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2003 DIGILAW 1747 (MAD)

Sellammal (now deceased) and others v. M. Natesan

2003-10-28

PRABHA SRIDEVAN

body2003
ORDER: This revision is against the order allowing the amendment of plaint. 2. The properties originally belonged to one S.K.Marimuthu Pillai who died in 1973. He had three sons. There is a third son. One son is the respondent, the other son was one Rathinam and the petitioners are his wife and three sons. The respondent filed O.S.No.93 of 1991 for bare injunction. It has now been renumbered as O.S.No.448 of 1991. The respondent claimed to be in possession of the suit property pursuant to a registered release deed dated 20.4.1982 executed by his brother Rathinam as guardian of his minor sons and the 2nd petitioner herein, the major son. Of course, these details were not spelt out in the plaint originally. In May, 1990, when the petitioners came to know of this release deed, they issued a notice demanding partition on 13.5.1990. They also filed a suit for partition in O.S.No.691 of 1991 on 17.7.1991. The respondent was served but did not file his written statement and an ex parte decree was passed in the partition suit on 21.12.1992. The application to set aside the ex parte decree was dismissed and this has been confirmed in revision. Therefore, the ex parte preliminary decree for partition has become final. It appears that the respondent has subsequently filed another suit for declaration that the decree obtained in the partition suit is vititated by fraud. This suit is pending. Thereafter the petitioner filed I.A.No.478 of 2002 for amendment of plaint deleting the original paragraphs 3 and 4 and substituting them with new paragraphs which according to the respondent clarify the position and also added the relief of declaration. It is against the order passed allowing the amendment, this revision has been filed. 3. Learned counsel for the petitioner would submit that by virtue of the amendment, the original plaint is virtually deleted and a fresh plaint is introduced. The rights that have accrued to the petitioner are sought to be defeated by this amendment. The amendment is barred by limitation and therefore ought not to have been allowed. 4. Learned counsel for the petitioner also submitted that the respondent having deliberately allowed the suit for partition to be decreed ex parte and having failed in his attempt to have the ex parte decree set aside, has now filed this application with an oblique motive. The amendment is barred by limitation and therefore ought not to have been allowed. 4. Learned counsel for the petitioner also submitted that the respondent having deliberately allowed the suit for partition to be decreed ex parte and having failed in his attempt to have the ex parte decree set aside, has now filed this application with an oblique motive. It was also submitted that the Court below suffered from the misconception that all pre-trial amendments should be allowed and failed to see that while pre-trial amendments are viewed more liberally it does not mean that the discretion to consider whether the amendment should be allowed is not there. According to the learned counsel for the petitioner by allowing the amendment, the petitioners are prejudiced by having to fight a new case but also run the risk of being deprived of the rights which had accrued to them. Learned counsel submitted that if this Court comes to the conclusion that the amendment should be allowed and the merits of the amendment should not be considered at this stage, the direction given in Sampath Kumar v. Ayyakannu, (2002)4 C.T.C. 189 must be adopted, so that the amendment would relate not to the date of the suit but to the date of the amendment alone. 5. Learned counsel for the respondent on the other hand would submit that there is no change in the frame of suit and that the amended paragraphs only seek to elaborate what was originally placed and for this purpose reliance was placed on Fritiz T.M.Clement v. Sudhakaran Nadar, A.I.R. 2002 S.C. 1148, wherein it was held, that when the original plaint was cryptic about the agreement between the parties which was the basis of the suit, the amendment seeking incorporation of more details must be allowed though it was sought for belatedly and that the amendment instead of prejudicing the defendant would only place the defendant in a better position to defend his case. 6. As regards the question of res judicata, learned counsel submitted that the Court below had left the question of res judicata and this had not been raised in the amended plaint and therefore that question need not loom large in the mind of the Court while deciding the issue on hand. 7. 6. As regards the question of res judicata, learned counsel submitted that the Court below had left the question of res judicata and this had not been raised in the amended plaint and therefore that question need not loom large in the mind of the Court while deciding the issue on hand. 7. As regards the question of limitation, learned counsel relied on Ragu Thilak D.John v. S.Rayappan, A.I.R. 2001 S.C. 699 and submitted that the issue of limitation could be raised after allowing the amendment and since the plea of limitation being disputed could always be made, the subject matter of the issue has to be decided as held by Supreme Court in the above decision. Reliance was also placed on Jayabaskar, P. v. Saraswathi, (2001)2 C.T.C. 334, where it was held that even after the amendment related back to the date of the plaint if the claim is already barred, that can always be decided by the trial Court and unless the discretion in allowing the application for amendment is found to be illegal or capricious, ordinarily under Sec.115, C.P.C., this Court will not interfere. 