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2000 DIGILAW 354 (MAD)

Sanjeevi Ammal v. Narasimha Naicker

2000-03-28

S.S.SUBRAMANI

body2000
Judgment : 1. Plaintiffs in O.S. No. 360 of 1995 on the file of District Munsif, Sholinghur are the revision petitioners. 2. Petitioners are aggrieved by the adverse order in I.A. No. 399 of 1997 filed by them an application to amend the plaint. 3. Suit filed by them was to declare their title to scheduled property and for permanent prohibitory injunction restraining defendants from interfering with their, possession. 4. In the written statement filed by defendants they denied the right of plaintiffs to any of the reliefs in the plaint. 5. Along with the suit, plaintiff filed I.A. No. 783 of 1990 for an order of injunction. It was dismissed by the Court. Though plaintiffs preferred C.M.A. No. 75 of 1990 on the file of Sub Court, Vellore, the same did not succeed. Therefore, they moved an application before lower court to amend the plaint seeking recovery of property on the basis of title. 6. Detailed counter statement was filed by respondent and accepting the counter, lower court dismissed the application on the ground that the amendment will change the nature of property and the present relief is not claimed as an alternate relief. What plaintiffs wanted is to substitute the relief of injunction with the relief of recovery. The same will change the nature of the suit. Lower court also held that petitioner has not come to Court with clean hands and if the application is allowed, the same will adversely affect respondents. Lower court also of the view that the amendment is not based on subsequent events and even on the date of suit, present state of affairs existed. Even in the original plaint, plaintiffs should have asked for the relief of recovery of possession. The application was dismissed. It is against the said order, present revision petition is filed. 7. Notice of motion was ordered and respondents were also heard. 8. After hearing both sides, I feel that the order of lower court requires interference under section 115 of Code of Civil Procedure. 9. It is true that plaintiffs have filed the suit for declaration of title and for consequential injunction. He moved an application for injunction and the same was dismissed and later confirmed in appeal. 8. After hearing both sides, I feel that the order of lower court requires interference under section 115 of Code of Civil Procedure. 9. It is true that plaintiffs have filed the suit for declaration of title and for consequential injunction. He moved an application for injunction and the same was dismissed and later confirmed in appeal. When both the courts concurrently held that plaintiffs have not proved their possession and defendant is shown to be in possession, naturally the relief sought for in the plaint has become in appropriate. 10. On going by the amendment application, I do not think that there is any change in the nature of the suit or in the cause of action. 11. In A.K. Gupta & Sons v. Damodar Valley Corporation , AIR 1967 SC 96 their Lordships held that cause of action for the purpose of suit and for the purpose of amendment are not the same. In para 7 to 9 of the judgment their Lordships have held thus, “7. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon v. Neale , 1887 (19) QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitations see: Charan Das v. Amir Khan , 47 I.A. 255 : AIR 1921 PC 50 and L.J. Leach and Co Ltd v. Jardine Skinner and Co. , 1957 SCR 438 : AIR 1957 SC 357 . 8. , 1957 SCR 438 : AIR 1957 SC 357 . 8. The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistakes Cropper v. Smith , 1884 (26) Ch D 700 (710-711)) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended ( Kisandas Rupchand v. Rachappa Vithoba , 1909 ILR 33 Born 644 at p. 651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda , 1957 SCR 595 (603) : AIR 1957 SC 363 at p. 366. 9. The expression” cause of action” in the present context does not mean “every fact which it is material to be proved to entitle the plaintiff to succeed” as was said in Cooke v. Gill , 1873 (8) CP 107 (116). in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. , 1962 (2) All ER 24. andit seems to us to be the only possible view to take. Any other view would make the rule futile. The words “new case” have been understood to mean “new set of ideas’“ : Dornan v. J.W.Ellis and Co. Ltd. , l962 (l) All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by 1apse of time.” ( Italics supplied) 12. Following the above decision and on going by the averments in the affidavit, I do not think that there is any change in the nature of suit and cause of action. One relief is sought to be substituted by another relief on the basis of same facts. 13. Following the above decision and on going by the averments in the affidavit, I do not think that there is any change in the nature of suit and cause of action. One relief is sought to be substituted by another relief on the basis of same facts. 13. In C.S. Company and others v. Kerala State Electricity Board , 1996 (11) SCC 680 , a suit for settlement of accounts was allowed to be converted as one for damages. Though trial court dismissed the application. High Court allowed it and confirmed by the Supreme Court. In para. 3 of the Judgment the Honourable Supreme Court held thus, “.... it could be seen that as per the original cause of action, the relief now sought for was available in the suit itself. Instead of settlement of account, the respondent is now seeking for damages against the defendant and the damages instead of being ascertained were quantified in paragraph 8-A of the plaint. The amendment does not constitute addition of any new cause of action. The respondent is not introducing any new cause of action nor would it change the cause of action as originally pleaded. Thus, there is neither change of cause of action nor introduction of any new cause of action after the bar of limitation “ 14. Going by the above decision, in the present case, in the original plaint what plaintiff said was that ‘there was an attempt to trespass on 4.5.1990’. In the present amendment they have said ‘when they actually trespassed into the property’. That means, the date 4.5.1990 is fixed as date of trespass and relief of possession could have been claimed in the original plaint itself Amendment application is filed in 1997, within the period of limitation. 15. When orders are passed on the interlocutory application that defendants are in possession, to resolve the dispute between parties, relief of recovery is necessary. As was held in Natesan and another v. Govindasami and another , 1988 (2) LW 397 , which was also a case where amendment was sought after trial court entered finding that defendant is in possession. In that case relief sought for was alternate relief. I do not think that makes any difference. In that case learned Judge held thus, “.... In that case relief sought for was alternate relief. I do not think that makes any difference. In that case learned Judge held thus, “.... This prayer becomes important because of the fact that possession is claimed by the defendants did in case the trial court finds that they are in possession, then the plaintiffs will be without any effective remedy. It is only to avoid such a contingency and to avoid multiplicity of proceedings, the provisions in Order 6, Rule 7, C.P.C, are intended “ (Italics supplied) 16. In the result, the impugned order is set aside and the revision petition is allowed. Petitioner is directed to incorporate the amendment within one month from the date of receipt or production of copy of this order before lower court. Defendant also will be entitled to file additional written statement to the amended portion of the plaint. 16. The revision petition is allowed as above. No costs. Consequently. C.M.P . No. 10374 of 1999 is closed.