He would also submit that the application was belatedly filed, despite he has given the details about the S.No.1451 even in the written statement filed by the petitioners. If the plaintiff is permitted to amend as sought for in the petition filed for amendment it will change the entire case before the lower court including the schedule of the property.
9. He would again submit in his argument that the respondent/plaintiff was estopped from claiming the suit property under the partition deed. He would further submit that the respondent plaintiff was not entitled to seek for amendment of the plaint after a long gap of 2 years. He would rely upon a judgment of our Apex court reported in 2008 5 CTC 253 in between(RAJKUMAR GURAWARA (DEAD) THROUGH LRS. Vs. S.K.SARWAGI & CO.PVT.LTD) in support of his case, he would also draw the attention of the court that the proposed amendment was considerably belated. The respondent/plaintiff was also barred under the provisions of Order 6 Rule 17 CPC. He would further submit that the lower court had ordered amendment despite the legal positions against case of the plaintiff and therefore the orders passed by the lower court is liable to be interfered and set aside. He would thus request the court to allow the revision.
10. The learned counsel for the respondent (plaintiff before the lower court) would submit in his argument that the plaintiff had filed the application for amendment of the plaint in order to facilitate the court to identify the suit property correctly and it would not change the suit property and there would not be any difference of cause of action nor any variation in the nature of claim or property. He would further submit that the survey number of the said property was wrongly mentioned as 1457 instead of 1451. But the property was correctly described in the partition deed of the year 1959 in between predecessors of the plaintiff to the suit property and their co-sharers. The said mistake was evident from the Land Permanent Register produced in the court as EX.C1 in the suit in O.S.No.7920/1993 a suit in respect of the same property.
11. He would further submit that there is no change of door number and street name but the proposed amendment is only in respect of survey number and therefore it will not change the identity of the property. He would further submit that if really the proposed amendment of survey number would change the identity of the property, then certainly the door number and the street name might have been different, but they were not sought to be amended. He would again submit in his argument that since the description is correctly given, it will not change the identity of the property nor would create any new cause of action or change the nature of the suit. He would further submit that the revision petitioners have violated the terms of the decree passed against them by bringing the property under the colour of mortgage sale and therefore the revision petitioners are vehemently opposing the amendment as if it would change nature of the suit, cause of action and the identity of the property. He would again submit in his argument that the rules of the court are nothing but provisions intended to secure proper administration of justice and when the proposed amendment are neither changing the cause of action nor the subject matter of the suit, the amendment should always be liberally ordered.
12. He would cite a judgment of full bench of this court reported in AIR 2007 MADRAS 78 in between (M/S. HI-SHEET INDUSTRIES V. LITELON LIMITED & Ors.). He would also submit in his argument that the seeking of amendment belatedly, however to enable the court to adjudicate upon it more substantially should not be refused. For that purpose, learned counsel cited a judgment of Hon'ble Apex Court reported in AIR 2007 SC 2577 in between(RAMACHANDRA SAKHARAM MAHAJAN V. DAMODAR TRIMBAK TANKSALE (D)& Ors.). He would also submit that the dispensation of substantial justice requires that the case of the respondent/plaintiff would be permitted to amend the plaint. Therefore he would request the court that the lower court had exercised the descretion of permitting amendment in the plaint in order to enable the court to pass the judgment more substantially and lawfully and therefore the findings of the lower court may not be interfered and the revision may be dismissed.
13. I have given anxious thoughts to the arguments advanced on either side. The lower court had ordered the amendment application filed before it that it was necessary for the court to come to a correct conclusion.
14. For convenience sake, the rank of parties before the lower court are being used infra in this judgment.
15. The plaintiff, had filed the application and applied for a correction of survey number of the said property in the plaint. In short, he wanted to amend the plaint description of property by correcting survey number as 1451 instead of 1457 in the said property. He has based his claim on a admitted document which took place in the year 1959. Admittedly the application was not filed before the commencement of the trial. The grievance on the part of the defendants 1 & 2 was that he had not opted to amend the plaint immediately after he had filed the written statement before the lower court. It is also been contended that a separate issue has been framed by the trial court as to the identity of the property and even after that the amendment was not sought to be introduced. Now it is the court to consider whether the amendment ordered by the lower court is in a highly belated stage.
16. According to judgment referred by the Hon'ble Apex Court reported in AIR 2007 SC 2577 in between(RAMACHANDRA SAKHARAM MAHAJAN V. DAMODAR TRIMBAK TANKSALE (D)& Ors.) It has been categorically mentioned as follows:
"14. We find that the trial court and the appellate court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial court within three months from this date as per the practice followed in the trial court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment."
17. This would enable the court to order amendment even though it is a highly belated stage when real question has to be decided pin pointedly by the court. However it has been relied upon by the Defendants 1 & 2 a judgment of our Apex court reported in 2008 5 CTC 253 in between(Rajkumar Gurawara (Dead) through Lrs. vs. S.K.Sarwagi & Co.Pvt.Ltd. & another). It would run thus:
"5....
The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to Proviso appended therein. The said Rule with Proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order Vi, Rule 17, C.P.C confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the Proviso."
In this judgment also, it has been reiterated that the amendment can be allowed if the parties are able to satisfy the court that inspite of due diligence they could not raise the issue before the commencement of trial. It has also been mentioned clearly that such amendments sought for by the parties should determine the real question which was the controversy in between the parties. Therefore, we have to see as to whether the proposed amendment would facilitate the court to find a correct conclusion with satisfaction of giving proper justice to the parties.
18. It has been categorically laid down by the full bench of this court reported in AIR 2007 MADRAS 78 in between (M/S. HI-SHEET INDUSTRIES V. LITELON LIMITED & Ors.) as follows:
"26. Order 6, Rule 17 of the code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision."
(iii) Thus, a judicial discretion is to be exercised by Court in this regard and when the facts and circumstances are in favour of amendment, it should not be rejected."
19. Applying those principles in the present case, we have to determine as to whether the amendment sought for by the plaintiff is necessary for setting the real dispute in between the parties or the delay if any in preferring the amendment would defeat the case of the defendants 1 and 2 and it is only for the purpose of delaying the progress of the case any prejudice would be caused to the defendants 1 and 2 due to the proposed amendment. As per the description already raised in the plaint we could see the land was located in S.No.1457. The house put up in the suit property was assigned with Door No.29 in Alathur Subramania Achari Street. The admitted document Permanent Land Register which was produced as EX.C1, in O.S.No.7920/1993 in between the parties would disclose that the property in S.No.1457 is located in Andiappa Naicken street and not in Subramanya Achari street and the property in Subramania Achari Street were stated to be located in S.No.1451/1 and 1451/2. This would primafacie show that the reference to survey number in the plaint schedule as 1457 is a mistake. Therefore, by merely correcting the Survey number as 1451 instead of 1457 it will not change the identity of the property mentioned in the plaint, when door no and street name are not changed.
20. After hearing both parties the lower court had come to a conclusion of allowing the application filed by the respondent/plaintiff on payment of cost of Rs.500/- within a stipulated time.
21. The lower court had imposed the said cost Rs.500/- as a conditional precedent for the inconvenience caused to the defendants/revision petitioners which is just and appropriate. Therfore, I find no reason for interfering with the order passed by the lower court and therefore no interference can be made in the order passed by the lower court. Accordingly the revision petition fails and is liable to be dismissed.
22. In fine, the civil revision petition is dismissed. No costs. Connected miscellaneous petition is closed.
kpr To, The VI Assistant Judge, City Civil Court, Chennai