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2006 DIGILAW 864 (MAD)

Synam Beevi Ammal v. Seeni

2006-03-29

R.BANUMATHI

body2006
Judgment :- 1. The Revision Petition is preferred against the Order made in I.A. No. 282/2005 in O.S. No. 197 of 2000, dated 3.10.2005, on the file of the District Munsif-cum-Judicial Magistrate, Keeranoor, Pudukottai District, dismissing the Amendment Application. Plaintiff is the Revision Petitioner. 2. Plaintiff has filed O.S. No. 197/2000 for Permanent Injunction relating to nine items of properties. The 7th Item of property is S.No. 293/4 Nanjai 2.48.0 H. The Plaintiff has filed I.A. No. 282/2005 to amend the 7th Item S. No. 293/4 - 2.48.0 H. as S. No. 293/4B - 2.32.0 H. According to the Plaintiff, the adjacent property of about sixteen cents belong to one Meenal and that after the filing of the Suit, she came to know that S.No. 293/4 has been sub-divided as 293/4 - 16 cents and S. No. 293/4B - 2.32.0 H, which she came to know only when she obtained Adangal for Fasli 1410 to 1415 and hence sought for amendment. 3. The Amendment Application was resisted by the Defendants contending that after the filing of the Suit, Survey Number and extent cannot be changed. It was further alleged that the reasons set forth for amending the Survey Number is not convincing. 4. The consideration of the contention of both parties and placing reliance upon my judgment in Loganathan v. Kaliappa Gounder and Others, 2005 (3) MLJ 294 , the learned District Munsif found that after the C.P.C. (Amendment) Act, 1999, no application for amendment of the pleading shall be allowed after the trial has commenced, and dismissed the Petition. 5. Aggrieved against the dismissal of the Amendment Petition, the Plaintiff has preferred this Revision. The learned Counsel for the Revision Petitioner Plaintiff has submitted that the Schedule Property is sub-divided as S. No. 293/4 and S. No. 293/4-B [property of the Petitioner] and hence ought to have allowed the amendment. It is further contended that the suit is of the year 2000 and as per the decision in Rethinam @ Anna Samuthiram Ammal and Others v. Syed Abdul Rahim, 2005 (3) CTC 321, any pleading filed before 1.7.2002 would not be governed by the Amendment Act and the pleading is to be decided as per law, as it stood prior to 1.7.2002. 6. Countering the arguments, the learned Counsel for the Defendant has submitted that the Petitioner has not produced any material showing the subdivision in Survey Number. 6. Countering the arguments, the learned Counsel for the Defendant has submitted that the Petitioner has not produced any material showing the subdivision in Survey Number. It is further submitted that in the Suit of the year 2000, the Plaintiff has belatedly filed the Amendment Petition and the Court below has rightly dismissed the Application and the same is to be confirmed. 7. The suit O.S. No. 197/2000 was filed on 14.8.2000. In the impugned Order, the learned District Munsif has relied upon my Judgment reported in Loganathan v. Kaliappa Gounder and others, 2005 (3) MLJ 294 and held that in view of Proviso to Order 6, Rule 17, C.P.C. Application for amendment cannot be allowed 8. The point that arises for consideration is, "whether the Proviso under Order 6, Rule 17, C.P.C. would be applicable, to the Suits filed prior to 1.7.2002?” 9. In the decision reported in Loganathan v. Kaliappa Gounder and others, 2005 (3) MLJ 294 , the Suit was filed on 10.7.2000 and the Written Statement was filed on 16.7.2001. The Amendment Application was filed on 22.1.2003. In the factual background of that case since the Amendment Application was filed nearly 1-1/2 years after the Defendants 2 and 3 have filed the Written Statement, I have found that there was no justification for allowing the Amendment Application. 10. Inter-alia, I have taken the view that after the trial has commenced, no Application for amendment of pleadings shall be allowed in view of new Proviso added to Order 6, Rule 17, C.P.C. in C.P.C. (Amendment) Act, 1999, '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'. In the said decision, I have thus taken the view that the provisions of Order 6, Rule 17, C.P.C. would be applicable even in the Suits filed prior to 1.7.2002. That view was in the factual aspect of that case, that the Amendment Application was belatedly filed nearly 1-1/2 years after the filing of the Written Statement and the trial had commenced. 