Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 2309 (MAD)

Sengottuvel & Another v. Ponnuvel & Another

2006-09-06

S.MANIKUMAR

body2006
Judgment :- Civil Revision Petition filed against the order dated 30.06.2005 passed by the First Additional District Munsif, Salem in I.A.No.376 of 2005 in O.S.No.438 of 2003, allowing the amendment petition. 2. The brief facts leading to the filing of the Civil Revision Petition are as follows: - (i) The plaintiff, who is the first respondent in the Revision Petition has filed the suit for declaration of his right to use and for permanent injunction, in respect of cart track. The petitioners 1 and 2 are defendants in the suit. The case of the plaintiff is that he is the owner of the property described as item no.1 in the schedule, pursuant to a deed of partition dated 29.4.1986, registered as document No.477/86. The property described as item no.2 belong to him by virtue of a Will dated 26.6.1992, registered as document No.21/92, executed by his father. The plaintiff is in continuous possession of item no.1 of the suit property, since 29.4.1986 and is also in possession of item no.2 of the suit property from 10.4.1993, after the death of his father. There is a trunk road from Salem to Thiruchengode, on the north – south of the suit property. There is a cart-track, which branches from the said main road towards east, and it runs through the northern extremity of Survey Nos.200/6, 200/9, 200/7, 200/8, 200/9, 200/10, 201/6 and 201/7 of Bairoji village. The said cart-track proceeds towards Bairoji lake and the village of Pudupalayam. The land in Survey No.197 belongs to the 4th defendant. The land situated on the north of cart-track in Survey No.197 belongs to the plaintiff and to the defendants 1 and 2 and the Survey Field Number for the same is 196. (ii) The plaintiff and his predecessors in title have been using the cart-track from time immemorial, continuously and the plaintiff has prescriptive title by easement. He has to take agricultural produce, mud, manure and cattle only though the cart-track. The said cart-track is the only way to reach Bairoji lake as well as Pudupalayam village. (iii) The defendants 1 and 2, who are inimically disposed off prevented the plaintiff from having access to this cart–track especially in “BC” portion, which runs through Survey Nos.200/1 and 200/9. The cart-track is shown as “ABCDE” in the sketch annexed to the plaint. The said cart-track is the only way to reach Bairoji lake as well as Pudupalayam village. (iii) The defendants 1 and 2, who are inimically disposed off prevented the plaintiff from having access to this cart–track especially in “BC” portion, which runs through Survey Nos.200/1 and 200/9. The cart-track is shown as “ABCDE” in the sketch annexed to the plaint. On 28.6.2003, defendants 1 to 3 along with rowdy elements prevented him from having access to the cart-track. Since the plaintiff has no other ingress and egress to his property and as much as he has prescriptive title by easement for over a statutory period, he has chosen to file a suit for declaration of his right to use and enjoyment of cart-track and for a permanent injunction restraining the defendants 1 to 3 from interfering with his peaceful possession and enjoyment of the cart–track. (iv) The petitioner filed a written statement contending inter alia that the plaintiff has no right over the cart–track and that it is a private cart- track of the defendants. The defendants also denied the right said to have been enjoyed by the plaintiff over the cart-track. According to them, the cart– track runs through the defendants' land and that the plaintiff is not using the cart-track. The defendants denied the allegations said to have taken place on 28.6.2003 and had prayed for dismissal of the suit. 3. Pending disposal of the suit, an injunction was granted in favour of the plaintiff in I.A.No.905/2003, which was made absolute. In I.A.No.906/2003, an Advocate Commissioner was appointed to find out the location of the suit cart-track. The said Advocate Commissioner visited the suit property on 30.7.2003 and submitted a report in August 2003, along with the sketch. 4. The plaintiff further contended that since the injunction order was against all the members of the defendants' family, they adopted a circuitous method of causing obstruction to the plaintiff from using Survey No.119/1 of Bairoji village. The plaintiff has obtained Encumbrance Certificate, which shows that S.No.119/01 was a joint family property and for the purpose of forcing him to sell the property, a fraudulent deed of partition, dated 25.05.1995 is said to have been executed and which was later on registered on 29.05.1995. The defendants have put up a wall over the cart- track, preventing ingress and egress to the plaintiff’s property. The defendants have put up a wall over the cart- track, preventing ingress and egress to the plaintiff’s property. Therefore the plaintiff filed an application for amendment of the plaint, for grant of mandatory injunction for removal of the said wall and for addition of Field Survey No.119/1 of Bairoji village, before the prayer portion. The details of amendment sought for are as follows: - "Before the cause of action para, add as follows: The para 11 and 11A are as follows: 1. The respondents knowing that an order of injunction has been passed against them submits before the Attayampatty Police on