Mobile View
Main Search Advanced Search Disclaimer
Cites 8 docs - [View All]
The Code Of Civil Procedure (Amendment) Act, 1956
Kumaraswami Gounder And Ors. vs D.R. Nanjappa Gounder (Dead) And ... on 28 October, 1977
Shiv Gopal Sah @ Shiv Gopal Sahu vs Sita Ram Saraugi & Ors on 30 March, 2007
M/S. Revajeetu Builders & ... vs M/S. Narayanaswamy & Sons & Ors on 9 October, 2009
Chinnakkal vs Marakkal, Arumugam, Sennimalai ... on 6 July, 2005
Citedby 1 docs
Nataraja Thevar vs Nainar Thevar on 3 December, 2012

User Queries
View the actual judgment from court
Madras High Court
Revathy vs Savarimuthu on 22 July, 2011
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:  22.07.2011

CORAM

THE HONOURABLE MR. JUSTICE K.VENKATARAMAN

C.R.P.(PD) No.2459 of 2011
and
M.P.No.1 of 2011


1.Revathy
2.Hemalatha
3.Danasegarane
(Petitioners 1 and 2 represented
 by their Power of Attorney
 Danasegarane, Petitioner-3 herein)				... Petitioners

Vs.

Savarimuthu								... Respondent


	Civil Revision Petition filed under Article 227 of Constitution of India to set aside the Order dated 14.12.2010 passed in I.A.No.290 of 2002 in O.S.No.96 of 1990 on the file of the Court of Principal District Munsif of Pondicherry.

			For Petitioners	: 	Mr.C.Raghunatha Reddy
			For Respondent	:	Mr.V.Lakshminarayanan

O R D E R

The present revision is directed against the order allowing the application preferred by the respondent made under Order VI Rule XVII of the Civil Procedure Code.

2. The defendants in O.S.No.96 of 1990 before the learned District Munsif, Puducherry, are the petitioners herein and the plaintiff thereon is the respondent herein.

3. In a suit filed by the respondent against the petitioners for permanent injunction restraining them from interfering with his peaceful possession and enjoyment over the suit property, an application came to be filed by the respondent in I.A.No.290 of 2002 for amendment of the plaint incorporating the prayer for declaration. The said application came to be allowed by the Court below and the present revision is directed against the said order.

4. Mr.C.Raghunatha Reddy, learned counsel for the petitioners strenuously contended that the suit has been filed in the year 1990 and such an application for amendment came to be filed in the year 2002 and that too, when in the written statement and in the additional written statement it has been pleaded by the petitioners that the suit for bare injunction is not maintainable and only a declarative suit has to be filed. He has also relied on the decisions reported in Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and others (2007) 4 MLJ 378 (SC), Chinnakkal v. Marakkal and others (2005) 3 MLJ 577, Revajeetu Builders and Developers v. Narayanaswamy & Sons and others (2010) 2 LW 917 and Kumaraswami Gounder and others v. D.R.Nanjappa Gounder (dead) and others AIR 1978 Madras 285.

5. Thus, citing those decisions, the learned counsel for the petitioners submitted that the Court below ought not to have allowed the application filed by the respondent under Order VI Rule XVII CPC.

6. Before adverting to the said contention of the learned counsel for the petitioners, it has to be seen what was the averment made in the affidavit filed in support of the application for amendment. In the affidavit filed in support of the application for amendment, the respondent herein has stated that the third defendant has constructed a wall and window on the north eastern side of the wall on and from 07.12.2000 during the pendency of the suit. He was asked why such a construction is being put up. He has done so willfully disobeying the grant of order of injunction in favour of the respondent. It has further stated that the third defendant who represents other defendants had already encroached a portion of the property during the pendency of the suit. In view of the same, it has necessitated the respondent herein to file an application under Order VI Rule XVII CPC. On the above backdrop of the matter it has to be seen whether there is any justification on the part of the respondent herein to file an application for amendment of the pleadings and whether it is a belated one. If the statement made in the affidavit filed in support of the application was that such encroachment or construction was put up immediately after filing of the suit or at least immediately after filing of the written statement, one can understand that the application has been filed belatedly by the respondent herein. As stated already, it has been pleaded by the respondent herein that the construction has been put up and encroachment has been made after filing of the suit, that too, in the year 2000. In such circumstances, it has to be seen whether such encroachment was made after the suit and such construction was made after the suit. It is a common knowledge that while deciding the application for amendment the merits of the amendment cannot be discussed. It has to be seen only at the time of trial.

7. One more aspect that has to be seen in the present case is that the respondent herein has taken out an application for amendment before the trial had started. Order VI Rule XVII CPC makes it very clear that the amendment can be allowed at any stage of the proceedings. It would be useful to reproduce Order VI Rule XVII CPC and the same is extracted hereunder:

"17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that 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."

