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2005 DIGILAW 857 (MAD)

Loganathan v. Kaliappa Gounder & Others

2005-06-15

R.BANUMATHI

body2005
Judgment :- This revision is directed against the order of the Court of Additional District and Sessions cum Fast Track Judge I, Coimbatore, made in I.A.No. 34 of 2003 in O.S.No. 187 of 2002 dated 10-2-2003 dismissing the amendment petition filed under Or.6 R.17 C.P.C. The Plaintiff is the Revision Petitioner. 2. The brief facts necessitated for disposal of this revision petition could briefly be stated thus:- The suit property relates to site Nos. 17 to 22, 24 and 25 surrounded by the boundaries stated in the plaint schedule. The case of the Plaintiff is that the Plaintiff has purchased the suit property by a registered sale deed dated 30-5-1994. The suit property assumed importance as the same was developed as a residential area. The first Defendant is a close relative of the Plaintiff, who has offered help to the Plaintiff to develop the suit land. Hence, the Plaintiff has entrusted the work to the first Defendant and executed a general Power of Attorney on 15-7-1994 empowering the first Defendant to divide the land into house sites getting an approval from the Town Planning Authorities. For a long time the first Defendant did not effect any sale deed nor had done any development work. He has also stopped communicating with the Plaintiff regarding further developments. Hence, the Plaintiff has cancelled the Power of Attorney (dated 15-7-1994) given in favour of the first Defendant by a deed of cancellation dated 9-7-1997. The factum of cancellation of Power of Attorney was also informed to the first Defendant. However, the first Defendant has created two sale deeds dated 15-7-1997 one in favour of his son, the second Defendant and another in favour of his daughter-in-law, the third Defendant, as if, the second Defendant had purchased the site Nos. 17, 18, 19 and 20 and the third Defendant had purchased the site Nos. 21, 22, 24 and 25. Both the sale deeds are fraudulent and collusive creations by the Defendants and they are not binding on the Plaintiff. 17, 18, 19 and 20 and the third Defendant had purchased the site Nos. 21, 22, 24 and 25. Both the sale deeds are fraudulent and collusive creations by the Defendants and they are not binding on the Plaintiff. Hence, the Plaintiff has filed the suit for:- (a) ordering cancellation of the two sale deeds dated 15-7-1997 in favour of Defendants 2 and 3 executed by the first Defendant ; (b) directing the Defendants to deliver vacant possession of the suit property to the Plaintiff and alternatively, directing the first Defendant to account for the sale price in respect of the suit property and other reliefs. 3. Denying the averments in the plaint, the Defendants 2 and 3 have filed the written statement on 16-7-2001. The first Defendant has filed the written statement on 14-12-2002. In the written statement of the first Defendant, it is inter-alia pleaded that on 18-3-1997 the first Defendant had executed an agreement of sale in favour of the second Defendant for selling the house site Nos. 17 to 22, 24, 25, 26 and 28 for a sale price of Rs.6,55,000/-. Pursuant to the agreement of sale, two sale deeds were executed in favour of the Defendants 2 and 3 on 14-7-1997 and 15-7-1997. The second Defendant purchased site Nos. 21, 22, 24 and 25, under the sale deed dated 15-7-1997, for a total consideration of Rs.2,44,500/- and under the sale deed dated 14-7-1997 in favour of the third Defendant the site Nos. 26 and 28 were sold for the sale consideration of Rs.1,47,000/-. According to the Defendants, the first Defendant has made several improvements in the suit properties, for which, he had spent huge amounts; that apart title deeds of the first Defendant were also given as security for the Plaintiff for availing the loan from T.I.I.C. The first Defendant was looking after the Plaintiff as his own son. The Plaintiff is liable to pay Rs.2,76,951.50 to the first Defendant, being the expenses incurred for formation and promotion of the lay out. In the counter statement filed by the first Defendant, he has made a counter claim of Rs.2,50,000/- payable by the Plaintiff. 