or about 17.05.2004 that field No.119/1 is allotted in the partition was brought about 29.05.1995 between the members of the respondents family. The plaintiff submits that an encumbrance certificate has been produced which will go to show that the said S.No.119/1 of Bairoji village belongs to joint family and for the purpose of forcing the plaintiff to sell the lands to them a deed of partition has been brought about which has not been acted upon. The petitioner humbly pray that the said property may kindly be included in the description property before the other S.Nos. commence, the petitioner has also taken out a commission who has noted that in the said field a wall has been put up by the defendants which prevents the plaintiff from using the suit property. The said wall will have to be removed by the grant of in the relief of mandatory injunction against the respondents and if they refuse to obey the Hon'ble Court, the said obstruction may kindly be removed by due process of law to be passed by the court. 2. In the court fee column add the value of the suit by adding Rs.400/-. 3. In the valuation para add the value for the relief of grant of injunction at Rs.400/- C.F. paid thereon is Rs.30.50. 4. In the prayer column add as AA grant the relief of mandatory injunction by removing the north south wall in field No.119/1 which serves as an obstruction for reaching the suit survey number. 5. Put the A1 before ABCDE, Field No.119/1 of Bairoji Village has been shown as A1 which should preceed ABCDE. " 5. The defendants resisted the said application contending that the plaintiff has no right over S.No.119/1 and that it was not even mentioned in the plaint. 5. Put the A1 before ABCDE, Field No.119/1 of Bairoji Village has been shown as A1 which should preceed ABCDE. " 5. The defendants resisted the said application contending that the plaintiff has no right over S.No.119/1 and that it was not even mentioned in the plaint. It was further contended that the wall was already in existence and that the proposed amendment will introduce a new case and will also change its nature. The valuation as per the proposed amendment is not correct. The defendants are not liable to remove the wall, hence they prayed for dismissal of the amendment petition. 6. The Lower court after considering the rival submissions allowed the amendment application. The prime objection of the defendants was that the plaintiff has no right to claim for removal of the wall, as the said wall is the absolute property of the defendants. The court below considered that the rights of the parties in respect of the cart-track and the wall could be determined at the time of trial and that it was premature to decide the rights of the parties while deciding the amendment petition. The Lower Court also considered that incorporation of the prayer for mandatory injunction will not absolve the rights of the defendants and the prayer, if granted, will avoid multiplicity of proceedings. Besides, it would facilitate adjudication of the dispute between the parties. Aggrieved against the said order, defendants 1 and 2 have preferred this Civil Revision Petition. 7. Learned Counsel for petitioners submitted that the Lower Court failed to consider that the wall was not the subject-matter of the original plaint. The said wall, which was constructed about 40 years back is now sought to be removed by way of a mandatory injunction. The respondents have not prayed for the removal of the wall earlier at the time of filing of the suit. In order to fill up the lacuna, he has chosen to file a petition for amendment, which would result in changing the nature and character of the suit. An additional relief by way of an amendment is not permissible in law. 8. Learned Counsel for petitioner, placing reliance of the decisions reported in Bhagavatula Gopalakrishnamurthi and others vs. Dhulipalla Sreedhara Rao and another ( AIR 1950 Mad 32 ) and Angammal vs. Muthupechiammal and another ( AIR 1976 Mad. An additional relief by way of an amendment is not permissible in law. 8. Learned Counsel for petitioner, placing reliance of the decisions reported in Bhagavatula Gopalakrishnamurthi and others vs. Dhulipalla Sreedhara Rao and another ( AIR 1950 Mad 32 ) and Angammal vs. Muthupechiammal and another ( AIR 1976 Mad. 282 ) submitted that the amendment sought for is totally unconnected with the original prayer and that therefore, it should not be allowed. He further submitted that the facts were already available to the plaintiff and despite the same, there was no pleading in the plaint, in respect of wall. Therefore, it is not open to the plaintiff to seek for an amendment, which would be amounting to introduction of a new case. 9. Learned counsel for respondents submitted that the construction of wall over the cart-track is a subsequent event by which the petitioner has intentionally prevented the respondents from having ingress and egress to his property. Since the disputed wall was not in existence at the time of filing of suit, it could not be mentioned. By putting up the wall on the cart track and the defendants have intentionally prevented the plaintiff from having access to the main road and to the Survey No.119/1 situated on the eastern side. He further submitted that there are sufficient averments in the plaint, relating to the user of the cart-track and his title by prescription. Therefore, the introduction of an