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2006 DIGILAW 1923 (MAD)

Ramakrishnappa v. Venkatsamy & Others

2006-08-01

A.C.ARUMUGAPERUMAL ADITYAN

body2006
Judgment :- (Prayer: The Civil Revision Petition is filed against the fair and decreetal order dated 02.02.2005, passed in I.A.No.49 of 2003 in A.S.No.23/2002 on the file of the Sub-Court, Hosur.) This Civil Revision Petition has been filed by the plaintiff in O.S.No.505/88 on the file of the District Munsif, Hosur. The plaintiff, who has lost the suit before the trial Court has preferred A.S.No.23/2002 against the decree and Judgment in O.S.No.505/1988, before the Sub-Court, Hosur. While the appeal was pending, the appellant/plaintiff had filed I.A.No.49/2003 under Order 6 Rule 17 to amend the pleadings. The learned Sub-Judge, after considering the contentions of both the learned counsel for the plaintiff and learned counsel for the Defendants has passed a well considered order dismissing the I.A.No.49/2003 on the ground that after the amendment of CPC under Act 22/02, the petition for amendment is not maintainable and if the amendment is allowed that will change the nature of the case and introduce a new cause of action. The said order is being challenged before this Court in Revision. 2. According to the plaintiff, in respect of the Suit property S.No.114 there was an oral partition between the predecessor's in title and the 1st Defendant had purchased a portion of the property in S.No.114 and the partition was effected among four brothers, namely, Chinnanna, Rangappa and Narayanappa and one Munusamy. Except Munusamy other three brothers got major portion in S.No.114 towards their respective shares. Narayanappa got a separate patta under patta No.343 for S.No.114/1 measuring Hec. 0.44.0 and chinnanna and Rangappa got separate patta under patta No.842 in S.No.114/3 measuring Hect. 0.57.0. Rangappa alone was in exclusive possession in S.No.114/2 patta No.916 measuring Hect. 0.41.0. According to the plaintiff, Narayanappa and Munusami, son of Ramiaha along with one Muniappa son of Achappa got joint patta because the said Muniappa son of Achappa purchased some portion in S.No.114 so for the portions purchased by 1st defendant, he did not got any patta, whereas Chinnanna, Rangappa, Narayanappa and Munusami got their patta. So, according to the plaintiff, the sale by Rangappa infavour of the plaintiff is valid, at least to the extent of half share in S.No.114/3, because the joint patta stands in the names of Chinnanna and Rangappa. This was one of the amendment sought for in the said petition (I.A.No.49/2003). 3. So, according to the plaintiff, the sale by Rangappa infavour of the plaintiff is valid, at least to the extent of half share in S.No.114/3, because the joint patta stands in the names of Chinnanna and Rangappa. This was one of the amendment sought for in the said petition (I.A.No.49/2003). 3. The learned Sub-Judge, after going through the rival contentions of the parties has observed in his order that the suit is of the year 1988 and the plaintiff/petitioner had filed this petition under Order 6 Rule 17 in the year 2003 i.e. after a lapse of 15 years and if this amendment is allowed that will cause hardship to the Defendants, who are in possession of the suit property for more than 12 years and that if the amendment sought for is allowed, that will hit the Article 3, 64 and 65 of the Limitation Act. 4. The learned counsel for the petitioner vehemently contended that after the amendment of Order 6 Rule 17 CPC under Act 22/2002, the new plea sought to be introduced will in no way prejudice the right of the opposite party and hence the amendment can be allowed. For this proposition, the learned counsel for the revision petitioner relied on a case reported in 2004(3) MLJ 587 (L. Narayan Reddy Vs. P.Narayana Reddy and others). The facts of the said case are that the plaintiff filed a suit for specific performance of contract seeking direction to the defendants to execute a sale deed in respect of some immovable properties. According to the revision petitioner/plaintiff, the first Defendant had agreed to sell the suit property on his behalf and on behalf of his minor and in pursuance of the same, he had also executed a sale agreement in his favour agreeing to sell the property for a sum of Rs.1,50,000/- In the mean time, the first Defendant had filed O.S.No.39/1996 before the District Munsif, Hosur, and due to the pendency of the said suit, according to the plaintiff, he could not complete the sale transaction and because of the said suit the plaintiff could not file a suit for specific performance of contract. After framing the issues in O.S.No.39/1996, the trial has been commenced and P.W.1 was examined and at that stage, the plaintiff has filed I.A.No.452/2003 in order to introduce certain amendments contending that the proposed amendment is in the nature of clarificatory statement based on subsequent sub-division of suit property as well as on the basis of subsequent withdrawal of previous suit, filed by the first Defendant and in order to meet the ends of justice and to decide the case once for all finally, the proposed amendments were considered as absolutely necessary. According to the plaintiff therein, the said amendment application was resisted by the Defendants stating that in view of the amendment in CPC, the petition for amendment is not maintainable. The learned Sub-Judge, Hosur, held that the petition is not maintainable and accordingly dismissed it on 31.10.2003. Aggrieved by the said order, the plaintiff had preferred a revision. While allowing the revision this Court has observed as follows: "Thus it is seen, some of the provisions omitted in Order 6, some of the provisions inserted or substituted by Amended Civil Procedure Code shall not apply to in respect of any pleading filed before the commencement of implementing the amended provisions. In this case, admittedly, the suit was filed in the year 1996, i.e., before the amendments introduced under Act 22 of 2002 and in this view of the matter, I am of the consider opinion the proviso cannot be an impediment or bar in allowing the amendment application, if it otherwise deserves on merit to be allowed, on the basis that the trial has been commenced and therefore, no amendment shall be allowed after commencement of the trial." 5. The amendment sought for in the case cited above is only by way of a clarificatory statement and already there was pleading to that effect in the plaint and by way of caution the plaintiff wanted to introduce certain amendments in the nature of clarificatory statement based on subsequent subdivision of the suit property as well as on the basis of subsequent withdrawal of the previous suit. That is not the case herein. That is not the case herein. Here in the first appeal, the plaintiff after an lapse of 15 years from the date of filing of the suit has come forward with a petition under Order 6 Rule 17 for amending the pleadings in the plaint and it is not in the nature of clarificatory statement as in the case mentioned above. In the written statement itself, the plaintiff has stated that the predecessors