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2001 DIGILAW 365 (MAD)

S. Somasundaram v. A. Subramanian

2001-03-22

E.PADMANABHAN

body2001
Judgment :- 1. This revision has been preferred being aggrieved by the fair and decretal order dated 18th November, 1998 made in I.A.No: 46 of 1998 in A.S. No. 161 of 1994 on the file of the Second Additional District Judge, Tirunelveli. 2. Heard Mr. K. Govi Ganesan, learned counsel appearing for the petitioners and Mrs. B. Sivakama Sundari, learned counsel appearing for the respondent. 3. The petitioners herein instituted O.S.No: 195 of 1985 on the file of the Subordinate Judge of Tirunelveli against the respondent seeking for declaration of title in respect of the first and second schedule properties and consequential injunction or in the alternative for recovery of possession. The respondent resisted the suit. Pending the suit, the petitioners moved the trial Court for amendment of the reliefs prayed for. As per the amended plaint the petitioners prayed for declaration that the suit first and second schedule properties absolutely belong to the third schedule Kattalais and the plaintiffs are the varisudars of the said Kattalais and for consequential injunction or alternatively for recovery of possession. It is needless to add that at the instance of the petitioners the said amendment has been allowed after contest. 4. Ultimately after trial the suit came to be dismissed in its entirety. Being aggrieved, the petitioners preferred the regular Appeal A.S. No. 161 of 1994 on the file of the District Court, Tirunelveli. Four years after the presentation of the Appeal, the petitioners moved an application for amendment of the reliefs prayed for and amendment being to declare that the plaintiffs alone are entitled to the suit first and second schedule properties. The said application in I.A.No: 46 of 1998 was resisted by the respondent. The learned Second Additional District Judge by order dated 18th of November, 1998 dismissed the said application while sustaining the objections raised by the respondent. Being aggrieved the present revision has been preferred. 5. Mr. K. Govi Ganesan, learned counsel for the petitioners contended that the order rejecting the application for amendment of the relief would amount to refusal to exercise the jurisdiction vested in the Court below and that the order suffers with illegality. Per contra, Mrs. Being aggrieved the present revision has been preferred. 5. Mr. K. Govi Ganesan, learned counsel for the petitioners contended that the order rejecting the application for amendment of the relief would amount to refusal to exercise the jurisdiction vested in the Court below and that the order suffers with illegality. Per contra, Mrs. B. Sivagami Sundari, learned counsel for the respondent contended that the Court below had rightly dismissed the application and no interference is called for with the order passed by the Court below as the very petitioners having successfully sought for amendment introducing the relief of declaration that the suit property belong to the third schedule Kattalai, cannot now turn around or go back and plead that in the alternative they are entitled to the relief of declaration of title in their favour. 6. It has to be mentioned at this stage that the above revision was taken up for hearing on 23.2.1999. It was allowed by this Court. However, the respondent herein thereafter moved an application to set aside the said order dated 23.2.1999 assigning valid reasons for non appearance, besides pointing, out that though the respondent had entered appearance through counsel, the counsels name had not been shown in the cause list and therefore the order has to be set aside. The learned Judge, who had allowed t he revision petition by order dated 24.6.1999, allowed the said application and set aside the order dated 23.2.1999 passed in the revision petition. As a result thereof the revision restored to file. Hence the present revision is taken up for hearing afresh. The points that arise for consideration are: — (i) whether the amendment setting forth an alternative relief is to be ordered as prayed for? (ii) whether the order of the Court below is sustainable? 7. At the outset it has to be pointed out, the petitioners have not sought for amendment of any portion of the body of the plaint, but they only seek for amendment of the relief portion to include an alternate relief as if they are owners. Whether such an amendment is to be allowed is the substantial question. 8. Concedingly, the petitioners initially filed the suit for declaration of title in respect of the suit 1st and 2nd schedule belonging to them and for consequential relief of injunction or alternatively for recovery of possession. Whether such an amendment is to be allowed is the substantial question. 8. Concedingly, the petitioners initially filed the suit for declaration of title in respect of the suit 1st and 2nd schedule belonging to them and for consequential relief of injunction or alternatively for recovery of possession. After some time thereafter the very petitioners applied for amendment of the plaint deleting the relief of declaration of title prayed for in their favour and to substitute the same with the relief that the suit plaint schedule properties 1 and 2 belong to the third schedule kattalai. In other words, the petitioners as plaintiffs had given up their claim of their title to the suit properties and they have set up title in the third schedule Kattalai. The said suit has been dismissed after contest on merits. 9. Pending the first appeal, the present amendment application has been filed whereby apart from retaining the relief of declaration that the suit properties belong to the their schedule kattalai, the petitioners prayed for an alternate relief viz., “alternatively the suit properties belonging to the plaintiffs”. This amendment has been rejected. In other words, the petitioners gave up their plea that the properties are theirs, but set up title in the third schedule Kattalai at the stage of the suit. Even before the first appellate Court, the petitioners have merely sought for an alternate relief which they have already given up at the first instance before the trial Court by way of present amendment application. 10. Having set up title in the third schedule kattalai and having not moved for any alternate basis or alternate case in the body of the plaint, it is too late in the day for the petitioners to seek for alternate relief that the petitioners are entitled to declaration of title if for any reason the relief that the suit properties belong to the third schedule Kattalai is rejected. I am afraid such an amendment cannot be allowed in the light of the very conduct of the petitioners. If such an amendment is allowed it would enable the petitioners to blow hot and cold. In the guise of introducing an alternate prayer, the petitioners not only convert the very claim and cause in the suit as well as nature and basis of the claim. 11. If such an amendment is allowed it would enable the petitioners to blow hot and cold. In the guise of introducing an alternate prayer, the petitioners not only convert the very claim and cause in the suit as well as nature and basis of the claim. 