Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 906 (MAD)

Ellen v. P. L. Chockalingam

2005-06-22

R.BANUMATHI

body2005
Judgment :- These Revisions are directed against the impugned orders passed by the XVII Assistant Judge, City Civil Court, Chennai, allowing the amendment application, re-opening the case for additional evidence and allowing the application to amend the Plaint regarding the valuation. Since common points for consideration arise in all the three revisions, all three revisions were taken up together for hearing. 2. For appreciation of the contentious points, it is necessary to refer to the brief facts :- O.S.No.2837/1996 was filed by the Respondent/ Plaintiff relating to house at D.No.3, Thiruvalluvar Nagar, II Street, Kottur. Case of the Plaintiff is that his father Palaniappa Chettiar had purchased the suit property and other items of properties in T.S.Nos.122/11,122/33 measuring about thirteen grounds. Late Palaniappa Chettiar had appointed a watchman by name Ram Singh, to look after the entire thirteen grounds. The Watchman was also provided a small thatched hut at Door No.3 viz., the suit property. The entire area was later developed. The said Palaniappa Chettiar sold seven grounds out of the thirteen grounds during his life time. Watchman Ram Singh had vacated the place even during the life time of Palaniappa Chettiar. Palaniappa Chettiar died on 24.11.1982. Thereafter, the Defendant was asked to reside in the hut portion and look after the property. After the death of Palaniappa Chettiar, the Plaintiff was vested with a power of attorney by the legal heirs of Palaniappa Chettiar on 29.10.1984. The Defendant was allowed to construct brick and cement mortar wall with asbestos sheet in the place of hut portion. It was assessed to house tax by the Revenue Authorities, Corporation of Madras and the Plaintiff had paid the property tax. With ulterior motive, claiming right over the suit property, the Defendants have been trying to sell away the property to third parties. But coming to know about the same, the Plaintiff asked the Defendant to vacate the premises. Instead of vacating the premises, the Defendant called the local people to settle the matter in his favour. The Defendant had also sent petitions to Chief Minister's Cell to grab the property. Hence the Plaintiff has filed the suit for delivery of possession and for consequential injunction restraining the Defendant from in any way putting up construction in the suit property. The Defendant had also sent petitions to Chief Minister's Cell to grab the property. Hence the Plaintiff has filed the suit for delivery of possession and for consequential injunction restraining the Defendant from in any way putting up construction in the suit property. 3.Denying the allegations in the Plaint, the Defendant has filed the Written Statement contending that in the year 1978, Palaniappa Chettiar received Rs.10,000/- from the Defendant and sold one ground of land to the Defendant. Palaniappa Chettiar promised to execute the Sale Deed. But later did not execute the same and he passed away. After his death, the remaining property were sold by the Plaintiff. The Plaintiff never asked the Defendant to vacate. Since the price of the property has escalated the Plaintiff is trying to dispossess the Defendant from the suit property, falsely alleging that the Defendant is in permissive occupation. The Defendant has been in possession and enjoyment of the property since 1978. He has put up super structure by spending more than Rs.52,000/-. The Defendant is the owner of the land as well as the super structure. He is in possession of one ground of land and the building thereon. In such circumstances, the suit to recover possession of the house property is not maintainable. The trial commenced. Examination of witnesses was also concluded and the case was posted for arguments. 4.I.A.No.12337/2002 - Petition for filing Additional Issue :- During arguments, this application was filed to frame additional issue relating to the land. On such application, the Court has framed the additional issue – 'Whether the suit is maintainable without seeking relief with respect to the land on which the house is built ?' 5. I.A.Nos.13866/2002 and 13867/2002 :- After the additional issues were framed, the Plaintiffs have filed these applications to amend the plaint and also seeking to reopen the evidence. Those applications were opposed by the Defendant. The Court has also heard the parties in those applications. But those applications were later withdrawn. 