additional relief is not going to alter the cause of action or the nature of the suit. 10. Learned counsel for respondents filed a copy of Commissioner’s Report and the sketch in which the learned Commissioner has noted down the construction of wall over the cart-track. The learned Commissioner in his report has noted as follows. : - At page No.4 of the report, learned Commissioner has stated as follows: 11. Further at Page No. 4 of his report, learned Advocate Commissioner has noted that there is a cart-track starting from Survey No.197 on the western side passing through Survey Nos.196/2 and 196/4 and leading towards Bairoji lake, which is in S.No.199/1. It is clear from the learned Advocate Commissioner’s report as well as in the plan submitted by him that there is a wall constructed on the western side of the cart-track upto a height of 4 feet and to a width of 12 feet. It is clear from the learned Advocate Commissioner’s report as well as in the plan submitted by him that there is a wall constructed on the western side of the cart-track upto a height of 4 feet and to a width of 12 feet. According to the respondents, the said construction is a subsequent event and unless the amendment petition is granted, he will be put to serious loss and irreparable hardship. 12. During the course of arguments, learned counsel for respondents also filed the Suit plan and argued that Survey No.119/1 is a part of S.No.196, which is already a subject-mater of the suit schedule property and that therefore it is not an introduction of a new survey number. The counsel also submitted that there are no merit in the Revision Petition and sought for its dismissal. 13. Before going into the merits of this case, it is worthwhile to consider the recent decision reported in Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam vs. Udumalpet Samayapuram Ayira Vaisya Sangam) 2005 (4) CTC 664 , (Hon'ble Justice M.Karpagavinayagam), where this Court after considering various judgments on this point has culled out the following guidelines to be considered by the courts while dealing with amendment petitions : "(1) The general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit or new case or cause of action is barred. (2) It is well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation. (3) The object of Courts and rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. Further, a party is strictly not entitled to reply on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. Further, a party is strictly not entitled to reply on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended. (4) Even though the amendment sought to be made is subject to law of limitation, if the cause of action is not going to be changed, it is open to the affected party to take necessary steps for amendment of the plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party of lapse of time. (5) For merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced that the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer to the same and that certainly the additional pleadings may take in also the plea of bar of limitation. (6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the amendment being ordered. The amendment application should be allowed, since it is not going to change the nature of the plea nor does it affect the rights of the defendants. The defendants are entitled to put forward all their contentions even after the amendment is allowed. (7) The question of limitation should not have been decided by the Court below at present, since it is a question to be decided on merits with oral and documentary evidence. At present, we are concerned with the amendment application, which is governed only under Order 6, Rule 17, C.P.C. The amendment application should be allowed, if it is not going to change the nature of the suit nor does it affect the rights of the defendants. (8) 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. In the opinion of the Trial Court, it is open to the plaintiff to file a fresh suit and that is one of the reasons, which has prevailed with the Trial Court. What is sought to be changed is the nature of relief sought for by the plaintiff. In the opinion of the Trial Court, it is open to the plaintiff to file a fresh suit and that is one of the reasons, which has prevailed with the Trial Court. 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. (9) Where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically, but to allow the plaintiff to make necessary amendment, if he seeks to do so. (10) Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. (11) The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. (12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an admitted fact. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed. (12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an admitted fact. While the defendants pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the plaintiffs in this case ought to have been within three years when the right to sue first accrued, the plaintiffs contend that the same does not fall under the said entry but falls under Entry 64 or 65 of the said Schedule to the Limitation Act, which provides for a limitation of 12 years, therefore, according to them, the prayer for declaration of title is not barred by limitation. In such a situation, where there is a dispute as to the bar of limitation, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea of limitation, being disputed, could be made a subject-matter of the issue, after allowing the amendment prayed for. " 14. In B.K.Narayana Pillai vs. Parameswaran Pillai and another ( 2000 (1) SCC 712 ), the Apex court in paragraph 3 has held as follows: "3. 