8. The respondent had filed the suit originally for the relief of bare injunction. It is true that in the plaint, he had referred to his brother’s wife and children as utter strangers. However, he had referred to the registered release deed and asserted his possession and title pursuant to that and had also claimed to have discharged certain debts in accordance with the terms of the release deed. Subsequently, after 8 years, to be precise, he filed this application for amendment where he acknowledges the relationship between the parties and sets out what according to him are the circumstances under which the release deed was executed. In this case, no doubt some averments are included stating that the property was a joint family property and that the release deed is binding on all the members of the joint family property which was not the case in the plaint that was originally filed. In this case, no doubt some averments are included stating that the property was a joint family property and that the release deed is binding on all the members of the joint family property which was not the case in the plaint that was originally filed. But however when the release deed has been filed along with the plaint that was originally filed as seen from paragraph 3 there can be no doubt that the plaintiff will have to defend any attack made by the petitioners herein against the release deed and must establish that the release deed is a genuine one and therefore to that extent it cannot be said that this amendment introduces a new case. The amendment only elaborates the circumstances, which the respondent would any way have to establish by sufficient evidence what he had pleaded in the plaint that was originally filed. 9. Learned counsel for the petitioner would submit that the 2nd petitioner was not a major on the date of the release deed and that even if he was a minor, the father had no authority or right to execute the release deed on behalf of the minor son. These are valid grounds that can be raised as points for defence in his written statement. 10. It appears that the additional written statement has also been filed. The case in hand and the judgment cited in Sampath Kumar v. Ayyakannu, (2002)4 C.T.C. 189 are almost identical and therefore we may apply it without any hesitation. The chronological sequences of events that was narrated by the learned counsel for the petitioner clearly shows that the petitioner has filed a cryptic plaint devoid of details initially and after 8 years, now wants to fill in the details and elaborate his original plaint. He may be permitted to do so subject to the conditions that were laid down in the above decision. 11. As submitted by the learned counsel for the petitioner, I do not think that the above decision lays out the proposition that all pre-trial amendment shall be allowed. It is clearly stated that pre-trial amendments are allowed more liberally. He may be permitted to do so subject to the conditions that were laid down in the above decision. 11. As submitted by the learned counsel for the petitioner, I do not think that the above decision lays out the proposition that all pre-trial amendment shall be allowed. It is clearly stated that pre-trial amendments are allowed more liberally. It is explained why a liberal attitude is taken in the subsequent sentence which is “it can be generally assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case.” But however, in this case, the amendment is allowed for the reasons already stated in the foregoing paragraph. But since the petitioners have raised the question of limitation and also that by allowing the amendment the rights that have accrued to them will be denied, the impugned order is modified to the extent that the amendment shall be deemed to have been brought on the date on which the application seeking the amendment was filed. This is in accordance with paragraph 10 of the above judgment which is extracted hereunder. “10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relations back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking the amendment was filed (See: observation in Siddalingamma and another v. Mamtha Shenoy, (2001)8 S.C.C. 561 .” 12. In that case, the amendment application was filed after almost 11 years after the date of the institution of the suit. The relevant observation in that decision is that when the plaintiff is not debarred from instituting the new suit seeking relief of declaration, it would be a sound exercise of discretion to permit the amendment by adding the relief of declaration in order to avoid multiplicity of suits. The relevant observation in that decision is that when the plaintiff is not debarred from instituting the new suit seeking relief of declaration, it would be a sound exercise of discretion to permit the amendment by adding the relief of declaration in order to avoid multiplicity of suits. The present case is similar and as has been held in the above decision that, “the merits of the averment sought to be incorporated by way of amendment are not to be judged at this stage of allowing the prayer for amendment”. 13. Learned counsel for the petitioner submits that the additional written statement has already been filed but without prejudice to his rights in this civil revision petition. Since the additional written statement has already been filed, it is not necessary for leave to be granted in this civil revision petition for filing additional written statement. 14. The civil revision petition is allowed partially and the prayer for amendment shall be deemed to have been made on the date for which the application for amendment was filed. The costs is fixed at Rs.2,000.