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2005 DIGILAW 652 (MAD)

Narasammal & Others v. S. V. Gurunathan & Others

2005-04-15

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, filed under Sec.115 C.P.C against the order of the District Munsif, Nilakkottai dated 30.04.2002 made in I.A.No.74 of 2002 in O.S.No.221 of 1997, as stated therein.) This Civil Revision Petition is directed against the order of the District Munsif, Nilakkottai dated 30.04.2002 made in I.A.No.74 of 2002 in O.S.No.221 of 1997, dismissing the Petition filed under Order 6 Rule 17 C.P.C. The Plaintiffs are the Revision Petitioners. 2. O.S.No.221 of 1997: - This Suit was filed by the Plaintiffs for Permanent Injunction relating to the Immovable Suit Properties in S.Nos.124/8, 125/1, 125/2 and S.No.23/2 in Pannaipatti Village, Nilakkottai Taluk. The Plaintiffs and the Defendants are related as under: - ------------------------------------------------------------ | | | | | | | | | Narasimha Naidu Venkitasamy Naidu Ayyappasamy Naidu (died in 1969) D-1 D-2 = Narasammal died died P-1 | | | | | | D-9 D-4 to D-8 | L.Rs of D-2 ---------------- | | Chinnasamy Jaya P-2 P-3 (Genealogy as per Plaint) 3. The Plaintiffs claim Right and Title of the Suit Properties through Family Partition Deed dated 22.01.1952. Case of the Plaintiffs is that in the said Partition, the Suit Properties - "B-Schedule" Properties were allotted to the share of Narasimha Naidu. "C-Schedule" properties were kept in common by the Father-Chinnasamy Naidu and the Son. The said Narasimha Naidu died in 1969. The Plaintiffs being the Wife, Son and Daughter are the Legal Heirs. The Plaintiffs are in enjoyment of the Suit Properties – Item Nos.1, 2 and 4. Suit Item No.3 is in common enjoyment of the Plaintiffs and Defendants 1 and 2. Denying the Title of the Plaintiffs to the Suit Properties, the Defendants 1 and 2 along with the Third Defendant have attempted to cut and remove the Karuvelam and other Trees in the Suit Properties on 15.08.1997. Hence, the Plaintiffs have filed the Suit for Permanent Injunction, restraining the Defendants from interfering with the peaceful possession and enjoyment in the Suit Properties. 4. Claiming absolute Right and Title in the Suit Properties, Defendants 1 and 2 have filed elaborate Written Statement. The Defendants 1 and 2 have claimed Title through the Decree in O.S.No.55 of 1927 (Sub-Court, Dindigul) and A.S.No.57 of 1930 on the file of the District Court, Madurai. According to the Defendants, there was partition between D-1 and D-2 and Mother of D-2 in the year 1934. The Defendants 1 and 2 have claimed Title through the Decree in O.S.No.55 of 1927 (Sub-Court, Dindigul) and A.S.No.57 of 1930 on the file of the District Court, Madurai. According to the Defendants, there was partition between D-1 and D-2 and Mother of D-2 in the year 1934. The Defendants have claimed that the Suit Properties in S.Nos.125/1, 125/2 and the Well in S.No.125/2 belonged to the Second Defendant. Denying the Right of the Plaintiffs, the Defendants have raised objection for the maintainability of the Suit, which has been filed for Bare Permanent Injunction without prayer for declaration of Title. Suit for Permanent Injunction is not maintainable. 5. On the basis of the above pleadings, issues were framed and parties adduced evidence. When the matter was pending Trial, the Plaintiffs have filed I.A.No.74 of 2002 for amending the Plaint for Declaration of their Title and alternative relief of recovery of possession for the relief of Permanent Injunction. In the supporting affidavit, the Plaintiffs have averred that Patta was issued in the year 1983 in the name of the First Plaintiff and that only after filing of the Suit, they came to know that the Second Defendant had obtained the Patta without notice to the Plaintiffs. Further, the Plaintiffs have stated that only after the examination of D-4 as D.W.1, they have come to know about the change in the Revenue Records and hence, the Amendment for Declaration of Title and alternative relief of recovery of possession was sought for. 6. The Defendants / Respondents have filed the Counter Statement contending that the Amendment Petition has been filed belatedly. According to the Defendants, the proposed Amendment for Declaration of Title and the alternative relief of recovery of possession would substantially alter the character of the Suit and that the Plaintiffs are not entitled to fill up the lacuna in the pleadings and in the evidence. 7. According to the Defendants, the proposed Amendment for Declaration of Title and the alternative relief of recovery of possession would substantially alter the character of the Suit and that the Plaintiffs are not entitled to fill up the lacuna in the pleadings and in the evidence. 