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2008 DIGILAW 3310 (MAD)

Puttamma & Others v. Munusamy & Others

2008-09-09

M.VENUGOPAL

body2008
Judgment :- 1. This civil revision petition is filed against the order passed in I.A.No.45 of 2007 in O.S.No.55 of 2004 dated 07.02.2008 by the I Additional District Judge, Krishnagiri in dismissing the amendment application filed under Order 6 Rule 17 read with Section 151 of Civil Procedure Code. 2. The petitioners/plaintiffs have filed I.A.No.45 of 2007 under Order 6 Rule 17 read with Section 151 of Civil Procedure Code praying for permission to amend the Plaint on the ground that in the suit filed for partition the trial was over and that the case has been posted for arguments and that the Village Administrative Officer of Ispathpalli Village has deposed that the properties described in A schedule in the petition are not belonging to the joint family and that after enquiry and verification as per chitta produced by him and as per written statement of defendants, the properties described in B schedule belong to the joint family and hence, for proper adjudication of the case, the properties described in A schedule of the petition are to be deleted and the properties described in B schedule are to be added by amending the plaint and that the nature of the suit will not get changed. 3. 3. In the counter filed by the fourth respondent/fourth defendant and adopted by respondents 5 to 24 it is among other things mentioned that a detailed written statement has been filed as early as on 26.08.1998 by the defendants giving separate schedule for the properties which are in their exclusive possession and enjoyment and now it is not open to the petitioners/plaintiffs to contend that only after the examination of Village Administrative Officer they have come to know that the properties described in A schedule do not belong to the so called joint family and in the written statement, it has been mentioned clearly that A schedule properties belonged to third parties and anyhow they are no objection in deleting the above A schedule properties described in the proposed amendment petition as the same will not cause prejudice to the respondents/ defendants in the suit and that the respondents have nowhere admitted that the properties described as B schedule in the amendment petition belong to the so called joint family of the petitioners and defendants and per contra, they have categorically denied the right of the petitioners/plaintiffs to seek partition in respect of the above properties and that the evidence on the side of defendants has been closed even on 27.07.2007 and the suit is adjourned from 02.08.2007 for hearing the arguments. 4. It is also the contention of the respondents/ defendants that after the amendment to Civil Procedure Code (By Act 22 of 2002) there is a specific bar that the amendment shall not be allowed after the trial has commenced, unless the parties who come forth with the amendment application that inspite of due diligence the petitioners could not have raised the matter before the commencement of the trial and that element is totally absent in the present case and therefore prays for dismissing the application. 5. The lower Court while passing orders in I.A.No.45 of 2007 dated 07.02.2008 has inter alia observed that in the present case, the defendants have already pleaded in their written statement regarding A schedule properties are purchased by own income of the respondent and if really the petitioners filed the amendment petition with bonafide intention definitely they should have filed in earlier stage. Therefore, the petitioners contention is not applicable one. Therefore, the petitioners contention is not applicable one. Under these circumstances, the proposed amendment petition is not maintainable and that this Courts opinion is that the proposed amendment is barred as per amended Civil Procedure Code and further that the proposed amendment application is allowed, there is a possibility to change the character of the suit etc. and resultantly, dismissed the petition as not maintainable. 6. The learned counsel for the revision petitioners/ plaintiffs contends that the lower Court has not taken into consideration of the fact that the Court may at any stage to alter or demand his pleadings and that the lower Court ought to have seen that the properties which has to be included are ancestral in nature and are joint family property and further that the learned Judge ought to have considered that the amendment sought for does not in any manner alter the cause of action of the suit and that the lower Court has not borne in mind of the fact that the respondents/defendants had no objection for deletion of the properties in the A and B schedule indicated in the petition and in any event the lower Court ought to have appreciated the fact that delay is not a ground to deny the amendment application and therefore, prays for allowing the revision petition in the interest of justice. 7. 7. The learned counsel for the respondents submits that a detailed written statement has been filed as early as on 26.08.1998 by the defendants giving separate schedule for the properties which are in their exclusive possession and enjoyment and now at this distance of time, it is not open to the petitioners/plaintiffs to contend that only after the examination of Village Administrative Officer they have come to know that the properties described in A schedule do not belong to the so called joint family and as a matter of fact, in the written statement filed by defendants it is mentioned that A schedule properties belonged to third parties and in regard to A schedule properties, the respondents have filed a counter mentioning that they have no objection in deleting the A schedule properties described in the proposed amendment application and that the respondents have nowhere admitted that the properties described in the B schedule belong to the so called joint family of the petitioners and defendants and that in the main case the evidence on the side of defendants was closed on 27.07.2007 and that the matter is pending from 02.08.2007 for hearing arguments and since the trial has commenced the amendment application has not been filed with due diligence by the petitioners and therefore, prays for dismissing the application. 