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2007 DIGILAW 170 (MAD)

Sivanamalai Gounder & Others v. A. Palanisamy Gounder & Another

2007-01-12

K.RAVIRAJA PANDIAN

body2007
Judgment :- The Civil Revision Petition in C.R.P.No.1932 of 2004 is filed against the order of the trial Court rejecting the application of the petitioners filed in I.A.No. 444 of 2004 in O.S.No. 179 of 2002 to amend the plaint. 2. The petitioners herein filed a suit in O.S.No.179 of 2002 on the file of the District Munsif, Kangeyam for declaration and permanent injunction to declare that A Schedule channel ABCEDF is a common one and for permanent injunction restraining the defendants from demolishing the suit channel and for mandatory injunction to restore suit B Schedule channel. In the plaint the extent of the common suit channel area was originally stated as 4 cents. By means of the above said application, it was sought to amend the same as 5 cents. That application has been dismissed by the trial Court on the premise that the petitioners were not diligent and the application was highly belated. 3. The respondents in the above suit in turn filed a suit in O.S.No. 150/2001 on the file of the very same District Munsif, Kangeyam against the petitioners for declaration that the respondents/plaintiffs are entitled to use the suit cart track for the purpose of taking cattle, to walk and ply the cart and for permanent injunction restraining the petitioners herein from interfering with the user of the cart track. The petitioners filed written statement denying the averments made in the plaint and contending that the common pathway on the western side is 6 ft in breadth and only cattles were being taken through that pathway and that was not used for movement of the carts. In that suit also the petitioner filed I.A.No.443 of 2004 to amend the written statement regarding the existence of the channel by inserting that "the channel lies on the western side" instead of mentioning that the channel is on the "eastern side". The said application has also been rejected on the grounds as aforesaid viz the petitioners were not diligent and the applications were belated. The correctness of both the orders is put in issue before this Court. 4. I heard the learned counsel on either side and perused the materials on record. 5. The said application has also been rejected on the grounds as aforesaid viz the petitioners were not diligent and the applications were belated. The correctness of both the orders is put in issue before this Court. 4. I heard the learned counsel on either side and perused the materials on record. 5. It is true that as per the amended provisions of the Civil Procedure Code the amendment sought for could be granted under the proviso on the Court recording satisfaction as to the deligency of the petitioner. Incidentally, it has to be mentioned that the above two revisions are filed under Article 227 of the Constitution of India. The scope and ambit of exercise of power by High Court under Article 227 of the Constitution of India is examined and explained in number of decisions of the Supreme Court. Useful reference can be had to the judgment of the Supreme Court in Surya Dev Rai vs. Ram Chander Rai and Others (2003 (4) CTC 48). 6. It is fairly settled in law that the amendment of pleadings under Order 6, Rule 17 is to be allowed if such an amendment is required for proper and effective adjudication of controversy between the parties and to avoid multiplicity of judicial proceedings, subject to certain conditions such as allowing amendment should not result in injustice to the other side. However, mere delay in making an amendment application itself is not enough to refuse amendment, as the delay can be compensated in terms of money. Amendment is to be allowed when it does not cost serious prejudice to the opposite side. Useful reference can be had to the judgment of the Supreme Court in M/s. Estralla Rubber vs. Dass Estate Pvt. Ltd. (2002 (2) L.W. 24). 7. Again this Court can take advantage of the decision of the Supreme Court in B.K. Narayana Pillai Vs. Parameswaran Pillai and Another ( 2000 (1) SCC 712 ). In that case the Apex Court after referring to number of decisions, has stated in para 3 that 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. Parameswaran Pillai and Another ( 2000 (1) SCC 712 ). In that case the Apex Court after referring to number of decisions, has stated in para 3 that 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 the Apex Court. It is true that the amendment cannot be claimed as a matter of right under all circumstances but it is equally true that Courts while deciding such prayers should not adopt 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. The amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigations. 8. If those principles are taken into consideration in the context of the present case what is sought to be amended in the plaint is the extent of the common space by correcting the extent as 5 cents instead of 4 and in the written statement the existence of the channel by inserting that the channel lies on the western side of the 4 ft track instead of mentioning that the channel is on the eastern side, which are also mistakes crept in the plaint and in the written statement, this Court is of the view that if the amendment sought for is allowed no prejudice would be caused to the respondents herein. 9. In the light of the above decisions, the orders of the trial Court are set aside and the Civil Revision Petitions are allowed on the petitioners paying cost of Rs.500/ each. The same has to be paid by the petitioners within a period of four weeks from the date of receipt of copy of this order to the respondents and in default, the interlocutory applications for amendment would stand rejected and the Civil Revision petitions would stand dismissed.