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 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 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." 15. 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." 15. In Om Prakash Gupta vs. Ranbir B.Goyal ( 2002 (2) SCC 256 ), the Supreme Court considered that the subsequent event may pertain purely to changes in law or may be founded on facts. In paragraphs nos. 11 and 12, the court held as follows: - "11. The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted : (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswaralu v. Motor & General Traders, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krisna Iyer, J. affirmed the proposition that the court can, so long as the litigation is pending, take note of updated facts to promote substantial justice. The Court speaking through Krisna Iyer, J. affirmed the proposition that the court can, so long as the litigation is pending, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed. 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties." 16. Similarly in K.Shanmugam vs. S. Lakshmi Ammal (1996 AIHC 3408), this court has considered the question of ordering amendment of plaint for the relief of mandatory injunction regarding the construction put up by the defendant subsequent to the filing of the suit. In the above reported case, the suit is for permanent injunction. The suit was originally filed for permanent injunction, restraining the defendants from in any way interfering with the rights of the plaintiff to enjoy the suit property as a common passage. Later on, an amendment was sought for the relief of mandatory injunction on the ground that after receipt of the order of interim injunction, the petitioners therein constructed a septic tank in the suit property, which completely obstructed the suit common passage. The above facts are almost similar to the present case. 17. Later on, an amendment was sought for the relief of mandatory injunction on the ground that after receipt of the order of interim injunction, the petitioners therein constructed a septic tank in the suit property, which completely obstructed the suit common passage. The above facts are almost similar to the present case. 17. It is stated in the Advocate Commissioner's Report and in the plan annexed to it that the wall on the western side of the cart-track was plastered with mud and that there were stones piled up near that place. The very fact that stones have been piled up near the disputed place shows that there had been some activity. There are sufficient averments in the plaint and in the written statement about the existence of a cart-track. 18. The guiding principle of amendment is that, all amendments can be allowed for the purpose of determining the real question in controversy between the parties to do substantial justice. In the instant case, the amendment sought to be introduced are in line with the existing pleadings and they do not introduce a new case or a cause of action with respect to suit property. The existence of the cart-track is also supported by the Commissioner’s report. There are averments relating to the prevention of usage of the cart-track. Therefore the addition of a relief of mandatory injunction on the same set of facts will not cause serious prejudice to the petitioner, who can let in evidence to prove his title in respect of the said track and with regard to the existence of the wall. The well considered decision of this court reported in 2005 (4) CTC 664 covers almost all the aspects relating to the amendment and squarely applies to the facts of the case. 19. The decision cited by the learned counsel for the petitioner in AIR (37) 1950 Madras 32, deals with a situation, wherein certain facts available to the plaintiff therein were not stated in the original plaint and therefore, the court held that it would not be open to permit an amendment to be made, which would be amounting to introducing a new case. The reasons for not mentioning about the wall has been explained by the respondent and therefore, the judgment is not applicable to the facts of this case. The other judgment reported AIR 1976 Mad. The reasons for not mentioning about the wall has been explained by the respondent and therefore, the judgment is not applicable to the facts of this case. The other judgment reported AIR 1976 Mad. 282 , deals with the case where the relief sought for was totally unconnected with the original prayer. In the instant case, the relief sought for by way of an amendment is only incidental to the main prayer. 20. Courts can always take into consideration of subsequent events, while deciding the amendment petition. I am of the considered opinion that the Lower Court has exercised its discretion properly to do substantial justice to the parties. By the introduction of amendments, the controversy between the parties can be finally determined, avoiding multiplicity of proceedings. There is no reason to interfere with the order the Lower Court. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected C.M.P.No.17249 of 2005 is closed.