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2005 DIGILAW 1022 (MAD)

Chinnasamy Reddiyar v. M. Pothammal & Others

2005-07-06

A.KULASEKARAN

body2005
Judgment :- (Petition under Article 227 of the Constitution of India praying this Court to set aside the order passed in I.A.No.186 of 2004 in O.S.No.232 of 2004 dated 13.04.2005 on the file of the District Munsif Court, Bodinayakkanoor.) The revision petitioner is the eighth defendant in the suit, which was filed by the first respondent in O.S.No.232 of 2004 praying for declaration and injunction. In the said suit, three schedules of property were mentioned. Pending suit, the first respondent herein has filed I.A. No. 186 of 2004 for amendment of the plaint, which was allowed by the trial court, hence this revision petition. 2. The first respondent herein has filed the above said interloctuary application under Order VI Rule 17 CPC seeking permission to amend the second schedule of the plaint, which according to her does not contain the entire details and in order to furnish full description, she sought for amendment by way of including 4th schedule, however, the boundaries mentioned in the second schedule covers all the properties, hence the same would not amount to including new property or new cause of action. 3. The revision petitioner herein has opposed the said application stating that the first respondent is though entitled to the patta land, which is comprised in Survey No.866/2 not entitled to the lands comprised in Survey No.866/3 as the same is in enjoyment of the petitioner and other defendants for over fifteen years, hence the amendment sought for by the first respondent, to include the new survey No.866/3, if it is allowed would enable the first respondent herein to induct a new property and new cause of action, hence it is untenable, besides that the said application was filed after trial was commenced. 4. The case of the first respondent is that she has mentioned the boundaries of second schedule property in the plaint as bounded on the South by: Uthamparai River, North by; Common stream, East by; Survey No.863 and West by; Uthamparai river, but failed to mention the survey No.866/3, which is located within the said boundary; that the land to an extent of 48 cents comprised in Survey No.866/3 has been in possession and enjoyment of her predecessor in title and the sale deed executed in her favour also allegedly speaks about the same. She also relied on the release deed dated 05-01-1957 executed by one Habibullah Meeran in favour of her predecessor in title releasing the said 48 cents in Survey NO.866/3, which was in his encroachment. It is the further case of the first respondent that the petitioner herein has disputed that the said 48 cents of land comprised in Survey No.866/3 alleging that it would not form part of the properties within the boundaries to the second schedule property, hence, she seeks permission to describe the said property as fourth schedule property. 5. The facts mentioned above establishes that the first respondent fails to mention the survey No.866/3 in the second schedule, though she has mentioned the other survey number and bimash number. Hence, the averment of the revision petitioner that the amendment seeks to introduce new property and new cause of action is untenable. 6. Under Rule 17 of Order VI CPC, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The court must keep in mind while allowing the amendment that it does not cause injustice to the other side and being necessary for the purpose of determining the real question in controversy between the parties. The amendment can be refused only when the other party cannot be placed in the same position as if the pleadings had originally been correct but the amendment would cause him an injury which cannot be compensated by costs. Thus, when the plaintiff seeks to amend by setting up a fresh claim in respect of cause of action, which since the institution of the suit has become barred by limitation, the amendment should be refused. The general Rule in the matter of allowing the amendment is that all the amendments are to be allowed, which do not purport to set up a new case and which would not work injustice to the otherside and will be necessary for the purpose of determining the real question in controversy between the parties. The general Rule in the matter of allowing the amendment is that all the amendments are to be allowed, which do not purport to set up a new case and which would not work injustice to the otherside and will be necessary for the purpose of determining the real question in controversy between the parties. Delay by itself is no ground for refusing amendment unless there is a strong reason to think that the amendment is malafide and is designed to delay the proceedings or prolong the litigation. Followed (A.K. Gupta and Sons Ltd Vs. Damodar Valley Corporation) AIR 1967 SC 96 wherein it was held in Para Nos. 7 and 8 as follows: - "7) It is not in dispute that at the date of the application for amendment a suit for a money claim under the contract was barred. 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 difference case, but amounts to no more than a difference 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 47 Ind App 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)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. Racappa Vithoba, (1909) ILR 33 Bom 644 at p. 651, approved in Pirgonda Hongonda Patil v Kalgonda Shidgonda, 1957 SCR 595 (603): ( AIR 1957 SC 363 at p.366)" 7. Applying the above said ratio in this case, this Court is of the view that the first respondent failed to mention the entire details of the second schedule of property despite the fact boundary is mentioned. The amendment sought for, in crux, is to mention the details of the survey number which is located within the boundary, of course, the case of the petitioner is it is not within the said boundary, hence, the first respondent sought permission to incorporate 4th schedule to the suit. Indeed, the 4th schedule cannot be required as stated by the first respondent, however, but for furnishing clear details of the property in dispute, there is nothing wrong in allowing the first respondent to incorporate a new schedule. The trial court also discussed the case elaborately and allowed the application for amendment. 8. In the result, the revision petition is dismissed. No costs. Connected CMP is closed. Considering the facts and circumstance of the case, the revision petitioner is permitted to file his additional written statement, if he is so advised.