The Revision Petitioners are the applicants in I.A.No.188 of 2009/plaintiffs in O.S.No.4 of 1997 on the file of the Family Court, at Puducherry and aggrieved by the order of dismissing the application for amendment of plaint, had filed this Revision.
2. The plaintiff filed the above suit against the defendants/Respondents herein praying for declaration that they are the wife and son of late Irisappan @ Kasinathan, payment of Rs.500/- per month, mandatory injunction directing the defendants to return 'B' schedule property, directing the payment of a sum of Rs.3,000/- towards arrears of maintenance from the first defendant from April 1996 to June 1996 and for an order of ad interim injunction restraining the defendants from encumbering the 'C' schedule property.
3. It is the case of the first plaintiff that her husband namely Irisappan @ Kasinathan died on 30.3.1996 under mysterious circumstances and out of wedlock, the second defendant was born. It is further contended by the plaintiff that the first defendant and his sons had refused to entry in the house at Alankuppam and Sridhana properties of the first plaintiff are in the custody of the defendants. It is also contended that the first plaintiff is not having any independent source of income and therefore, unable to maintain herself and his child and hence filed the above said suit.
4. The defendants filed the written statement contending among other things that the first plaintiff married one Marimuthu and begotten a female child on 25.9.1980 and the second plaintiff has also born to the said Marimuthu. Since the first plaintiff is the wife of Marimuthu and there was no marriage between her and Irisappan, declaration that she is lawful wife of said Irisappan and for consequential relief are wholly untenable and prayed for dismissal of the suit.
5. The plaintiff filed I.A.No.188 of 2009 seeking to amend the plaint stating that there was a family partition in her husband's family on 21.3.1991 and in order to substantiate the same, she prayed for the amendment in the cause of action paragraph, Court Fees column and also additional prayer for declaration that the sale deeds executed by first defendant in favour of defendants 3 and 11 are null and void. The said application was opposed by the Respondents herein by contending that the proposed amendment is hopelessly barred by limitation and that the amendments will introduce a new case and cause of action and that too after a lapse of 13 years. It is further stated that the proposed amendment will take away the admission made by the plaintiffs. It is further stated in the counter that the trial of the suit had already commenced and D.W.1 was in the box. Hence, for the said reasons, the Respondents herein prayed for the dismissal of the said application.
6. The lower Court taking into consideration the averments made in the affidavit and the counter affidavit, has dismissed the application for amendment on the ground that the proposed amendment will result in a new case with new cause of action and it is also highly belated. The Revision Petitioners/Plaintiffs, aggrieved by the same, had preferred this Revision.
7. Heard the submissions of Mr.S.Sathia Chandran learned counsel appearing for the Revision Petitioners and Mr.D.Ravichandran, learned counsel appearing for R1 and R9 and Tmt.Pushpa Sathyanarayana, learned counsel appearing for R2 to R8. This Court has also perused the typed set of documents.
8. A perusal of the proposed amendment would reveal that the Revision Petitioners herein are introducing the new cause of action. The suit was filed on 4.12.1995 and the defendants filed their written statement on 12.3.1997 wherein they had taken a specific stand denying the status of the plaintiffs. Even though the averments made in the affidavit filed in support of the application for amendment contains bare and minimal facts, amendment sought in the plaint runs into several pages.
9. It is a settled position of law that amendment of pleading should be allowed which are necessary for determination of the real controversies in the suit provided that the proposed amendment does not alter or substitute a new cause of action and it also should not cause prejudice to other side which cannot be compensated by costs. It is to be pointed out at this juncture that the evidence on the side of the plaintiff was over and D.W.1 is in the box. The Revision Petitioners/plaintiffs under the guise of amendment, are making attempt to introduce a new cause of action which would change the character of the suit. If the amendment is allowed, it will also take away the accrued right of the Respondents/defendants. The plaintiffs originally sought for declaration of their status and for recovery of 'B' schedule property and for arrears. Now, under the guise of amendment, they want to declare the sale deeds executed by first defendant in favour of defendants 3 and 11 as null and void and to declare that they are the absolute owners of the 'C' schedule property and for delivery of possession of 'C' and 'D' schedule properties. Since the amendment totally changes the nature and character of the suit and it also takes away the rights accrued in favour of the Respondents/defendants and that it came to be filed belatedly without affording any reasonable explanation, this Court is of the view that there is no illegality or impropriety or want of jurisdiction on the part of the trial Court in passing the impugned order.
10. The decisions relied on by the learned counsel for the Revision Petitioners in 2007 (5) CTC page 595 - Church of South India Trust Association, Tiruchirapalli-Thanjavur Diocesan Council vs. Kovil Pillai and others, 2008(4) TLNJ page 405 - Immanuel Rajachandran vs. Chinnarajulu Reddiar, are not applicable to the facts of the case for the following reasons.
11. The decision reported in 2007 (5) CTC page 595 - Church of South India Trust Association, Tiruchirapalli-Thanjavur Diocesan Council vs. Kovil Pillai and others, laid down the proposition that the amendment could be ordered at any time and at any stage of proceeding for the purpose of determining the real questions in controversy between the parties and the proposed amendment should not alter the nature and character of the suit.
12. In the decision reported in 2008(4) TLNJ page 405 - Immanuel Rajachandran vs. Chinnarajulu Reddiar, this Court taking into consideration the judgment of the Full Bench of this Court reported in 2006(5) CTC page 609 - Hi.Sheet Industries, Ambur Town, Vellore District vs. Litelon Limited, Hosur, has held among other things that the amendment of plaint being the discretion of the Court which need not be refused on technical grounds and allowing of the application for amendment is a rule and rejection is an exception.
13. There cannot be any difference of opinion with regard to the ratio laid down in those decisions. But each case has to be adjudicated and decided on its own facts and circumstances. As already held above, the facts and circumstances of the case, the amendment sought for by the Revision Petitioners/plaintiffs would definitely change the nature and character of the suit and also takes away the right accrued in favour of the Respondents/defendants. In the considered opinion of the Court, the Revision Petition lacks merit and accordingly, it is dismissed. But in the circumstances, there will be no order as to costs. Consequently, M.P.No.1 of 2009 is closed. Since the suit is of the year 1997, the trial Court is directed to dispose of the suit on or before 28.02.2010.
gr To The Family Court, Puducherry