Challenging the fair and final order passed in I.A. No.1828 of 2014 in O.S. No.260 of 2009 on the file of District Munsif Court, Chengalpattu, the plaintiff has filed the above Civil Revision Petition.
2. The plaintiff filed the suit in O.S. No.260 of 2009 for declaration, mandatory injunction, recovery of possession and permanent injunction. The defendants filed their written statement and additional written statement and are contesting the suit.
3. Thereafter, when the suit was taken up for trial, the plaintiff took out an application in I.A.No.1828 of 2014 under Order VI, Rule 17 of CPC to amend the plaint by amending the schedule of property in the plaint.
3.1 In the affidavit filed in support of the application, the plaintiff has stated that when the Advocate Commissioner visited the suit property, the Commissioner found further illegal encroachment by putting up superstructure in the nature of toilet and bath room. Since the Commissioner has filed his report stating about the further illegal encroachment, the plaintiff has filed the application seeking for amendment of the schedule of property in the plaint.
4. The defendants filed their counter disputing the averments stated in the affidavit filed in support of the application wherein they have stated that when the case was posed for trial, the plaintiff filed an application seeking for amendment of the Survey Number as 113/12 in the place of Survey No.113/1A2 and that even at that time, she did not choose to amend the extent from 0.1 cent to 18.6 cent, which is the extent available in Survey No.113/12. Now the plaintiff has filed the second application seeking for amendment of the plaint by amending the schedule of property. Further, the defendants have stated that the present application has been filed only after the cross examination of P.W.1, who has made vital admissions in favour of the defendants.
5. The Trial Court, after taking into consideration the case of both the parties, dismissed the application.
6. Aggrieved over the same, the plaintiff has filed the above Civil Revision Petition.
7. Mr.P.Valliappan, learned counsel appearing for the petitioner, in support of his contentions, relied upon the following judgments:-
(i) 2012 (11) SCC 341 (Abdul Rehman and another v. Mohd.
Ruldu and others) wherein the Hon'ble Supreme Court, held as follows:-
"11) The original provision was deleted by Amendment Act 46 of 1999, however, 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, 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. The above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others vs. Gattu Mahesh and Others, (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC 337. Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment.
12) It is true that originally the appellants have approached the trial Court with a prayer for permanent prohibitory injunction restraining respondent Nos. 1-3 herein from forcible and illegal dispossession of the appellants herein from the land in dispute. Respondent Nos. 1-3 herein (Defendant Nos. 1-3 therein) filed written statement wherein they specifically alleged that they have stepped into the shoes of Ramzanan and Smt. Bashiran and Rashidan on the basis of the sale deeds dated 25.08.2003. It is the claim of the appellants that the above said Ramzanan and Smt. Bashiran and Rashidan have no concern with the ownership of the land in dispute and no right to alienate the suit land to the defendants or anybody else. In view of the stand taken by the defendants in their written statement, in the application filed under Order VI Rule 17 of the Code, the appellants have specifically raised that the alleged sale deed Nos. 1810 and 1811 dated 25.08.2003 in favour of defendant Nos. 1-3 executed by Ramzanan and Bashiran and Rashidan are liable to be set aside and have no effect on the rights of the plaintiffs and Saifur-Rehman qua the suit land and the mutation Nos. 781 and 782 sanctioned on the basis of above noted sale deeds dated 25.08.2003 are also liable to be set aside. In view of the claim of the appellants, we verified the necessary averments in the written statement of Defendant Nos. 1 and 3 and we agree with the stand of the appellants."
(ii) 2006(4) SCC 385 (Rajesh Kumar Aggarwal and others v.
K.K.Modi and others) wherein the Hon'ble Supreme Court, held as follows:-
"15. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
16. Order VI Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
17. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
18. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court."
(iii) 2004(6) SCC 415 [Pankaja and another v. Yellappa (dead) by LRs and others] wherein the Hon'ble Supreme Court, held as follows:-
"14.The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case.
16. This view of this Court has, since, been followed by a 3 Judge Bench of this Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board & Ors. 2004 (3) SCC 392. Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice."