11. When the petitioners had admitted that they have no title and set up title in the third schedule Kattalai by amendment, which admission of the petitioners/plaintiffs cannot be allowed to be withdrawn even if it is by way of alternate relief as such withdrawal would amount to totally displacing the very case of the petitioners and it would cause the respondent to irretrievable prejudice. In Heeralal v. Kalyanmal reported in 1998 (1) SCC 278 = 1998 1 L.W. 340) it has been held thus: — “The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that a part, the said decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spg. & Wvg. Mills Co. Ltd. v. Ladha Ram & co. , ( 1976 (4) SCC 320 = (1977) 90 L.W. 8 S.N). In that case Ray C.J., speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three Learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such with drawal would amount to totally displacing the case of the plaintiff and which would cause Him irretrievable prejudice. Unfortunately the aforesaid decision of the three member Bench of this Court was not brought to the notice of the Bench of two learned Judges who decided the case in Akhsya Restaurant. In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observation in the decision in Akhsya Restaurant proceeded on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three member Bench of this Court in Modi Spinning is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiffs case and cause him irretrievable prejudice.” 12. It may be that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be found out on the alternate plea it could be granted. If the facts are admitted in the plaint and relief could be granted to the plaintiff on the basis of evidence, though inconsistent pleas were raised, amendment of pleadings can be made provided the petitioners plea is based on their title even alternatively. The entire plaint claim, as was instituted is based on title as it was claimed that the third schedule Kattalai is the owner of the property. Even alternatively also it is not open to the petitioners to claim that the petitioners in their individual capacity are entitled to the suit property. The amendment sought for constitute advantage of a new cause of action. It would change the cause of action and it would amount to introduction of a new cause. 13. Inconsistent and contradictory allegations in negation to the admitted position or facts or mutually destructive allegation of facts should not be allowed to be incorporated by means of amendment to the pleadings even in respect of alternate relief as well. The proposed amendment should not cause prejudice. No amendment should be allowed which amounts to or results in deviating the legal rights accruing to the opposite party. 14. In Narayana Pillai v. Parameswaran Pillai reported in 2000 (1) SCC 712 , the Apex Court held thus: — “Para. The proposed amendment should not cause prejudice. No amendment should be allowed which amounts to or results in deviating the legal rights accruing to the opposite party. 14. In Narayana Pillai v. Parameswaran Pillai reported in 2000 (1) SCC 712 , the Apex Court held thus: — “Para. 4 This Court in A.I. Gupta & Sons Ltd v. Damodar Valley Corpn ( AIR 1967 SC 96 ) held: “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. Neal (1887) 19 QBD 3940. 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 limitation: See Charan Das v. Amir Khan (AIR 1921 PC 50 = 13 L.W. 49) and L.J Leach and Co., Ltd. v. Jardine Skinner and Co. , ( AIR 1957 SC 357 ). 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)) 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 Shilwant (ILR (1909) 33 Bom 644). 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 Cooks v. Gill (1873 8 CP 107) in a different context for if it were so, no material fact could even 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. 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 Corpn, Ltd., (1962 2 All ER 24 (CA) and it 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’. Donnan v. J.W. Ellis and Co. Ltd., (1962 (1) All ER 303 (CA). 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 lapse of time”. Again in Ganga Bai v. Vijay Kumar ( 1974 (2) SCC 393 ) this Court held: “The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.” In Ganesh Trading Co. v. Moji Ram ( 1978 (2) SCC 91 ), it was held: “4 It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting them. Even if a party or its counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.” “All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the originallis was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time.” 15. All amendments of the pleadings should be allowed which are necessary for determination of the real controversy in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegation of fact should not be allowed to be incorporated by means of amendment to the pleading. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by cost. No amendment should be allowed which amounts to or results in deviating a legal right accruing to opposite party on account of lapse of time. 16. On the facts of the present case even the alternate relief which was the relief which was prayed for by the petitioners originally and which had been deleted at the first instance by the petitioners cannot be now allowed to be raised at the first appellate stage as it would not only introduce a new but also inconsistent case, besides withdrawal of the admission regarding title as amended. It cannot be stated that the present proposed amendment is only to supply a omission. The alternate relief also cannot be allowed to be introduced in the light of the earlier conduct of the petitioners and their seeking for amendment by the earlier action that the suit properties belong to the third schedule kattalai and on that basis contested the suit proceedings. Further, no alteration or amendment had been sought for in respect of the body of the plaint, nor even basis for the same had been pleaded. 17. In the circumstances this Court holds that the court below had rightly dismissed the application. Further, no alteration or amendment had been sought for in respect of the body of the plaint, nor even basis for the same had been pleaded. 17. In the circumstances this Court holds that the court below had rightly dismissed the application. If amendment is ordered as prayed for it would amount to allowing the petitioners to plea not only an inconsistent case, but also it would introduce a new cause and a totally different claim even if it is pleaded as an alternate relief. Further it would amount to withdrawal of the stand or the plea regarding title which was given up. 18. In the circumstances, this Court holds that no interference is called for in this Civil Revision Petition as the rejection of the application by the Court below in no way suffers with illegality or material irregularity or error of jurisdiction. Hence this Civil Revision Petition fails and it is dismissed. The parties shall bear their respective costs. 19. It is needless to add that the Court below shall proceed with the First Appeal and dispose of the same on merits without further delay.