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2005 DIGILAW 703 (MAD)

D. Meganathan v. Annammal & Others

2005-04-20

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- Common Order: The earlier C.R.P.No.1372 of 2004 is filed by the plaintiff in O.S.No.831 of 1988 aggrieved against the order dated 23.12.2003 in I.A.No.1653 of 2003 on the file of District Munsif Court, Poonamallee. The later C.R.P.No.1373 of 2004 is filed by the same revision petitioner, who is the first defendant in O.S.No.1016 of 1987 aggrieved against the order dated 23.12.2003 in I.A.No.2465 of 2003 on the file of the District Munsif Court, Poonamallee. 2. The revision petitioner filed the suit O.S.No.831 of 1988 for specific performance of the contract of sale agreement dated 15.3.1985, as per which, the defendants along with one Viswanathan, agreed to sell the property in favour of the plaintiff. The plaintiff's father, Dharman, the first defendant's husband Ranganathan and Viswanathan are brothers. In view of the close relationship of the parties, Ranganathan and Viswanathan executed the sale agreement in favour of the plaintiff on 15.3.1985 agreeing to sell the suit property being joint family property purchased for the benefit of joint family from and out of joint family funds jointly in the names of Ranganathan and Viswanathan. The suit was filed on 26.2.1988. 3. The suit O.S.No.831 of 1988 was resisted in the written statement filed by the second defendant in January 1990 admitting the sale agreement and stating that since the sale deed was not executed pursuant to the agreement within the stipulated time of one year, the agreement was cancelled through notice dated 5.5.1987 and so the plaintiff cannot claim the specific performance as sought for in the suit. 4. The plaintiff in O.S.No.831 of 1988 filed amendment petition under Order 6 Rule 17 and Section 151 C.P.C. in I.A.No.1653 of 2003 to amend the plaint in respect of the north to south measurement as it is not correctly set out in the plaint and it should be amended as 110 feet as on the ground and not 156 feet as recited in the suit agreement. Such amendment has to be added as paragraph 11(a) after paragraph 11 and accordingly, this has to be amended in schedule of property and also to add paragraph 3(a) as stated therein after paragraph 3 in the plaint. 5. The petition I.A.No.1653 of 2003 was opposed by filing counter. Such amendment has to be added as paragraph 11(a) after paragraph 11 and accordingly, this has to be amended in schedule of property and also to add paragraph 3(a) as stated therein after paragraph 3 in the plaint. 5. The petition I.A.No.1653 of 2003 was opposed by filing counter. The trial court as per order dated 23.12.2003 dismissed the petition on the ground that in the suit O.S.No.831 of 1988, which is the subject matter of the earlier C.R.P.No.1372 of 2004, and O.S.No.1016 of 1987, which is the subject matter of later C.R.P.No.1373 of 2004, common evidence have been let in, as they were tried together and posted for argument and at that stage, the amendment petition I.A.No.1653 of 2003 has been filed very much belatedly. The said order is under challenge in C.R.P.No.1372 of 2004. 6. The defendants 1 and 2 in O.S.No.831 of 1988, filed the suit O.S.No.1016 of 1987 seeking declaration that the cancellation of the agreement dated 15.3.1985 by them as per notice dated 5.5.1987 is valid in law and for permanent injunction restraining the first defendant in the suit viz., the revision petitioner herein from alienating the suit property pursuant to the sale agreement dated 15.3.1985. In the amended plaint, it is stated that they agreed to sell the suit property to the revision petitioner on 15.3.1985 for Rs.6,000/- and received advance of Rs.2,500/- at the time of agreement for their half share in the suit property. The rest of the half share belongs to one Viswanathan, who joined in execution of the sale agreement with the first defendant and also received Rs.2,500/- as advance at the time of the agreement. It is further stated that the agreement was cancelled as per notice dated 5.5.1987, since the agreement could not be completed within the stipulated time. 7. The suit O.S.No.1016 of 1987 was resisted in the written statements. A separate written statement was filed by the first defendant. The second defendant filed a written statement and the same was adopted by the third defendant. 8. The first defendant in O.S.No.1016 of 1987, the revision petitioner herein, filed I.A.No.2465 of 2003 seeking permission to file additional written statement. The suit O.S.No.1016 of 1987 was resisted in the written statements. A separate written statement was filed by the first defendant. The second defendant filed a written statement and the same was adopted by the third defendant. 