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2003 DIGILAW 1269 (MAD)

Rajavelu and others v. Mani and others

2003-08-08

S.K.KRISHNAN

body2003
ORDER: This revision petition has been filed by defendants 2 to 6 against the fair and decretal order dated 10.2.2003 made in I.A.No.193 of 2003 in O.S.No.246 of 1992 on the file of the Learned District Munsif, Tiruchengode. 2. As against the defendants 2 to 6, one Ramasamy Gounder instituted a suit for permanent injunction in respect of the suit property. On receipt of summons, the defendants appeared in the said suit and thereafter filed written statement. A written statement was filed by the 5th defendant and it was adopted by other defendants. An additional written statement was also filed by the 4th defendant and the same was adopted by the defendants 2, 3, 5 and 6. 3. During trial, the 6th defendant filed a petition under O.5, Rule 17 and Sec.151 of Civil Procedure Code praying the Court to grant leave to amend the additional written statement. A counter statement has also been filed by the 5th respondent/5th defendant in the said petition. After enquiry, learned Munsif, Tiruchengode dismissed the said petition. Challenging the said order, the present revision has been filed. 4. Heard the learned counsel for the petitioners as well as the respondents. 5. The only point that arises for consideration in this civil revision petition is whether the fair and decretal order passed by the learned District Munsif on 10.2.2003 in I.A.No.193 of 2003 is sustainable in law? 6. It is stated by the petitioners/defendants that the first plaintiff, Ramasamy Gounder, who subsequently died, agreed to allow the defendants to use the suit cart track in Muchalika dated 22.9.1992. It is stated that due to the typhographical error crept in the additional written statement filed by the defendants the date of Muchalika was wrongly mentioned as 22.2.1992 instead of 22.9.1992. 7. It is contended by the petitioner/defendants that taking advantage of the said typographical error in the additional written statement, the respondents/plaintiffs have stated that they have never executed any such Muchalika as stated supra. With regard to the amendment of the date of Muchalika, the 6th defendant has stated various reasons for amendment. It is pointed out by the 6th defendant that unless the date of Muchalika is amended, they will be put to irreparable loss and hardship. 8. It is further contended by the petitioners/defendants that even if the proposed amendment is carried out it would not alter the basic structure of the suit. It is pointed out by the 6th defendant that unless the date of Muchalika is amended, they will be put to irreparable loss and hardship. 8. It is further contended by the petitioners/defendants that even if the proposed amendment is carried out it would not alter the basic structure of the suit. It is pointed out that the petitioners/defendants sought permission only to amend the month of Muchalika and it does not affect the basic structure of the suit. 9. It is contended by the learned counsel for the respondents that P.W.1 has denied the execution of any document dated 22.2.1992 during his examination. Since P.W.1 denied the said execution of the document on that particular day, to defend the same, the petitioners/defendants now want to make an amendment in their additional written statement. 10. It is pointed out that the petitioners/defendants would have taken effective steps to produce the disputed Muchalika at the time of filing of the additional written statement, if they are more particular about the same. 11. It is further contended that the proposed amendment sought for by the petitioners/defendants would definitely affect the basic structure of the suit and the cause of action for the suit will also be affected. In such circumstances, the learned counsel for the respondents would contend that the said proposal amendment is not permissible under law. 12. Further, it is contended that the petitioner/defendants have not produced the alleged Muchalika before the Court so long as the first plaintiff was alive, who was the executor of the said document and only after the cross examination of P.W.2, the written statements have been filed. Under such circumstances, the respondents would vehemently contend that the proposed amendment should not be carried out for the above said reasons. 13. For seeking the proposed amendment in respect of the date, it is stated by the petitioners that the facts regarding enjoyment of the Court track by the petitioners/defendants, which was admitted by the respondent/plaintiffs, and the existence of Muchalika have been referred in the said additional written statement. However, due to the typographical error the date of execution of Muchalika was mentioned wrongly in the additional written statement on 22.2.1992 instead of 22.9.1992. However, due to the typographical error the date of execution of Muchalika was mentioned wrongly in the additional written statement on 22.2.1992 instead of 22.9.1992. It is further contended that taking advantage of the said error crept in the additional written statement now the respondents denied that they have not executed any Muchalika on that particular date. Therefore, in order to rectify that typographical error the proposed amendment is indispensable. 