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2007 DIGILAW 133 (MAD)

E. Sarojini & Another v. Mahendran & Others

2007-01-10

R.BANUMATHI

body2007
Judgment :- This revision is directed against the Order of dismissal of the amendment application filed in I.A.No.50/2000 in A.S.No.212/1999, on the file of the Additional District Court, Salem. 2. Relevant facts are as follows:- Petitioners/Plaintiffs have filed O.S.No.779/1993 on the file of II Additional District Munsif Court, Salem for Declaration and Permanent Injunction. The trial Court granted Decree for Permanent Injunction alone and the relief of Declaration was negatived. Challenging the Judgment and Decree of the trial Court, Plaintiffs have filed A.S.No.212/ 1999. During the pendency of the appeal, Plaintiffs filed I.A.No.50/2000 under Or.6, R.17 CPC to amend the plaint. 3. Plaintiffs have filed the suit on the averment that the suit property was originally purchased by their father Ayyankutti under Registered Sale Deed dated 06.05.1952 and the suit property fell to the Plaintiffs share under a registered Partition Deed dated 04.02.1981. The Plaintiffs sought to amend the plaint for adverse possession alleging that they were in possession and enjoyment of the suit property till the property was allotted to their share under the said Partition Deed dated 04.02.1981. In the appeal stage, Plaintiffs sought to amend the plaint that they prescribed title to the suit property by adverse possession. That application was strongly opposed by the Respondents/Defendants. 4. The Plaintiffs have earlier filed the suit on the basis of the Sale Deed in favour of their father dated 06.05.1952 and the Partition Deed dated 04.02.1981. Observing that the plea of adverse possession introduces a new and inconsistent plea, the learned Additional District Judge dismissed the application. 5. Assailing the impugned Order, the learned Counsel for the Petitioners submitted that instead of considering the amendment application, the Appellate Court has erroneously gone into the merits of the proposed amendment. Contending that amending application could be filed at any stage of the proceedings, the learned Counsel submitted that delay cannot be the reason for declining the amendment. Reliance was placed upon 2003 (10) SCC 242 and 2000 (1) SCC 712 . 6. The learned Counsel for the 3rd Respondent has submitted that the Plaintiffs cannot take an inconsistent plea by pleading adverse possession and since the application was filed at a belated stage, the Appellate Court has rightly dismissed the application. In support of his contention, the learned Counsel has placed reliance upon 2006 (1) CTC 55 and 2006 (1) CTC 280. 7. In support of his contention, the learned Counsel has placed reliance upon 2006 (1) CTC 55 and 2006 (1) CTC 280. 7. In the suit, Plaintiffs claimed right to the suit property through documents - Sale Deed dated 06.05.1952 in favour of their father Ayyankuyty and the Partition Deed dated 04.02.1981, in which the suit property was allotted to the Plaintiffs share. But in the appellate stage, Plaintiffs sought to amend the plaint that they are in continuous possession and enjoyment of the suit property for more than the statutory period and have prescribed title by adverse possession. The proposed amendment will introduce a new case and in effect, virtually change the character of the case. The proposed amendment is not merely an additional approach to the facts but raises a new case. Plaintiffs have earlier claimed right to the suit property through the Sale Deed and Partition Deed and now seek to amend the plaint by introducing plea of adverse possession. The Appellate Court has rightly held that the proposed amendment would introduce a new and inconsistent case. 8. Submitting that amendment of pleadings should be permitted where it would result in solution of real controversies between the parties, the learned Counsel for the Petitioners placed reliance upon 2000 (1) SCC 712 [B.K.Narayana Pillai Vs. Parameswaran Pillai], in which the Supreme Court has held as under:- "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 interest 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 hyper technical 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." No doubt, the power to allow amendment is wide. 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." No doubt, the power to allow amendment is wide. But amendment cannot be allowed where the proposed amendment raises different case and where the nature and character of the suit is likely to be changed. This is all the more so, when the proposed amendment was sought for in the appellate stage. 9. The learned Counsel for the Petitioners contended that amendment could be allowed at any stage of the proceedings. Of course, amendments may be allowed before or at, or after the trial or even after Judgment or even on appeal. Amendment could be allowed even in appeal, provided there is a foundation of the amendment by way of pleadings or facts obtaining in the case. In this case, Petitioners seek to introduce totally a new case by seeking to introduce the plea of adverse possession. The trial Court has negatived the relief of Declaration. While so, it would be improper for the Appellate Court to allow the pleadings to be amended so as to amend the findings on which trial Court has already declined the relief. 10. Amendment can be allowed even in the Appellate Court, if the evidence on the proposed amendment is already on record and no prejudice is going to be caused to the Defendant. Plea of adverse possession is a mixed question of law and facts. To establish adverse possession, oral and documentary evidence is to be adduced. If the proposed amendment is allowed, an opportunity has to be given to the Defendant to file additional Written Statement on the plea of adverse possession and additional issue may have to be framed and the parties would have to adduce further evidence to substantiate their case. The entire trial may have to reopened and the concluded matter would be upset, thereby causing serious prejudice to the Respondents/Defendants, who partly succeeded in the lower Court. In consideration of the stage in which the amendment application was filed and other circumstances, the Appellate Court has rightly dismissed the amendment application and there is no reason calling for interference. 11. In consideration of the stage in which the amendment application was filed and other circumstances, the Appellate Court has rightly dismissed the amendment application and there is no reason calling for interference. 11. In the result, the Revision Petition fails and the same is dismissed. No costs. Consequently, CMP No.13568/2001 is also dismissed.