This Civil Revision Petition is directed against the order and decree dated 17.4.2013 passed in I.A.No.132 of 2013 in O.S.No.4020 of 2011 on the file of the learned XVI Assistant Judge, City Civil Court, Chennai.
2. The facts in a nutshell are as under: The petitioners herein are the plaintiffs in the suit filed for the relief of mandatory injunction and permanent injunction. In the said suit, written statements were filed by respondents 1 and 2.
3. Pending suit, the petitioners filed an interlocutory application under Order VI Rule 17 of the Civil Procedure Code to amend the plaint as under:
a) Page 5 prayer column (a), 4th line after the word construction 'in the common areas and one such is in the vacant place on the eastern side of the plaintiffs property' to be inserted.
b) Strike out the Flat No.AG88 and amend as Flat No.AG86
c) In prayer column (b), 4th line before ground floor 'Common area and one such is in the vacant place on the eastern side of the plaintiffs property' to be inserted.
d) Page 7, schedule 'B' after 50% and twenty five percent (or 25%) - to be inserted.
4. The respondents objected to the amendment of the plaint stating that the case is in trial stage and the object of Order VI Rule 17 of the Civil Procedure Code providing for amendment of plaint pleadings is based on diligence of the party seeking amendment and, therefore, the interlocutory application is liable to be dismissed.
5. The Court below, by the order impugned in this civil revision petition, dismissed the interlocutory application holding that the petitioners have not proved that despite due diligence they have omitted to type the particulars now sought to be incorporated in the plaint.
6. Assailing the said order, the present civil revision petition is filed.
7. The learned counsel appearing on behalf of the petitioners contended that the trial Court had not followed the principles laid down by this Court as well as the Supreme Court for amendments under Order VI Rule 17 of the Civil Procedure Code and had dismissed the interlocutory application against the weight of evidence and probabilities of the case purely based on the counter affidavit filed by the respondents and, therefore, the order under challenge is liable to be set aside.
8. Per contra, the learned counsel appearing for the respondents reiterated the reasons that weighed with the Court below in dismissing the interlocutory application and prayed for dismissal of the civil revision petition.
9. Heard the learned counsel on either side and perused the documents available on record.
10. A perusal of the order under challenge shows that the Court below had dismissed the interlocutory application only on the ground that the petitioners had not been diligent.
11. In Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341, the Hon'ble Supreme Court has held that the power to allow amendment is wide and can be exercised at any stage of proceedings in the interest of justice. The Hon'ble Supreme Court explicitly held that the original provision was deleted by the Amendment Act 46 of 1999, however, it has been again 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. However, 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.
12. In the case on hand, it is the specific case of the petitioners that the suit had been filed before the vacation Court in a hurried manner, as the first respondent was raising constructions and trying to occupy the unauthorized constructions, and therefore by oversight such omission had occurred. On merits, the respondents have not raised any objection to the amendment, but for stating that the petitioners have not been diligent. It is not the case of the respondents that the petitioners are raising a new plea or a new cause of action. The petitioners are only seeking some insertions in the plaint, which would throw more light on the suit property. The said insertions, in any way, do not alter the character of the suit. Further, if granting of amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed.
13. In my considered view, refusing amendment would lead to injustice and multiplicity of litigation and, therefore, the prayer made in the interlocutory application deserves to be allowed by allowing this civil revision petition.
14. In the result, this civil revision petition is allowed on condition that the petitioners shall pay a sum of Rs.3,000/- towards costs within a period of two weeks from the date of receipt of a copy of this order. The trial Court is directed to take appropriate steps to amend the plaint, thereafter the respondent defendants are permitted to file reply statement to the amended plaint. Thereafter, the trial Court is directed to dispose of the suit within a period of two months on day to day basis, without giving any unnecessary adjournment to either party. No costs. Consequently, M.P.No.1 of 2013 is closed.
11.01.2017 Note: Issue order copy on 08.10.2018 vs Index : Yes To The XVI Assistant Judge, City Civil Court, Chennai.
M.V.MURALIDARAN, J.
vs C.R.P. (PD) No.3331 of 2013 11.01.2017