(iv) 2008(5) CTC 548 (Pattamma and others v. Munusamy and 20 others) wherein this Court, held as follows:-
"12.It is to be borne in mind that the power to allow an amendment should be liberally exercised. The aim in allowing an amendment is to avoid plurality of proceedings in the eye of law. As a matter of fact, an amendment which does not totally alter the character of an action ought to be granted as a matter of course. However, care should be taken to see that prejudice or an injustice are not inflicted upon the other party under the pretext of an amendment. As a general rule, the technicalities of law ought not to be permitted to hinder a court of law in the administration of justice between the parties, in the considered opinion of this Court. Generally speaking there is no injustice in granting an amendment if the opposite party can be compensated in terms of costs. Undoubtedly, it is the discretion of the court to allow an amendment application or not. It cannot be gainsaid that the rules of procedure are intended for the administration of justice and a litigant should not be refused a fair, prudent and just relief merely because of some negligence, mistake or inadvertence or even infraction of the rules of procedure. However, the order of costs to be imposed must be quite reasonable and the same should not be by way of punishment."
(v) 2006 (5) CTC 609 (Hi Sheet Industries v. Litelon Limited) wherein this Court, held as follows:-
"12.00.RESULT :
In the result, the reference is answered holding :
(1) that the delay in filing the application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the Court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the suit.
(2) According to the proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed.
(3) The proviso to Order 6 Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 01.07.2002 and not to the pleadings instituted prior to 01.07.2002 and while considering the proviso to Order 6 Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents, addressing of arguments etc., and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.
(4) Before parting with the decisions, we are tempted to cite a paragraph from a case Ma Shwe Mya v. Maung Mo Hnaung 21 "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 be 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." (emphasis supplied) Keeping the above principle, the Court of Law has to dispense the justice.
(5) Therefore, we hold that the impugned order, disallowing the amendment, is liable to be set aside for more than one reason.
(6) In view of our aforesaid discussion, we are of the view that the trial Court has erred in rejecting the application for amendment of the plaint. Accordingly, the order of the trial Court in I.A.No.589 of 2002 in O.s.No.45 of 1996 is set aside and the application for amendment of plaint is allowed. The plaintiff is directed to proceed to the trial Court forthwith and take immediate steps for the necessary amendment as mentioned in the said application and carry out the amendment within a period of one month from the date of this order.
(7) We cannot ignore the facts and circumstances of this case and, accordingly, we direct the trial Court to dispose of the suit itself within a period of three months from the date of communication of this order to it, as already there is a considerable delay by now. There shall be no order as to costs. Consequently, the connected C.M.P.No.8415 of 2003 is closed."
8. Countering the submissions made by the learned counsel appearing for the petitioner, Ms. C.R.Rukmani, learned counsel appearing for the respondents submitted that the Trial Court had rightly dismissed the application for the reason that the plaintiff is trying to get over the admissions made by her in her cross examination. That apart, the learned counsel also submitted that since the plaintiff is seeking to set up a new case contrary to the original pleadings, the Trial Court has rightly dismissed the application.
9. It is pertinent to note that the plaintiff filed the suit in O.S.No.260 of 2009 in the year 2009, the written statement was filed in the year 2010 and the additional written statement was filed in the year 2014. Prior to the commencement of the trial, the Advocate Commissioner visited the suit property and filed his report. Earlier, the plaintiff filed an application seeking amendment of the plaint in respect of the suit survey number. Originally, the suit was filed in respect of Survey No.113/1A2. Thereafter, by way of amendment, the survey number was amended as 113/2. Even at that time of amendment, the plaintiff has not sought for amendment of the extent.
10. Now, after the cross examination of P.W.1, the present application has been filed seeking for amendment of the schedule of the property.
11. The Trial Court, while dismissing the application, extracted the admissions made by P.W.1 with regard to the suit property. If the present application is allowed, it would give an opportunity to the plaintiff to get over the admissions made by P.W.1 in the cross examination. That apart, the plaintiff cannot be allowed to set up a totally new case contrary to the averments stated in the plaint. The plaintiff should have filed the application seeking for amendment of the schedule of property atleast immediately after the filing of the Advocate Commissioner's report. When the plaintiff had deposed evidence making some admissions in favour of the defendants, she cannot be allowed to amend the schedule of property to get over the admissions made by her.
12. Though there is no dispute with regard to the ratios laid down in the judgments relied upon by the learned counsel for the petitioner, since the facts and circumstances of the present case are totally different, the said judgments are not applicable.
13. The Trial Court, taking into consideration all these aspects, rightly dismissed the application.
14. In these circumstances, I do not find any error or irregularity in the order passed by the Trial Court. The Civil Revision Petition is devoid of merits and is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
28.03.2017 Index : Yes/No Rj To The District Munsif Court Chengalpattu.
M. DURAISWAMY,J., Rj Order in C.R.P.(PD)No.1628 of 2015 & M.P.No.1 of 2015 28.03.2017 http://www.judis.nic.in