14. It is further contended by the petitioners/defendants that the proposed amendment would not change the basic character of the suit and the respondents/plaintiffs will in no way suffer due to the said amendment. In support of their contention the learned counsel appearing for the revision petitioners relied on the following decisions. 15. In Palniammal v. V.K.Ramanathan and four others, (2002)1 C.T.C. 618 , the learned Judge, after taking into consideration of catena of decisions and the principles laid down therein, sums up the following legal positions: “16. To sum up the legal position: (1) The power to allow amendment is wide and hence the Court should not adopt hyper technical approach but on the other hand liberal approach should the general rule particularly in cases where the other side can be compensated with costs. (2) The general rule is that the party is not allowed to set up new case or new cause of action. (3) Technicalities of law should not be permitted to hamper the administration of justice between the parties and amendments are allowed in the pleadings to avoid multiplicity of litigation. (4) Courts cannot go into the truth or falsity of the proposed amendments sought for at the time of considering the application for amendment. (5) 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 original lis was raised or defence taken. (6) All relieves ancillary to main relief and reliefs which are in the nature of additional reliefs should be allowed as general rule. (7) Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed but however, the party who is put to inconvenience should be suitable paid. (6) All relieves ancillary to main relief and reliefs which are in the nature of additional reliefs should be allowed as general rule. (7) Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed but however, the party who is put to inconvenience should be suitable paid. The Court has to only see that the error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued. (8) The delay in filing petition for amendment should be properly compensated by cost and the error or mistake, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.” 16. In P.V.Atchuthan v. The Balussery Benefit Chit Fund (Pvt) Limited, (2002)1 M.L.J. 229, the learned Judge observed as follows: "4. Courts have been liberal in allowing parties to amend their pleadings except when such amendment will prejudice the other party or deprive them of any right that had accrued to them. In fact, O.6, Rule 17 of Civil Procedure Code gives wide latitude to the party who approaches the Court for amendment of the pleadings. The words used are "at any stage of the proceedings." A perusal of the written statement also shows that at para 9, the petitioner had stated as follows: "This defendant further states that unleads the account books and other connected papers of the plaintiff firm as well as Balussery Polymers Pvt. Ltd. are produced before this Hon’ble Court, a clear picture will not be brought to note." This amendment has been sought for after a perusal of the account ledger, which shows the transfer of suit amount from one account to the other. No doubt the counsel for the respondent submits that nothing turns on this and this is the normal practice. But, if as urged by the learned counsel for the petitioner, he is able to demonstrate that the transfer was unilateral transfer not in accordance with law or that the transfer into the chit fund account would oust the jurisdiction of this Court, that would be an amendment which is necessary to determine the real controversy between the parties. But, if as urged by the learned counsel for the petitioner, he is able to demonstrate that the transfer was unilateral transfer not in accordance with law or that the transfer into the chit fund account would oust the jurisdiction of this Court, that would be an amendment which is necessary to determine the real controversy between the parties. Allowing the amendment would, in no way prejudice the respondent and except to state that there is a gross delay and laches, nothing is advanced either in the counter or in the arguments to show how the respondents would be prejudiced by the amendment." 17. In R.Mohanasundasram and another v. Sri Anjaaveya Sri Ragavendra Temple represented by its Managing Trustee T.V. Ragothaman and others, (2002)1 M.L.J. 815 , the learned Judge observed as follows: "12. One of the conditions for entertaining the civil revision petition is that the order impugned has caused failure of justice or irreparable injury to the party against whom it was made if the petitioner/defendants feel that if there is irreparable injury caused to him by allowing the amendment which gives rise to fresh relief, this Court would certainly entertain the revision and pass appropriate orders." 