8. However, the proviso contemplates that no such application shall be allowed after the trial has commenced unless the Court has come to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. There are two aspects in this case. One is that the respondent herein has filed the application for amendment before the trial has commenced. Consequently, the reasons have been set out in the affidavit filed in support of the application that such amendment has necessitated in view of the happenings after filing of the suit. As far as the proviso to Order VI Rule XVII CPC is concerned, it shall have an effect only in case an application has been filed for amendment after the trial has commenced. As stated already, the trial has not commenced in the present case.

9. Now, the judgments cited by the learned counsel for the petitioners requires for consideration.

10. In Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and others (2007) 4 MLJ 378 (SC), the Honourable Apex Court has held that even though the trial Courts are empowered to allow the application under Order VI Rule XVII CPC at any stage of the suit, when an application was filed for amendment with an extraordinary delay without any explanation, it has to be rejected. As far as the present case on hand is concerned though the suit has been filed in the year 1990 and the application has been filed under Order VI Rule XVII CPC in the year 2002, it has been clearly spelt out by the respondent herein that subsequent to the filing of the suit i.e., in the year 2000, there was an encroachment and construction which has necessitated the respondent herein to file such application for amendment. In view of the above stated position, I am of the considered view that the said judgment may not come to the rescue of the petitioners.

11. Yet another decision that has been relied upon by the learned counsel for the petitioners is Revajeetu Builders and Developers v. Narayanaswamy & Sons and others (2010) 2 LW 917. In the said decision, the Honourable Apex Court has made it very clear that an admission made earlier in the plaint cannot be withdrawn and that the amendment which changes the entire character of the plaint cannot be permitted. In the case on hand, as already pointed out, the respondent herein has not withdrawn whatever admissions he has made in the plaint. That apart, the character of the plaint does not changes in view of the amendment taken out by the respondent. He has claimed title over the property and hence, he has filed the suit for injunction and he is now seeking only declaration. I am of the considered view that the said judgment will not have any use to the petitioners.

12. The next judgment that has been relied on by the learned counsel for the petitioners is Chinnakkal v. Marakkal and others (2005) 3 MLJ 577. In the said judgment, the Honourable Apex Court has held that the plaintiff who is guilty of filing repeated amendment applications cannot get a relief. Even in the said judgment, it has been held that there is no bonafide in the amendment application and hence, it came to be rejected. In the present case on hand, though the respondent herein has filed two applications for amendment, I am of the considered view that there is a bonafide in the action of the respondent in filing the application in view of the statement made by him in the affidavit filed in support of the said application. Thus, I am of the considered view that the said judgment relied on by the learned counsel for the petitioners will not come to the rescue of the petitioners.

13. Yet another decision that has been relied on by the learned counsel for the petitioners is Kumaraswami Gounder and others v. D.R.Nanjappa Gounder (dead) and others AIR 1978 Madras 285. In the said decision, it has been held that by way of amendment a new cause of action cannot be entertained. In the case on hand, as stated already, the respondent herein is not trying to introduce a new cause of action.

14. In the judgment reported in Usha Balashaheb Swami and others v. Kiran Appaso Swami and others (2007) 5 SCC 602, the Honourable Apex Court has held that amendment application made under Order VI Rule XVII CPC has to be liberally allowed provided such amendment do not result in causing injustice or irretrievable prejudice to the opposite party. In the case on hand, merely because permitting the respondent herein to make an amendment it does not mean that the respondent herein has made out a case in his favour. As stated above, the merits of the amendment cannot be discussed while deciding the application for amendment.

15. In the decision reported in Vidyabai and others v. Padmalatha and another (2009) 2 SCC 409, the Honourable Apex Court has held that amendment application filed after introduction of proviso to the said provision in the year 2002 has to be strictly considered. It has been further held that the after the amendment in the year 2002 of Civil Procedure Code, the Courts jurisdiction to allow such an application is taken away unless the condition precedent thereof are satisfied. But in the case on hand the application for amendment has been filed before the trial Court and hence, the proviso to Order VI Rule XVII CPC will not have any play.

16. In yet another decision reported in S.Sathish and another v. Dr.Sumathi and others (2010) 7 MLJ 432, this Court has held that when admission made earlier is not wiped out or it is going to be kept intact, no prejudice will be caused to the other side even though an inconsistent plea was taken. No doubt, that is the case where this Court has dealt with, pertaining to the receipt of additional written statement. However, the ratio made therein will be applicable to the case on hand.

17. Considering the over all circumstances referred to above, I am of the considered view that even though there is some delay on the part of the respondent herein in filing an application under Order VI Rule XVII CPC, considering the averments made in the affidavit filed in support of the application, the trial Court was justified in allowing the application for amendment. I do not find any illegality or infirmity in the said order.

18. In fine, the Civil Revision Petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No costs.

gm To The Principal District Munsif, Pondicherry