11. In the said decision, my view that Order 6, Rule 17, C.P.C. would be applicable even to Suits filed prior to 1.7.2002’ does not appear to be a correct view. 11. In the said decision, my view that Order 6, Rule 17, C.P.C. would be applicable even to Suits filed prior to 1.7.2002’ does not appear to be a correct view. In the said case, I did not have occasion to consider Section 16 of the Civil Procedure (Amendment) Act, 2002, which contains provisions relating to Repeal and Savings. We may usefully refer to C.P.C. Amendment Act, 1999 and C.P.C. (Amendment) Act, 2002. Under Section 16(iii) of the Code of Civil Procedure (Amendment) Act, 1999 in the First Schedule, it was provided that Rules 17 and 16 in Order 6 shall be omitted. In other words, the Amendment Act, 1999 abrogated the provision for the amendment of pleadings under Order 6, Rule 17, altogether. However, as per the Amendment Act, 2002, Order 6, Rule 17, as it stood before Amending Act, 1999 has been retained with the addition of the, Proviso, which, has already been extracted. This has been done under Section 7 of the Code of Civil Procedure (Amendment) Act, 2002. 12. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows: "16. Repeal and savings. 1) …………… 2)…………… a) …………………. (b) the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedules omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act: C.................... 13. The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure, (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act, 2002. As already indicated, the Code of Civil Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002 came into force with effect from 1.7.2002. By the bare reading of the provisions contained in Proviso shall not apply to in respect of any pleadings filed before the commencement-of the amended Code. 14. In Rethinam @ Anna Samuthiram Ammal and others v. Syed Abdul Rahim, 2005 (3) CTC 321, Justice P.K. Misra had taken the correct view and observed that the new Proviso to Order 6, Rule 17, C.P.C. inserted by Amendment Act, 2002 will have no Application to the pleadings filed before 1.7.2002.The learned Judge has held: "Pleadings in this context obviously include the plaint or written statement.Therefore, in respect of the plaint or written statement filed before 1.7.2002, the Proviso to Order 6, Rule 17, would have no applicability." 15. Before Justice P.K. Misra, another decision in Subba Naicker, P. v. Veluchamy Naicker, 2004 (1) CTC 742 , was brought to the notice of the learned Judge. Pointing out that specific provisions contained in Section 16(2)(b) of C.P.C. (Amendment) Act, 2002 had not been brought to the notice of the learned Judge, Justice P.K. Misra has observed that the judgment rendered in Subba Naicker, P. v. Veluchanty Naicker, 2004 (1) CTC 742 is rendered per incuriam. In view of the clear language contained in Section 16(2) of the Code of Civil Procedure (Amendment) Act. I am respectfully in agreement with the view taken by Justice P.K. Misra. 16. In the case in hand, the suit was filed on 4.8.2000 prior to comin into force of C.P.C. (Amendment) Act, 2002. The Plaintiff only sseekss amend the Survey Number of the 7th Item, i.e. S. No. 293/4 - 2.48 Acres S.No.293/4B - 2.32.0 H. According to the Plaintiff, she came to know about the sub-division of S. No. 293/4 as S.No.293/4 - 16 cents and S.No.293/4B 2.32.0H only when she obtained Adangal for the Fasli 1410 to 1415. To substantiate the averments, the Plaintiff had also produced the patta grant showing sub-division. The present 7th item standing in the name of Plaintiff is S. No. 293/4B - 2.32.0H. There seems to be some variance in extent of proposed Amendment. In the Amendment Petition it is stated as No. 293/4B - 2.32 cents. But in the patta produced, it is stated as 2.32.0H. The present 7th item standing in the name of Plaintiff is S. No. 293/4B - 2.32.0H. There seems to be some variance in extent of proposed Amendment. In the Amendment Petition it is stated as No. 293/4B - 2.32 cents. But in the patta produced, it is stated as 2.32.0H. Hence this Court has recorded the finding on the basis of the patta, i.e. subdivision S. No. 293/4B - 2.32.OH. While allowing the carrying out the amendment, the Trial Court may clarify the position and act accordingly. By amending the Survey Number, cause of action would not change. Further, there is no necessity for any further pleadings. Under such circumstances, the amendment sought for is to be allowed. 17. For the foregoing reasons, the order made in I.A. No. 282/2005 in O.S. No. 197/2000 dated 3.10.2005 on the file of the District Munsif cum Judicial Magistrate, Keeranoor, Pudukkottai District is set aside and this Revision is allowed. No costs. 18. After filing of the amended Plaint copy, it is directed that the Trial Court shall afford sufficient opportunity to the Respondent/Defendant to file additional Written Statement, if any. It is further directed that the Trial Court may not be influenced by any of the views expressed in this order.