8. The first defendant in O.S.No.1016 of 1987, the revision petitioner herein, filed I.A.No.2465 of 2003 seeking permission to file additional written statement. The trial Court considering the facts and circumstances of the suits, viz., O.S.Nos.1016 of 1987 and 831 of 1988 have been tried together and posted for arguments and since I.A.No.2465 of 2003 has been filed very much belatedly, dismissed the petition as per order dated 23.12.2003. The said order is under challenge in C.R.P.No.1373 of 2004. 9. Learned counsel for the revision petitioner in both revisions argued that inasmuch as the measurement has not been correctly stated in the plaint in O.S.No.831 of 1988, the same has to be amended as sought by the revision petitioner, besides adding paragraph 3(a), after paragraph 3, and paragraph 11(a) after paragraph 11, as set out in the amendment petition. 10. With regard to the petition I.A.No.2465 of 2003 praying to receive additional written statement in O.S.No.1016 of 1987, the learned counsel for the revision petitioner has submitted that the first defendant/revision petitioner had already filed a written statement and only with regard to the binding nature of the defendants 2 and 3, who are the then minor children of the first plaintiff, he sought to file additional written statement, as such, no new case is set up. In support of his contentions, the learned counsel for the revision petitioner relied on the following decisions:- (1) G.NAGAMMA - vs. - SIROMANAMMA reported in (1996) 2 Supreme Court Cases 25, in which the Hon'ble Supreme Court held thus:- "The plaintiff is entitled to plead even inconsistent pleas. In this case, the plaintiffs were seeking alternative reliefs. The application was for amendment of the plaint whereby neither cause of action could change nor the relief could be materially affected. The same has to be allowed." (2) B.K.NARAYANA PILLAI – vs. - PARAMESWARAN PILLAI AND ANOTHER reported in (2000) 1 Supreme Court Cases 712, in which the Hon'ble Supreme Court held thus:- "The purpose and object of Order 6 Rule 17 CPC 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 the Supreme 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 a hypertechnical 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." (3) JAYANTI ROY – vs. - DASS ESTATE PVT. LTD reported in (2002)5 Supreme Court Cases 175, in which the Hon'ble Supreme Court held thus:- "If there is no material inconsistency between the original averments and those proposed by amendment, held, application for amendment should be allowed." It is further held thus:- ".. applications moved at proper stage and not unduly delayed should not normally be rejected." 11. Learned counsel for the respondents argued that inasmuch as a new case has been set up in the proposed amendment and the amendment petition was filed very much belatedly, i.e., after evidence was over in both the suits viz., O.S.No.831 of 1988 and 1016 of 1987, the trial court rightly dismissed the petition for amendment. The learned counsel also submitted that there is no necessity to file additional written statement as sought by the first defendant in O.S.No.1016 of 1987. In support of his contention, the learned counsel for the respondents relied on the decision in PANKAJA - vs. - YELLAPPA (D) LRs reported in 2004 (4) CTC 231, wherein it is held as follows:- "Jurisdiction to allow or not to allow amendment of pleading is discretionary and will have to be exercised in judicious evaluation of facts and circumstances in which amendment is sought. If granting amendment subserves ultimate justice and avoids further litigation, same should be allowed. There can be no straight jacket formula for allowing or disallowing amendment of pleading which depends on factual background of that case. Such application should not be disallowed merely because it is opposed that it is barred by litigation. If granting amendment subserves ultimate justice and avoids further litigation, same should be allowed. There can be no straight jacket formula for allowing or disallowing amendment of pleading which depends on factual background of that case. Such application should not be disallowed merely because it is opposed that it is barred by litigation. On facts held that applicability of limitation was arguable question and proposed amendment does not introduce different relief." 12. The revision petitioner filed the suit O.S.No.831 of 1988 for specific performance of the contract of sale agreement dated 15.3.1985 and stating that the sale agreement was executed by the defendants, legal representative of Ranganathan along with Viswanathan, who is the brother of the deceased Ranganathan. Both Ranganathan and Viswanathan are brothers of Dharman, the father of the revision petitioner, who filed the said suit. A clear case of the revision petitioner is set out in the plaint in O.S.No.831 of 1988 and also in the written statement filed in the earlier suit O.S.No.1016 of 1987. 