6. At that stage, the three applications were filed. The three revisions arise out of the orders as noted below. In the impugned orders, the learned Judge has allowed all three applications briefly referring to the points. The learned Judge found that there is necessity to determine the ownership of the land. It was further held that the Defendant is claiming only through a oral sale. The three revisions arise out of the orders as noted below. In the impugned orders, the learned Judge has allowed all three applications briefly referring to the points. The learned Judge found that there is necessity to determine the ownership of the land. It was further held that the Defendant is claiming only through a oral sale. But the Plaintiff claims through a regular Sale Deed and hence amendment of the suit property to include vacant portion of the land is very much necessary. The applications were allowed on the ground that there was no serious objection by the Defendant. 7. Aggrieved over the order of allowing the applications, the Revision Petitioner/Defendant has preferred these revisions. Assailing the impugned orders the learned counsel for the Revision Petitioner/Defendant has submitted that when there was no diligence on the part of the Plaintiff in seeking for amendment at the earliest stage and also when the Plaintiff has withdrawn the earlier application, the trial Court ought not to have allowed the applications. It is submitted that having withdrawn the earlier applications, it is not open to the Plaintiff to file another application to amend the plaint and also to re-open the case. The main contention of the Defendant is that if vacant land is added to the suit property, the extent and value is very much essential, which the Plaintiff had not furnished. It is further submitted that the proposed amendment, valuing the property at Rs.36,040/- would substantially change the character of the suit and that the Court cannot accept the valuation given by the Plaintiff. 8. Refuting the arguments, the learned counsel for the Respondent/Plaintiff has submitted that under section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, no objection could be raised regarding the Court Fee at the later stage. Pointing out that because of the objections raised by the Defendant and in view of the additional issue, it has become necessary to amend the plaint. Submitting that the Plaintiff had shown due diligence, it is contended the proviso to the Amendment of Or.6, R.17 CPC by the CPC Amendment Act, would not apply. Submitting that the objections regarding under valuation could be verified at any time, the learned counsel has submitted that there is no substance in the objections raised by the Defendant regarding the valuation of the property. Submitting that the objections regarding under valuation could be verified at any time, the learned counsel has submitted that there is no substance in the objections raised by the Defendant regarding the valuation of the property. Pointing out that because of the additional issue, it has become necessary to file the amendment petition, the learned counsel for the Respondent/Plaintiff submitted that there is no reason warranting interference. 9. Upon consideration of the contentions of both parties, impugned orders and relevant materials on record, the following points arise for consideration in these revisions - 1. In view of framing of additional issue, whether the lower Court was right in allowing the amendment petition ? 2. Whether the trial Court was right in allowing the amendment application to amend the plaint, regarding valuation and payment of Court Fee ? 3. In the facts and circumstances of the case, and in view of the proviso to Or.6 R.17, inserted by the CPC Amendment Act, whether the impugned orders could be sustained ? 10. The suit property relates to house at Door No.3, Thiruvalluar Nagar, II Street (Yadavel Nagar), Kottur, Madras - 85. As per the Plaint averments, the Plaintiff's father Palaniappa Chettiar has purchased 13 grounds in T.S.Nos.122/11 and 122/33. Further case of the Plaintiff is that his father Palaniappa Chettiar had sold some portion of the land to the third parties. Though the Plaintiff has referred to the Title Deeds after the alienation by him, the Plaintiff has not chosen to include the vacant land in the description of properties. 