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2007 DIGILAW 4214 (MAD)

Mani Padayachi v. Raju Padayachi & Another

2007-12-14

K.K.SASIDHARAN

body2007
Judgment :- The first respondent in I.A.No.2721 of 2006 in O.S.No.213 of 2006 on the file of Principal District Munsif Court, Cuddalore is the petitioner in this civil revision petition. 2. The first respondent in the revision preferred a suit in O.S.No.213 of 2006 before the trial Court for a decree of declaration in respect of his title to the suit property and for consequential injunction restraining the defendants therein from interfering with the peaceful possession and enjoyment of the property. In the said suit, it is the contention of the plaintiff that he purchased the property as per sale deed dated 12. 1966 and the property was leased out to one Natesa Padayatchi and Jayaraman orally and they cultivated the property for ten years and then executed a registered lease release deed on 15. 1983 and surrendered possession of the property to the plaintiff. According to the plaintiff, the first defendant is the owner of the property on the west and he wanted to purchase the property but failed to do so and subsequently the defendants colluded together and attempted to trespass into the suit property on 4. 2006 and accordingly the suit was laid. 3. The first defendant filed his written statement wherein he contended that he has agreed to purchase the property from the plaintiff on a sale consideration of Rs.1,53,000/- and an agreement was entered into on 15. 1995 and the said document was attested by the son of the plaintiff. In pursuance of the said agreement a sum of Rs.75,000/- was paid as advance and the balance sum of Rs.78,000/- was paid in June, 1995 and the property was delivered to the first defendant and accordingly he is stated to be in possession of the property. It is the further contention of the first defendant that out of the said money, the plaintiff purchased another property. Since the parties were very close, the sale deed was not executed, though possession of the property is still with the first defendant from June, 1995 onwards. It is the further contention of the first defendant that he is entitled to the benefit of Section 53A of the Transfer of property Act as he has been in possession and enjoyment of the property in part performance of the contract. It is the further contention of the first defendant that he is entitled to the benefit of Section 53A of the Transfer of property Act as he has been in possession and enjoyment of the property in part performance of the contract. The first defendant also expressed his willingness to have the sale deed executed in his favour and finally prayed for dismissal of the suit. .4. While the suit was pending, the plaintiff filed I.A.No.2721 of 2006 for an amendment to incorporate a para as Para III sub clause (5) of the plaint, which is extracted below:- ."5(a) Pending suit the defendants herein high handedly trespassed into the suit property on 12. 2006 and now they are in unlawful possession and enjoyment of the suit property. They have no right whatsoever in the suit property. Hence this suit is amended for declaration of plaintiffs title and for recovery of possession of the suit property from the defendants with mesne profits from 12. 2006 till the date of delivery of possession." 5. In the relief portion, the plaintiff sought an additional prayer to be incorporated for a decree directing the defendants to surrender vacant possession of the suit property to the plaintiff and to pay mesne profits from 12. 2006 till the date of delivery of possession which may be directed to be determined by an enquiry under Order 20 Rule 12 of the Code of Civil Procedure. 6. The said application was opposed by the petitioner herein being the first respondent in the said application. It is the contention of the petitioner herein in the said application that though the suit was filed in April, 2006, no interim injunction was granted; that the evidence of the plaintiff was over and he was cross examined on 30.11.2006 and 12. 2006 and the matter was adjourned to 12. 2006 for further evidence on the side of the plaintiff and from 12. 2006 time was taken till 112. 2006. When the matter came up on 12. 2006 there was no whisper about the trespass alleged to have taken place on 12. 2006 and only on 112. 2006 the application for amendment was filed. The petitioner also contended that the suit originally filed was for a decree of possession and injunction and only a false case of alleged trespass on 12. 2006 there was no whisper about the trespass alleged to have taken place on 12. 2006 and only on 112. 2006 the application for amendment was filed. The petitioner also contended that the suit originally filed was for a decree of possession and injunction and only a false case of alleged trespass on 12. 2006 is alleged in the application and that there is no bonafides in the application for amendment and as such prayed for dismissal of the application. 7. The learned Principal District Munsif, Cuddalore allowed the application for amendment as per order dated 1. 2007 and the said order is now challenged in this revision by the first respondent in I.A.No.2721 of 2006 in O.S.No.213 of 2006. 