4. I.A.No. 34 of 2003:- During the pendency of the suit and after the commencement of the trial, the Plaintiff has filed this petition under Or.6 R.17 C.P.C. to amend the plaint as well as to include the site Nos. 4. I.A.No. 34 of 2003:- During the pendency of the suit and after the commencement of the trial, the Plaintiff has filed this petition under Or.6 R.17 C.P.C. to amend the plaint as well as to include the site Nos. 27 and 29 after site No. 23 prayer column in "d"-clause and in the description of suit property to state as "17 to 29". The four boundaries, particularly the boundary on the Northern side is also sought to be amended. In the supporting affidavit, the Plaintiff has averred that from the written statement filed by the first Defendant, it is made known that the disputed property is also situated in site Nos. 26 to 29 and hence, description of property is to be amended. 5. Resisting the application for amendment, the Defendants have filed their counter statement contending that the amendment petition is only an abuse of process of Court. The new boundaries introduced in the amendment petition sets forth entirely different property from the suit property. The amendment belatedly filed introducing a new claim cannot be allowed. 6. Upon consideration of the averments in the petition and the counter statement, the learned Additional District Judge dismissed the amendment petition finding that the proposed amendment with different boundaries would change the entire nature of the suit by changing the suit property. It has been further held that the amendment application cannot be allowed after the commencement of the trial and after the examination of P.W.1. 7. Aggrieved over the dismissal of the amendment petition, the Plaintiff has preferred this revision. The learned counsel for the Revision Petitioner has submitted that the lower Court erred in finding that there is change in property. It is submitted that the Plaintiff only seeks to include plot Nos. 27 and 29, which would not in any way substantially alter the character of the suit. 8. The learned counsel for the Respondents contended that by the proposed amendment the Plaintiff has introduced a new plea and taking note of the same, the lower Court has rightly refused to allow the amendment application. 27 and 29, which would not in any way substantially alter the character of the suit. 8. The learned counsel for the Respondents contended that by the proposed amendment the Plaintiff has introduced a new plea and taking note of the same, the lower Court has rightly refused to allow the amendment application. Drawing the attention of the Court to the averments in the written statement and the counter statement the learned counsel for the Respondents has submitted that when the Defendants have set forth their elaborate defence the amendment application filed after the commencement of the trial has no bonafide and the impugned order does not suffer from any irregularity warranting any interference. 9. Upon consideration of the submissions, impugned order, pleadings and other materials on record, the following points arise for consideration in this revision: (1)After the commencement of trial and after the examination of P.W.1, whether the amendment application filed could be allowed? (2)In refusing the amendment is there any improper exercise of discretion warranting interference ? 10. The amendment application has been belatedly filed. For proper understanding of the same, it is necessary to refer to certain relevant dates :- Suit filed on ... 10-07-2000 Written statement of Defendants 2 & 3 filed on ... 16-07-2001 Written statement of first Defendant filed on ... 14-12-2002 Amendment Application filed on ... 22-01-2003 Thus, it is clear that amendment application I.A.No. 34 of 2003 has been filed nearly 1 ½ years after the Defendants 2 and 3 have filed their written statement. Even in the written statement filed by the Defendants 2 and 3, two sale deeds dated 14-7-1997 and 15-7-1997 and the purchase of site Nos. 17 to 20, 21, 22, 24, 25, 26 and 28 have been clearly stated. But, the Plaintiff has not taken any steps seeking to amend the plaint. Reiterating the same in the written statement filed by the first Defendant(on 14-12-2002), he has made a counter claim for Rs. 3,26, 951.50, restricting the same to Rs.2,50,000/-. It was only thereafter, the Plaintiff has filed the amendment application. 11. A new proviso in CPC (Amendment) Act 1999 has been added under Or. Reiterating the same in the written statement filed by the first Defendant(on 14-12-2002), he has made a counter claim for Rs. 3,26, 951.50, restricting the same to Rs.2,50,000/-. It was only thereafter, the Plaintiff has filed the amendment application. 