18. In K.G.Venkatraman v. T.Sridevi, (2002)3 L.W. 123 , the learned Judge observed as follows: "8. The reading of the above guidelines and the interpretations relating to the purpose and object of O.6, Rule 17, C.P.C. as found in the above decisions would reveal that the general rules 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 cause or case of action is barred. But, it is well recognized that where the amendment does not constitute the additional of a new cause or raise a different case, but amounts to no ore 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. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised notwithstanding the law of limitation." 19. In Person Publicity represented by its Partner K.A.Ajmal Bhukari v. The Corporation of Madras represented by its Commissioner, (2003)1 C.T.C. 219 , the Division Bench of this Court held as follows: "10. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised notwithstanding the law of limitation." 19. In Person Publicity represented by its Partner K.A.Ajmal Bhukari v. The Corporation of Madras represented by its Commissioner, (2003)1 C.T.C. 219 , the Division Bench of this Court held as follows: "10. Such a finding of the learned judge is contrary to the decision of the Apex Court in Sampath Kumar v. Ayyakanu, 2002 A.I.R. S.C.W. 2925. The Hon’ble Judges considered the correctness of the order passed by the learned Judge of this Court can rejection of the Application for amendment on the ground of delay. In the said case, the plaintiff filed an Application for amendment proposing a cause of action which had arisen to the plaintiff during the pendency of the suit. While considering the Appeal preferred on the said order of this Court, the Apex Court held as follows: “O.6, Rule 17 of the C.P.C., confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendment as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the same to which the hearing in the suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case prejudicial it can be assumed that the defendant is not prejudicial because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter case the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 20. With regard to the proposed amendment the learned counsel appearing for the revision petitioners referred the above stated legal positions. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.” 20. With regard to the proposed amendment the learned counsel appearing for the revision petitioners referred the above stated legal positions. The learned counsel would point out that considering the facts and circumstances of the case and also considering the legal positions referred in the above cited decisions the proposed amendment has to be allowed to establish the case of the defendants. 21. It is contended by the respondents/plaintiffs that they have already disputed the said Muchalika when the additional written statement was filed. Moreover, it is pointed out that the defendants have filed their additional written statement and referred about the existence of Muchalika only after the expiry of 3 years of its existence. Moreover, even though the defendants have contended that with regard to the necessity of amendment, they have not filed the alleged document along with the additional written statement. 22. It is pointed out that the petitioners/defendants have claimed certain rights only on the basis of the date of execution of the alleged Muchalika In such circumstances, if the proposed amendment is carried out as sought for by the petitioners/defendants, the respondents/plaintiffs will be put to irreparable loss and hardship. 23. It is pointed out by the learned counsel appearing for the respondents that P.W.1 and 2 have already denied the convening of panchayat on 22.2.1992. In this juncture the learned counsel would point out that the alleged document might have created by the defendants in order to defeat the rights of the plaintiffs by way of seeking the said amendment to fill up the lacuna. 24. In such circumstances, the said amendment should not be carried out. It is pointed out that the said petition was filed by the defendants only at the stage of cross-examination of D.W.1. 25. It is pointed out by the learned counsel appearing for the revision petitioners that liberal attitude has to be followed by the Court while considering the relief of amendment. It is the settled legal position in the above stated decisions. 26. 25. It is pointed out by the learned counsel appearing for the revision petitioners that liberal attitude has to be followed by the Court while considering the relief of amendment. It is the settled legal position in the above stated decisions. 26. However, in considering the facts and circumstances of the case on hand, such liberal attitude as referred in the above decisions could not be adopted in this case for the reason that the said proposed amendment would affect the basic structure of the plaintiffs case. Moreover, the said amendment sought for by the petitioners/defendants only at the belated stage. It is seen that the learned District Munsif has elaborately discussed the various facts connected with this case. 27. In such circumstances, this Court is not inclined to grant the relief as prayed for by the petitioners. 28. In result, the revision fails and the same is dismissed. No costs. Consequently, the C.M.P. No.3857 of 2003 is also dismissed.