11. Suit was filed on 27.2.1996. The Defendant has filed the Written Statement in August 1996. In the Written Statement, the Defendant has clearly alleged that he purchased the suit property measuring about one ground, in 1978, from Palaniappa Chettiar by paying Rs.10,000/-. According to the Defendant, before the Sale Deed could be executed, Palaniappa Chettiar died. The Defendant has put forth the defence plea that he is the owner of the land as well as the super structure. The Defendant has also set forth defence of adverse possession, alleging that he has perfected his title to the suit house and the vacant land by adverse possession. Though the Defendant has pleaded right and title over the suit house and also the vacant land, the Plaintiff had not taken immediate steps to amend the Plaint and to include the vacant land. 12. Though the Defendant has pleaded right and title over the suit house and also the vacant land, the Plaintiff had not taken immediate steps to amend the Plaint and to include the vacant land. 12. After the conclusion of the trial, suit was pending for arguments. During the arguments, finding that there is no issue regarding the vacant land, the Defendant had filed the application in I.A.No.1337/2002 to frame the additional issue as to the maintainability of the suit for delivery of possession without seeking relief relating to the land. At that stage, the Plaintiff has filed I.A.Nos.13866/2002 and 13867/2002 for amending the Plaintiff and also to re-open the case. The petition was bereft of details of amendment. Later the Plaintiff has withdrawn those applications and filed the present three applications. 13. Duty to frame the issues is on the Court. When framing issues, it is important to bear in mind the absolute necessity that, issues should be founded upon pleadings and has to be determined on proper issues. Although initially no issue was framed regarding the vacant land, from the pleadings, particularly the Written Statement, it is clear that the parties have understood the real contention between them. Though there was omission to frame the issue regarding the vacant land, parties have gone on trial on the pleadings on record. 14. Under Or.14, R.5, Court has the power to amend or strike out the issue. Under Or.14, R.5, additional issue regarding vacant land was framed. The main point involved is in the light of additional issue framed, 'Whether the lower Court was right in allowing the amendment'. As discussed earlier, the parties have already gone through trial, meeting the real controversy that the vacant land is the subject matter of the dispute. The Plaintiff was not diligent in taking appropriate steps to amend the Plaint. While so, framing of additional issue cannot be the ground to fill up the lacuna/omission to include the vacant land and thereby altering the suit. 15. To put it otherwise, framing of additional issue cannot be the basis for the amendment. On the pleadings and the materials on record, it is seen that the maintainability of the suit without including the vacant land is the point of defence raised by the Defendant as to the maintainability of the suit. 15. To put it otherwise, framing of additional issue cannot be the basis for the amendment. On the pleadings and the materials on record, it is seen that the maintainability of the suit without including the vacant land is the point of defence raised by the Defendant as to the maintainability of the suit. The amendment filed after the conclusion of the trial ought to have been refused, since it takes away from the Defendant a legal right which has accrued to him by lapse of time. If the amendment is brought out after the case is closed to introduce the averments and the description of the property thereby meeting the defence, the Plaintiff cannot be permitted to do so. The applications appear to have been filed to fill up the lacuna/omission. Such an amendment if allowed, would cause serious prejudice to the rights of the Defendants, which ought not to be allowed. 16. Amendment cannot be allowed where there is unconscionable delay. The amendment to include the vacant land and also the amendment regarding the value of the suit cannot be allowed, in view of the inordinate delay. Suit is of the year 1996. Amendment application has been filed in the year 2002, nearly six years after the filing of the suit. It was not proper on the part of the trial Court to permit the Plaintiff to amend the pleadings and description of property and the valuation totally introducing a new case. 17. Allowing of such amendment of pleadings, description of property and valuation is totally against the CPC Amendment Act 1999 (w.e.f. 01.07.2002). By CPC (Amendment) 2002 a new proviso has been added to the rule, 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 inspite of the diligence, the party could not have raised the matter before the commencement of trial. 