8. In the above factual matrix, I have heard Ms.R.Meenel, learned counsel for the petitioner and Thiru.S.K.Raghunathan, learned counsel for the first respondent. .9. The learned counsel for the revision petitioner contended that altogether a different case is projected by way of amendment and as such the amendment cannot be allowed and that too in a case like this where the evidence of the plaintiff is practically over and it is posted only for further evidence of the plaintiff, if any. According to the learned counsel, the suit was filed as if the plaintiff was in possession and now by way of amendment he is projecting a case as if he was dispossessed and seeking for recovery of possession. Therefore the learned counsel prayed for allowing the revision by setting aside the order of the court below. 10. The learned counsel for the first respondent submitted that the cause of action for filing the amendment has arisen during the pendency of the suit and as such for a fair disposal of the whole matter the amendment sought has to be allowed, as otherwise it will have the result of multiplicity of suits. The learned counsel relied on the decision of the Apex Court reported in 2006(2) Law Weekly 776 (RAJESH KUMAR AGGARWAL & OTHERS v. K.K.MODI & OTHERS) in support of his plea for allowing the amendment. 11. I have considered the rival submissions and also the order of the learned trial Judge. I do not find any error in the said order so as to interfere in a proceeding under Article 227 of the Constitution of India. 12. 11. I have considered the rival submissions and also the order of the learned trial Judge. I do not find any error in the said order so as to interfere in a proceeding under Article 227 of the Constitution of India. 12. The suit is of the year 2006 and as per the affidavit filed in support of the application for amendment the first respondent herein alleged that the petitioner has trespassed into the property on 12. 2006 and prevented him from enjoying the property and he is not in lawful possession and enjoyment of the suit property from 12. 2006, which resulted in filing an application for amendment taking into account the subsequent events. 13. The learned counsel for the revision petitioner vehemently contended that altogether a different case is projected in the amendment application and as such, such an amendment changing the very nature of the suit cannot be allowed. .14. In the said factual background it is to be seen as to whether the court while considering the application for amendment could be permitted to look into the merits or otherwise of such amended pleadings when the very application for amendment is pending for decision as to whether the amendment should be permitted or not. It is not as if after amendment, the other party is not given a chance to oppose the prayer made in the amended plaint by filing additional written statement and to oppose the plaint as amended by taking all defences available to the said party both on facts as well as on law. 15. In the judgment reported in 2006(2) Law Weekly 776 (RAJESH KUMAR AGGARWAL & OTHERS v. K.K.MODI & OTHERS), the Apex Court considered the ambit of Order 6 Rule 17 of the Code of Civil Procedure and held that the court may at any stage of the proceeding allow either party to alter or amend his pleading and the object of the rule is that the parties should be given a reasonable opportunity to substantiate their case for the purpose of determining the real question in controversy, provided of course it does not cause injustice or prejudice to the other side and held thus: "17. Order VI Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. Order VI Rule 17 consists of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic and cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience an the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. 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 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." 16. 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 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." 16. It is evident from the amendment application that instead of a decree of declaration and injunction, the plaintiff now seeks to get a decree of possession as according to the plaintiff, the defendants are in unlawful possession of the property from 12. 2006. The said event of trespass appears to have taken place on 12. 2006, long after the institution of the suit and after the trial commenced. In this case it cannot be said that the application is so belated for the reason that the cause of action for amendment has arisen only during the pendency of the suit. As observed by the Apex Court in the decision (2006(3) Law Weekly 776) cited supra, since the cause of action arose during the pendency of the suit it is a valid reason for allowing the amendment and more so, on account of the fact that the basic structure of the suit remains unchanged and there was only a change in the nature of relief claimed. Therefore it will be open to the petitioner herein to raise all his objections with regard to the plaint as amended and to adduce evidence to disprove the contention of the plaintiff. 17. As such I do not find any reason to interfere with the order of the learned trial Judge. Accordingly the civil revision petition is liable to be dismissed. It is needless to say that the defendant should be given an opportunity to file additional written statement and the court has to dispose the suit without in any way being influenced by the observations made either in the impugned order or in this revision. 18. In the result, the order dated 1. 2007 in I.A.No.2721 of 2006 in O.S.No.213 of 2006 on the file of the Principal District Munsif, Cuddalore is confirmed and the revision is dismissed. Consequently, the connected MP is closed. No costs.