13. The execution of sale agreement is not disputed by the defendants. It is the case of the defendants that since the agreement of sale was not enforced within the stipulated time of one year, the sale agreement was cancelled through notice dated 5.5.1987 and accordingly, the defendants in O.S.No.831 of 1988 also filed the earlier suit O.S.No.1016 of 1987 seeking declaration that the cancellation of the agreement dated 15.3.1985 as per notice dated 5.5.1987 is valid in law and for permanent injunction restraining the first defendant in that suit, viz., the revision petitioner from alienating the suit property. 14. Admittedly, common evidence has been recorded in both suits and when both suits were posted for arguments at that stage, the amendment petition I.A.No.1653 of 2003, subject matter of the earlier revision C.R.P.No.1372 of 2004 and the petition I.A.No.2465 of 2003 to receive the additional written statement, subject matter of the later revision C.R.P.No.1373 of 2004 have been filed by the revision petitioner, who is the plaintiff in O.S.No.831 of 1988 and the first defendant in O.S.No.1016 of 1987. 15. 15. Though the suit O.S.No.831 of 1988 was filed for specific performance of contract of sale agreement after filing of the suit O.S.No.1016 of 1987 seeking declaration that the cancellation of the agreement dated 15.3.1985 by them as per notice dated 5.5.1987 is valid in law and for permanent injunction restraining the first defendant in that suit from alienating the suit property, it is not stated in the plaint in O.S.No.831 of 1988 about the arrangement now pleaded in the affidavit in I.A.No.1653 of 2003 that one Palani, who is the son of Kanakambaram Ammal, sister of the three brothers, viz., Dharman, Ranganathan and Viswanathan, about the mediation by Kanakambaram Ammal and her son Palani and about the binding nature of the minor defendants 3 and 4 in O.S.No.831 of 1988 who were not joined in execution of the sale agreement in favour of the revision petitioner and admittedly, the suit properties are the joint family properties of the three brothers, viz., Dharman, Ranganathan and Viswanathan and the defendants come under the branch of Ranganathan. Therefore, it is not open for the revision petitioner to seek amendment of the plaint in O.S.No.831 of 1988 and accordingly by setting out the averment as such, similarly, the revision petitioner is also not entitled to seek the amendment of the north to south measurement of the suit land as 110 feet as on ground and not 156 feet as stated in the suit agreement, in that even in the sale deed dated 29.1.1968, as per which the suit property was purchased by the two brothers, viz., Ranganathan and Viswanathan, which according to the revision petitioner was for the benefit of the joint family and out of the joint family funds, north to south measurement is mentioned as 156 feet. Therefore, the trial Court, considering all these aspects and also considering that the evidence in both suits were over and posted for arguments, dismissed the petition I.A.No.1653 of 2003. 16. Similarly by setting out the very same fact as stated in the affidavit filed in support of the amendment petition I.A.No.1653 of 2003, the revision petitioner as first defendant in O.S.No.1016 of 1987 has filed I.A.No.2465 of 2003, subject matter of the later revision C.R.P.No.1373 of 2004 seeking permission to file additional written statement, despite the fact he filed the written statement in August, 1988 wherein these facts have not been disclosed. It follows, it is not open to the revision petitioner, who went on trial in both suits, in which common evidence have been recorded and which suits are now pending at the argument stage, to raise new facts in the additional written statement and in that view the revision petitioner cannot be permitted to file additional written statement. The trial Court considering these aspects rightly dismissed the petition I.A.No.2465 of 2003 seeking permission to file additional written statement in O.S.No.1016 of 1987. Therefore, the orders under challenge in both the revisions being not erroneous, there is no reason to interfere with such orders. 17. In the result, both the Civil Revision Petitions fail and are dismissed, confirming the orders dated 23.12.2003 and made in I.A.No.1653 of 2003 in O.S.No.831 of 1988 and I.A.No.2465 of 2003 in O.S.No.1016 of 1987 passed by the District Munsif Court, Poonamallee. No costs. Consequently, the petition C.M.P.No.12980 of 2004 is closed.