18. Thus the amendment applications filed after the trial of the case was concluded, the amendment of the pleadings ought not to have been allowed, unless the Court comes to the conclusion that inspite of diligence, the Plaintiff could not raise the matter before the commencement of trial. In the impugned orders, there is nothing to indicate that the learned Judge has considered that aspect of diligence on the part of the Plaintiff. In the impugned orders, there is nothing to indicate that the learned Judge has considered that aspect of diligence on the part of the Plaintiff. Circumstances only indicate that there was no such diligence on the part of the Plaintiff to take steps in the appropriate time. As discussed earlier, the suit was filed in 1996; Written Statement was filed in August 1996 raising the plea of maintainability of the suit in view of non-inclusion of the vacant land. Though the suit was pending for more than six years, the Plaintiff had not chosen to take steps for amendment. Strangely, the steps taken in I.A.No.13866/2002 and I.A.No.13867/2002 were withdrawn. Hence the impugned orders in the amendment applications in 16141/2002 2533/2003 allowing the amendment applications are liable to be set aside. 19. Application I.A.No.16142/2002 was filed for further hearing in respect of the additional issue framed. When the Court frames additional issues, fairness requires that parties are to be given an opportunity to adduce additional evidence if any. It is well settled principle that for every amendment or addition of new issues, an opportunity is to be given to the parties to adduce oral and documentary evidence. The Defendant cannot have any objection to reopen the case to adduce additional evidence if any, regarding the additional issues framed. Hence the order made in I.A.No.16142/2002 allowing the application to reopen the case for further hearing in respect of the additional issues is to be confirmed. 20. In the impugned order, the learned Judge has stated that there was no objection from the Defendant. This observation of the lower Court is very much assailed by the Revision Petitioner/ Defendant. It is submitted that all the applications were argued for more than half an hour by the counsel for the Defendant and all the applications were seriously contested. The learned counsel for the Revision Petitioner has taken serious objection to the observation of the trial Court that there was no serious objection. By perusal of the affidavit filed along with the applications, it is seen that after hearing the arguments, the applications were posted for orders on 8.7.2003. From 8.7.2003, the case was adjourned to 15.7.2003, stating that the order is not made ready. Again the case was adjourned to 30.7.2003. On 30.7.2003, the learned Judge again adjourned the case for perusal of bundle, to 11.8.2003. From 8.7.2003, the case was adjourned to 15.7.2003, stating that the order is not made ready. Again the case was adjourned to 30.7.2003. On 30.7.2003, the learned Judge again adjourned the case for perusal of bundle, to 11.8.2003. Subsequently, the matter was adjourned to 18.8.2003, 26.8.2003, 9.9.2003 and 22.9.2003. Had there been no serious objection, there was no necessity to adjourn the applications to a number of hearings for pronouncing the order. The learned Judge is not justified in observing that there was no serious objection for allowing the applications. It is also to be pointed out that once the matters are reserved for orders, it would be proper to pronounce the orders without further adjournments. In cases where the matters are reserved for orders, repeated adjournments without pronouncing the orders invariably, give room for complaints. It is always desirable that the lower Courts avoid such reopening of the cases after the cases are reserved for Judgment/orders. 21. The impugned orders allowing the amendment applications to permit the Plaintiff to amend the plaint schedule by inserting the land portion and to amend the valuation of the suit property cannot be sustained. In view of the inordinate delay in filing the applications and keeping in mind the valuable right accrued to the Defendant, over the lapse of years, the orders made in amendment applications are to be set aside. The application allowing re-opening evidence for further hearing made in I.A.No.16142/2002 is to be confirmed. 22. C.R.P.No.2904/2005 and 2906/2005:- The orders of the V Assistant City Civil Judge made in I.A.Nos.16141/2002 and 2533/2003 in O.S.No.2837/1996 are set aside and these Revision Petitions are allowed. 23. C.R.P.No.2905/2005:- The order of the V Assistant Judge, City Civil Court, Madras made in I.A.No.16142/2002 in O.S.No.2837/1996 confirmed and the Civil Revision Petition is dismissed. The trial Court is directed to reopen the case and to give sufficient opportunity to both parties to adduce evidence relating to the additional issue framed. The trial Court is further directed to dispose of the suit within three months from the date of receipt of copy of this order. In such circumstances of the case, there is no order as to costs in all the three revision petitions.