7. Upon consideration of the contentions of both parties, learned District Munsif dismissed the Amendment Petition mainly on the following grounds: - (i) for the alternative relief of Recovery of Possession, the Plaintiffs / Petitioners ought to have sought for the relief only under Sec.25(a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as the "Court Fees Act") and not under Sec.25(b) of the Court Fees Act; (ii) The Amendment Petition filed at the stage of adducing evidence is belated; (iii) the alternative reliefs sought for by the Plaintiffs / Petitioner would amount to changing the character of the Suit. 8. Assailing the impugned order, the Revision Petitioners / Plaintiffs have preferred this Civil Revision Petition. Submitting that the proposed Amendment for the alternative relief of recovery of possession would not change the character of the Suit, learned counsel for the Revision Petitioners has submitted that the Trial Court ought to have adopted a liberal approach in considering the Amendment Petition. Placing much reliance upon the decision of the Supreme Court reported in SAMPATH KUMAR VS. AYYAKANNY AND ANOTHER (2002 (3) M.L.J. 160), learned counsel has submitted that the proposed Amendment would only change the nature of relief sought for and that the character of the Suit would not in any way to be changed. In support of his contention that the Court ought to have adopted a liberal approach, learned counsel has further relied upon the decision reported in D. RAVI AND OTHERS ..VS.. S. VELLATHAN AND ANOTHER ( 2000 (2) L.W. 246 ) and B.K.N.PILLAI ..VS.. P.PILLAI AND ANOTHER (2000 (2) L.W. 313). 9. In this Revision Petition, the Respondents have been served; but not entered appearance. Service held sufficient for the Respondents. Today, the names of the Respondents have been printed in the cause list. Heard the submissions of the learned counsel for the Revision Petitioners. 10. P.PILLAI AND ANOTHER (2000 (2) L.W. 313). 9. In this Revision Petition, the Respondents have been served; but not entered appearance. Service held sufficient for the Respondents. Today, the names of the Respondents have been printed in the cause list. Heard the submissions of the learned counsel for the Revision Petitioners. 10. Whether the Trial Court was right in dismissing the Amendment Petition interalia finding that the proposed Amendment for Declaration of Title and alternative relief of possession instead of Permanent Injunction changes the character of the suit suffers from serious error is the point that arises for consideration in this Revision Petition. 11. As noted earlier, the Plaintiffs have filed O.S.No.221 of 1997 claiming Title to the Suit Properties – Item Nos.1,2 and 4 through the Family Partition Deed dated 22.01.1952. The said Partition Deed is said to have been effected between Narasimha Naidu and his Father – Chinnasamy Naidu. Hence, the Plaintiffs must have bonafide belief about the Title and filed the Suit for Bare Permanent Injunction. Written Statement was filed by the Defendants denying the Title of the Plaintiffs, and themselves claiming to be in possession of the Suit Properties. The Defendants have claimed Right and Title to the Suit Properties pursuant to the decree in O.S.No.55 of 1927 (Sub-Court, Dindugul) and A.S.No.57 of 1930 on the file of the District Court, Madurai. The Defendants have also taken a plea of ouster and adverse possession. Written Statement was filed by the Defendants soon after the filing of the Suit. No doubt, it would have been better, had the Plaintiffs filed the Amendment Petition immediately after filing of the Written Statement. But, merely because the Amendment Petition was filed at the stage when the Trial was in progress and the Suit being part heard cannot be the reason for declining the proposed Amendment. In view of the contentious pleas raised by the Defendant and the plea of adverse possession, it is just and necessary to afford an opportunity to the Plaintiffs to suitably amend the Plaint. 12.It is well settled that the power to allow the amendment is very wide, which can be exercised at any stage of the proceedings in the interest of justice. Holding that the Courts are to observe quite liberal attitude in the decision reported in B.K.N.PILLAI ..VS.. 12.It is well settled that the power to allow the amendment is very wide, which can be exercised at any stage of the proceedings in the interest of justice. Holding that the Courts are to observe quite liberal attitude in the decision reported in B.K.N.PILLAI ..VS.. P.PILLAI AND ANOTHER (2000 (2) L.W. 313) the Supreme Court has held, "...The purpose and object of Order 6, Rule 17 C.P.C is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But, it is equally true that the Courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation." Thus, the proposed amendment cannot be refused on the ground that it was filed when the Trial was on progress. As held by the Supreme Court, the technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. 13. In the case reported in SAMPATH KUMAR ..VS.. AYYAKANNY AND ANOTHER (2002 (3) M.L.J. 160) in the suit for Bare Injunction, amendment was sought for, for Declaration of Title and recovery of possession. Holding that the pre-trial amendment should be liberally construed and that the proposed amendment for declaration of Title and relief of possession would only alter the nature of relief and would not alter the character of the Suit, the Supreme Court has held thus: - "....In the opinion of the Court, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the Plaintiff. What is sought to be changed is the nature of relief sought for by the Plaintiff. In the opinion of the Trial Court it was open to the Plaintiff to file a fresh suit and that is one of the reasons which has prevailed with the trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff's revision. We fail to understand, if it is permissible for the Plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtain multiplicity of legal proceedings. Order 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 amendments 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 stage to which the hearing in the suit has proceeded....." The above decision squarely applies to the case in hand. O.S.No.221 of 1997 was filed for Bare Injunction; the proposed amendment is sought for, for declaration and alternative relief of possession. The proposed amendment would only change the nature of the relief and not the character of the Suit. 14. Yet another point urged by the Defendants which weighed substantially with the Trial Court is the question of the valuation of the Suit and the provision of the Court Fees Act. The contention raised by the Defendants for the alternative relief of recovery of possession, the Plaintiffs ought to have valued the Suit only under Sec.25(a) of the Court Fees Act and that the proposed Amendment seeking relief under Sec.25(b) of the Court Fees Act is not maintainable. Learned District Munsif has accepted this contention and found that the proposed amendment valuing the Suit under Sec.25(b) is erroneous and cannot be allowed. This finding is purely technical without considering the provisions in proper perspective. Learned District Munsif has accepted this contention and found that the proposed amendment valuing the Suit under Sec.25(b) is erroneous and cannot be allowed. This finding is purely technical without considering the provisions in proper perspective. Sec.25(a) of the Court Fees Act deals with the Prayer for a Declaration and for Possession of the Property. Sec.25(b) of the Court Fees Act relates to the prayer for declaration and consequential injunction and the relief sought to with reference to any immovable property. The Plaintiffs have sought for declaration and consequential injunction with reference to suit immovable properties. On the same cause of action, alternative prayer of possession is also sought for, for which also, the Court Fee is to be paid computing the Fee on the market value of the property or on Rs.300/- whichever is higher. Sec.6 of the Court Fees Act relates to Multifarious Suits. As per Sec. 6 of the Court Fees Act, where more reliefs than one based on the same cause of action are sought in the alternative in any suit, the plaint shall be chargeable with the highest of the fees leviable on the reliefs. The alternative relief of recovery of possession is sought for on the same cause of action. Hence, as per Sec.6 of the Court Fees Act, the Plaint shall be chargeable of the highest leviable on the reliefs. Only if on the separate causes of action, alternative relief is sought for, the Plaint shall be chargeable with the aggregate of the fee. (Sec.6(3) of the Court Fees Act). If on the same cause of action, alternative relief is sought for, the Plaint is chargeable on the highest fees chargeable on them. No doubt, under Sec.25(a) of the Court Fees Act, "the fee shall be computed" on the market value of the property or on Rs.300/- whichever is highest. On the other hand, under Sec.25 (b) of the Act, fee shall be computed on one half of the market value of the property or on Rs.300/- whichever is highest. Now, the Plaintiffs have paid the Court Fee only under Sec.25 (b) of the Courts Fees Act and not under Sec.25(a) of the Court Fees Act. If the Plaintiffs succeed on the relief of declaration and consequential injunction, the valuation of the Suit under Sec.25 (b) of the Court Fees Act would be correct. Now, the Plaintiffs have paid the Court Fee only under Sec.25 (b) of the Courts Fees Act and not under Sec.25(a) of the Court Fees Act. If the Plaintiffs succeed on the relief of declaration and consequential injunction, the valuation of the Suit under Sec.25 (b) of the Court Fees Act would be correct. If the Plaintiffs are to succeed for the alternative relief of recovery of possession, appropriate court fee would be under Sec.25 (a) of the Court Fees Act. In any event, the quoting / mis-quoting the provision of Court Fee cannot be reason for refusing the proposed amendment. Subject to the result of the Suit, the additional Court fee, if any could very well be collected. Learned District Munsif was not right in refusing the prayer for amendment on this technical point of valuation of the Suit and payment of Court Fee. 15. The Trial Court has not adopted the well settled position in adopting a liberal approach. Mere delay cannot be a ground for refusing the prayer for amendment. The impugned order suffers from infirmity and cannot be sustained. Though there is lapse of time, the Plaintiffs are to be given an opportunity to suitably amend the Plaint averments. In this view of the matter, the order of the Trial Court is to be set aside and this Revision Petition is to be allowed. 16. Therefore, the order of the District Munsif, Nilakkottai dated 30.04.2002 made in I.A.No.74 of 2002 in O.S.No.221 of 1997 is set aside and this Civil Revision Petition is allowed. The Trial Court is directed to afford sufficient opportunity to the Revision Petitioners / Plaintiffs to amend the Plaint and dispose of the Suit in accordance with law. In the circumstances of the case, there is no order as to costs.