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2007 DIGILAW 1310 (MAD)

S. Chellathurai v. Chidambaram Chettiar

2007-04-12

S.NAGAMUTHU

body2007
Judgment :- This civil revision petition has been filed by the petitioner challenging the order-dated 10.03.2006, in I.A.No.3 of 2006 in O.S.No.172 of 2004, on the file of the learned Additional District Munsif, Karaikudi. 2. Brief facts of the case are as follows:- The petitioner herein has filed the suit in O.S.No.172 of 2004, on the file of the learned Subordinate Judge, Devakottai, against the respondents herein for permanent injunction restraining the defendants from trespassing and forming layout in the suit property and for other reliefs. The respondents herein have filed a detailed written statement, wherein they have disputed the claim of the petitioner and further stated that they are in possession and enjoyment of the suit property and therefore, the suit is not maintainable. It appears that the trial was commenced and proof affidavit was filed by the petitioner and the case was posted for cross-examination of the petitioner by the respondents. At that point of time, the petitioner has filed an Interlocutory Application seeking to amend the plaint to add a prayer for declaration, for recovery of possession and for mandatory injunction. But, the said Interlocutory Application was dismissed by the lower Court even without numbering the same. Challenging the said order, the petitioner herein has filed CRP PD No.535 of 2005, before this Court. By an order dated 25.10.2005, this Court has disposed of the CRP, directing the lower Court to take up the unnumbered Interlocutory Application on file and to dispose of the same after hearing both parties. In pursuant to the said direction, Interlocutory Application was numbered as I.A.No.3 of 2004. In the said I.A., the first respondent has filed a counter and resisted the matter. After hearing both parties, the learned Additional District Munsif by an order-dated 10.03.2006, has dismissed the said application. It is the said order of dismissal, which is under challenge in this civil revision petition. 3. In support of I.A.No.3 of 2004, the petitioner herein has filed an affidavit, wherein he has stated that during the pendency of the suit, the respondents have trespassed into the suit property and they have also denied the title of the petitioner and it necessitated to him to file an amendment petition. The said fact is controverted by the respondents in the written statement they have stated that the suit property was in their possession all along. 4. The said fact is controverted by the respondents in the written statement they have stated that the suit property was in their possession all along. 4. The learned counsel for the petitioner would contend that the lower Court ought to have given a liberal approach in amending the plaint because, neither a new cause of action is added to the suits or the basic structure of the suit is not sought to be changed. 5. Per contra, the learned counsel for the respondents would contend that the petitioner is guilty of laches as he was not diligent to file an application for amendment before commencement of trial as required under the provisions of the Code of Civil Procedure. 6. Heard the learned counsel for the petitioner as well as the learned counsel for the respondents. 7. At the outset, I have to refer to the Judgments of the Hon’ble Supreme Court and a Full Bench of this Court. In 2006 (4) SCC 385 (Rajesh Kumar Aggarwal and others v. K.K.Modi and others), wherein in paragraph Nos.15 and 19 the Hon’ble Supreme Court has held as follows:- “15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.” 19. While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 8. Following the Judgment of the Hon’ble Supreme Court, reported in 2006 (6) SCC 498 (Baldev Singh and others v. Manohar Singh and Another) and various other Judgments, a Full Bench of this Court has held in the case reported in 2006 (5) CTC 609 (Hi.Sheet Industries v. Litelon Limited) as follows:- “12.00. Following the Judgment of the Hon’ble Supreme Court, reported in 2006 (6) SCC 498 (Baldev Singh and others v. Manohar Singh and Another) and various other Judgments, a Full Bench of this Court has held in the case reported in 2006 (5) CTC 609 (Hi.Sheet Industries v. Litelon Limited) as follows:- “12.00. Result: In the result, the reference is answered holding: (1) that the delay in filing the Application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the Court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which re necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the Suit. (2) According to the Proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed. (3) The Proviso to Order, Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 1.7.2002 and not to the pleadings instituted prior to 1.7.2002 and while considering the proviso to Order 6, Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the Suit i.e., examination of witnesses, filing of documents, addressing of arguments, etc. and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.” 9. and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.” 9. A perusal of the Judgments of the Hon’ble Supreme Court and a Full Bench of this Court stated above would show that while considering the application seeking for amendment this Court should not go into the correctness or falsity of the main case and it should not record the finding of the merits of the amendment as it should be done in the trial of the suit. Therefore, though there is a dispute between the petitioner and the respondents, whether the defendants trespassed into the suit property subsequent to the filing of the suit as it is claimed by the petitioner or whether the defendants are in possession prior to the filing of the suit and continue to be so, the said question cannot be decided now in this revision, as it is beyond the scope of this interlocutory application as laid down by the Hon’ble Supreme Court and a Full Bench of this Court. 10. Further, the Hon’ble Supreme Court has made it very clear that the object of the rule is that the courts should try the merits of the case and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. Applying the legal dictum, when I perused the materials available on record, I do not find any reason to come to the conclusion that allowing the amendment in this case will cause any prejudice to the respondents. 11. The contention of the learned counsel for the respondent that the petitioner was not diligent to make the application for amendment even before the commencement of trial also deserves no acceptance for the simple reason that as per the Judgment of the Hon’ble Supreme Court in Baldev Singh case, commencement of the trial means recording of evidence, hearing of arguments etc. Here, in this case, admittedly, only proof affidavit has been filed by the plaintiff and he has not even been cross-examined by the defendants. It is not as if the application has been filed in the last moment after the evidence was closed by both sides. Here, in this case, admittedly, only proof affidavit has been filed by the plaintiff and he has not even been cross-examined by the defendants. It is not as if the application has been filed in the last moment after the evidence was closed by both sides. In these circumstances, it cannot be said that the petitioner was not diligent in making the application. 12. The lower Court has dismissed the said application mainly on the ground of delay. The said reason stated by the lower Court cannot be accepted. 13. For all these reasons, I find no option but to set aside the order of the lower Court. While doing so, I have to consider the expenditure which would have been incurred by the respondents because of the delay in filing the amendment application and the same should be adequately compensated by way of imposing appropriate costs. Considering the facts and circumstances of the case, I am of the considered view, imposing a cost of Rs.1,000/- would adequately compensate the respondents in this case. 14. In the result, the civil revision petition is allowed. The order of the learned District Munsif, Karaikudi dated 10.03.2006, made in I.A.No.3 of 2006 in O.S.No.172 of 2004, is set aside and I.A.No.3 of 2006 is allowed on condition that the petitioner shall pay a sum of Rs.1,000/-(One thousand only) as cost directly to the respondents within a period of 15 days from the date of receipt of a copy of this order. No costs. Consequently, connected M.P is closed. 15. At this juncture, the learned counsel for the respondents would make a plea to record that all the defenced available to him pursuant to the amendment may be allowed to be raised by way of additional written statement. The lower Court is directed to allow the respondents to file additional written statement if any and dispose of the suit as expeditiously as possible.