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2004 DIGILAW 181 (MAD)

Balachandran Nair v. Kamalakshi Amma & Others

2004-02-13

M.KARPAGAVINAYAGAM

body2004
Judgment :- The order dismissing the application filed by the petitioner seeking for amendment of the plaint during the pendency of the appeal before the appellate Court is the subject matter of challenge in this civil revision petition. 2. The petitioner filed the suit for declaration, demarcation and for other relieves. After trial, the preliminary decree as well as the final decree was passed. Not satisfied with the decree, the petitioner filed an appeal before the lower appellate Court. During the pendency of the appeal, he filed an application under Order VI Rule 17 C.P.C. seeking for amendment of the plaint. On considering the objection raised by the defendants, the appellate Court dismissed the same holding that the amendment cannot be permitted as the same would change the entire character of the suit. Assailing the same, this civil revision petition has been filed. 3. Mr.Sreekumaran Nair, the learned counsel for the petitioner, while attacking the impugned order on the strength of the decisions in LAKHI RAM v. TRIKHA RAM (A.I.R.1998 S.C.1230) and PUNJAB NATIONAL BANK v. INDIAN BANK AND ANOTHER (2003(4) L.W.347 (SC), would contend that the power for amendment could be liberally exercised even at the appellate stage. As such, the amendment sought for by the petitioner during the appellate stage for the inclusion of one more property would be appropriate as it would avoid the multiplicity of proceedings. 4. On the other hand, Mr.S.Subbiah, the learned counsel for the respondents 1 and 9 to 14 would cite the judgments in BALASUNDARA v. MUTHUVENKATACHALA (A.I.R.1954 MADRAS 799), C. MUTHUPANDIAN v. RAMASAMY THEVAR (A.I.R.1995 MADRAS 277) and AKKANAGAMMA v. NAGESWARIAH A.I.R.1968 MYSORE 266) and would submit that the amendment cannot be permitted, that too, at the appellate stage, as allowing the amendment would tantamount to change the character of the suit and also to create a new cause of action and consequently, it has to be held that there is no infirmity in the impugned order. 5. I have heard the counsel for the petitioner as well as the respondents and gone through the impugned order and other records and also the citations referred to supra. 6. 5. I have heard the counsel for the petitioner as well as the respondents and gone through the impugned order and other records and also the citations referred to supra. 6. The guidelines given in the above decisions are as follows: (1) If the amendment is sought introducing totally a new case and when the effect of allowing the amendment would be to remand the suit for taking further evidence, the said amendment should not be allowed. (2) By the proposed amendment, if a new claim is made, on a new basis constituted by new facts with a new cause of action, the Court should not allow the said amendment. (3) The expression "cause of action" would mean, a new claim made on a new basis constituted by new facts. The words "new case" should be understood to mean "new set of ideas". No amendment should be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. (4) To permit the parties at the appellate stage to amend the pleadings without first convincing the appellate Court that there is an error in the decree of the trial Court would be to relieve them from the consequences of the trial Court's order. The type of error which persuades the appellate Court to permit the parties to amend the pleadings is an error which is initially that of the parties themselves because having invited the decision of the trial Court upon pleadings originally presented by them, it is not open to them straight-way to tell the appellate Court that they be relieved by an order passed by the trial Court in original pleadings. (5) An amendment would generally not be disallowed except where a time barred claim is sought to be introduced or where it changes the nature of the suit itself or it is mala fide or the other party cannot be placed in the same position had the plaint been originally filed correctly and the other side has lost right of a valid defence by subsequent amendment. (6) When there is no fresh cause of action sought to be introduced by the amendment, there would be no question of causing any injustice to the other party on that account. 7. (6) When there is no fresh cause of action sought to be introduced by the amendment, there would be no question of causing any injustice to the other party on that account. 7. If we apply these guidelines given by various Courts including the Supreme Court to the present facts of the case, it cannot be stated that a new case has not been set up by way of amendment. 8. The reading of the petition seeking for the amendment would show that the plaintiff, the petitioner wanted the Court to delete paragraph 4 of the plaint and substitute the details of the property which is subject matter in O.S.No.362 of 1958 in which the final decree was passed on 13.10.1960. 9. The nine paragraphs which were given in the petition filed under Order VI Rule 17 and Section 151 C.P.C. would show that the plaintiff wanted to delete paragraph 4, second part of paragraph 6 and a portion of paragraph 7 and some sentences in paragraph 8, paragraph 10, paragraph 11 and substitute new things. It is also requested that the reliefs in paragraphs A and B may be re-casted. Thus, it is clear that the plaintiff wanted to introduce a new set of facts raising a new cause of action which would necessary make the other party to lose the right of the valid defence by subsequent amendment. 10. Once we find that there is a new case set up raising a new cause of action, the amendment cannot be allowed. 11. Further, the reason for introduction of this amendment given in the affidavit filed before the trial Court is that the plaintiff was not aware of the suit in O.S.No.362 of 1958 and the final decree therein at the time of filing the suit and only when the appeal has been filed, he came to know about O.S.No.362 of 1958 by which the share of his father was allotted along with the share of his brothers as plot G1 in the final decree. 12. Even before this Court, in the affidavit filed in C.M.P.No.17621 of 2001 in the main C.R.P.No.3308 of 2001, he has stated that when he filed the suit, he overlooked the judgment in O.S.No.362 of 1958 in which the share of his father was allotted as plot 'G' in the final decree. 13. 12. Even before this Court, in the affidavit filed in C.M.P.No.17621 of 2001 in the main C.R.P.No.3308 of 2001, he has stated that when he filed the suit, he overlooked the judgment in O.S.No.362 of 1958 in which the share of his father was allotted as plot 'G' in the final decree. 13. This Court is at a loss to understand as to how the plaintiff could make such statement, especially when the defendants, the respondents herein filed written statement in this suit mentioning about the suit in O.S.No.362 of 1958 and its final decree allotting plot G1 to the plaintiff as well as to his other brothers. 14. The learned counsel for the respondents also produced a copy of the written statement filed in the suit in O.S.No.662 of 1982, the present suit in which the details about the outcome of the decree in O.S.No.362 of 1958 have been clearly mentioned. Therefore, the assertion made by the petitioner through his affidavit filed before the Court that he was not aware of the said suit in O.S.No.362 of 1958 and the final decree therein at the time of filing this suit, is quite unfortunate. 15. As stated earlier, the amendment cannot be allowed with new pleadings which will change the character of the suit. In addition to that, the reason pleaded for the amendment in the application seeking for amendment under Order VI Rule 17 C.P.C. would not be considered as a bona fide one. 16. At the end of the arguments, the counsel for the petitioner would request this Court to give permission for withdrawal of the suit with a leave to file a fresh suit. In view of the objection raised by the counsel for the respondents on the strength of the decision in K.S.BHOOPATHY v. KOKILA (A.I.R.2000 S.C.2132), I do not find a valid ground to grant the said relief, especially when this Court finds that there was no bona fide reason to seek for amendment. 17. In view of the above reasonings, this Court does not find any error in the impugned order. Therefore, the civil revision petition is dismissed. Consequently, C.M.P.No.17621 of 2001 is also dismissed. No costs.