11. A new proviso in CPC (Amendment) Act 1999 has been added under Or. 6 R. 17 CPC, namely, that no application for amendment of the pleadings shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Thus after the trial of the case has commenced, no application for amendment of the pleadings shall, be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 12. From the order of the trial Court, it is seen that the trial has commenced and P.W.1 has been examined. Thus, as per CPC Amendment, after the trial of the case has commenced, no application for amendment of the pleadings shall, be allowed unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In the supporting affidavit, the Plaintiff has not stated any reason, as to why such application was not earlier filed. 13. There is nothing to conclude that inspite of due diligence the Plaintiff could not have filed the amendment petition earlier. The suit has been filed to order cancellation of two sale deeds dated 14-07-1997 and 15-07-1997. By exercising little more care, the Plaintiff could have filed a petition earlier for inclusion of site Nos. 27 and 29. The facts and circumstances only indicate lack of diligence on the part of the Plaintiff. As noted earlier, the written statement of Defendants 2 and 3 was filed even on 16-7-2001, wherein, they have clearly averred about the purchase of the sites including site Nos. 26 and 28. But the Plaintiff had not exercised due diligence in filing the amendment petition at an early point of time. But the Plaintiff has belatedly filed after the commencement of the trial – after the examination of P.W.1. 14. 26 and 28. But the Plaintiff had not exercised due diligence in filing the amendment petition at an early point of time. But the Plaintiff has belatedly filed after the commencement of the trial – after the examination of P.W.1. 14. The suit has been filed for cancellation of the sale deeds and also directing the Defendants to deliver vacant possession and alternatively directing the first Defendant to account for the sale price in respect of the suit property. In the plaint, the suit property has been described as 0.57 cents with four boundaries stated thereon; site Nos. 17 to 22, 24 and 25. Now under the proposed amendment, the Plaintiff seeks to amend the description of the property, deleting the site Nos. " 17 to 22, 24 and 25" and substitute " 17 to 29". Northern boundary is also sought to be amended as G.S.No. 331/2A2A, instead of G.S.No. 331/2A2B. Thus, by the proposed amendment, the Plaintiff also seeks to change the description of the property. Taking note of the same, the learned Additional District Judge has rightly found that the proposed amendment would alter the nature of the suit putting forth a new case. Since the proposed amendment introduces totally a new case, the Plaintiff cannot be allowed to substitute a new case for the earlier. Further, there is a delay in filing the amendment application. In case, where the amendment petition has been filed and allowed, such allowing of amendment would relate back to the date of the suit. In such cases, if amendment is allowed, it may prejudicially affect the right of the Defendants accrued over by such lapse of time. Hence, the Plaintiff cannot be allowed to set forth a new plea prejudicially affecting the right of the Defendants. 15. The suit is for cancellation of the sale deeds and for delivery of possession of site numbers 17 to 22, 24 and 25. Adding few more plots would cause serious prejudice to the Defendants. This is all the more so, when the first Defendant has made the counter claim for Rs. 2,50,000/-. 16. There is no improper exercise of discretion in dismissal of the amendment petition. The impugned order does not suffer from any jurisdictional error or infirmity warranting interference. This revision has no merits and the same is bound to fail. 17. This is all the more so, when the first Defendant has made the counter claim for Rs. 2,50,000/-. 16. There is no improper exercise of discretion in dismissal of the amendment petition. The impugned order does not suffer from any jurisdictional error or infirmity warranting interference. This revision has no merits and the same is bound to fail. 17. For the foregoing reasons, the order in I.A.No. 34 of 2003 in O.S.No. 187 of 2002 dated 10-2-2003, passed by the learned Additional District and Sessions cum Fast Track Judge I, Coimbatore, is confirmed and this revision petition is dismissed. Consequently, the connected C.M.P.No. 8918 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. The learned Additional District Judge (F.T.C.-I) is directed to expedite the trial and dispose of the same in accordance with law.