8. The learned counsel for the revision petitioners cites the decision Usha Devi V. Rijwan Ahamd and others ( (2008) 2 SCC 717 at page 723) wherein the Honourable Supreme Court has observed as follows: "5. Having heard the learned counsel for the parties, we are satisfied that the appeal deserves to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it by law and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. It is true that the plaintiff-appellant ought to have been diligent in promptly seeking the amendment in the plaint at an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of the execution in the event of the plaintiff appellant succeeding in the suit." 9. He also relies on the decision of Patna High Court Sheo Pujan Rai and Others V. Ram Ekbal Rai @ Ekbai Rai and Others (C.R.No.980 of 2006 decided on 07.01.2008) wherein it is inter alia observed that "Plaintiff-opposite parties were seeking addition of the properties, which were, admittedly, joint ancestral properties and were covered under the same set of facts, which have already been decided by the learned trial Court at the time of passing of the preliminary decree and that such addition is necessary to settle the controversy as a whole." 10. Yet another decision of this Court Radhakrishnan V. Pattu Ammal and others ( 2006 (5) CTC 396 ) has been relied on by the learned counsel for the revision petitioners/ plaintiffs to the effect that "Pre-trial amendment should be allowed liberally when such amendment does not alter basic structure of Suit but is intended to alter nature of relief for correcting factual mistakes." 11. He further presses into service the decision of this Court Jayamani and another V. District Collector, Coimbatore District, Coimbatore and others ( (2007) 3 MLJ 897 ) wherein it is observed that "the proviso to Order 6 Rule 17 of Civil Procedure Code is not applicable, in respect of the suits/pleadings instituted before the commencement of the amended Code." 12. It is to be borne in mind that the power to allow an amendment should be liberally exercised. The aim in allowing an amendment is to avoid plurality of proceedings in the eye of law. As a matter of fact, an amendment which does not totally alter the character of an action ought to be granted as a matter of course. The aim in allowing an amendment is to avoid plurality of proceedings in the eye of law. As a matter of fact, an amendment which does not totally alter the character of an action ought to be granted as a matter of course. However, care should be taken to see that prejudice or an injustice are not inflicted upon the other party under the pretext of an amendment. As a general rule, the technicalities of law ought not to be permitted to hinder a court of law in the administration of justice between the parties, in the considered opinion of this Court. Generally speaking there is no injustice in granting an amendment if the opposite party can be compensated in terms of costs. Undoubtedly, it is the discretion of the court to allow an amendment application or not. It cannot be gainsaid that the rules of procedure are intended for the administration of justice and a litigant should not be refused a fair, prudent and just relief merely because of some negligence, mistake or inadvertence or even infraction of the rules of procedure. However, the order of costs to be imposed must be quite reasonable and the same should not be by way of punishment. 13. Admittedly, the suit is pending for long time from 02.08.2007 for hearing arguments, as per the averment made in para 7 of the counter filed by the fourth respondent/ fourth defendant and adopted by other respondents. I.A.No.45 of 2007 praying to amend the plaint has been filed in August 2007. .14. 13. Admittedly, the suit is pending for long time from 02.08.2007 for hearing arguments, as per the averment made in para 7 of the counter filed by the fourth respondent/ fourth defendant and adopted by other respondents. I.A.No.45 of 2007 praying to amend the plaint has been filed in August 2007. .14. In as much as the petitioners/plaintiffs pray for deleting the properties described in A schedule of the application because of the fact that Village Administrative Officer, Ispathpalli Village has deposed that these properties do not belong to joint family and further since they want to add the properties described in B schedule (of the application) by amending the plaint overriding technicalities, this Court is of the view that the amendment prayed for by the petitioners/plaintiffs will not change the character of the suit in any manner because of the simple fact that the suit is one for partition and further that this Court opines that the said amendment is necessary for the purpose of determining the real questions in controversy and that the amendment will not change the character of the suit in any event and in that perspective, this Court exercising its discretion, allows the application to prevent aberration of justice by directing the petitioners/ plaintiffs to pay a sum of Rs.5,000/-(Rupees five thousand only) as costs to the respondents/defendants by means of depositing the same to the credit of O.S.No.55 of 2004 on the file of I Additional District Judge, Krishnagiri within 10 days from the date of receipt of a copy of this order. On such deposit made by the petitioners/plaintiffs, the respondents/defendants are at liberty to file necessary payment out application before the trial Court for receiving the cost of Rs.5,000/-ordered by this Court as per Civil Rules of Practice in the manner known to law. 15. In the result, the Civil Revision Petition is allowed. The order passed by the I Additional District Judge, Krishnagiri in I.A.No.45 of 2007 is set aside by this Court for the reasons assigned in this revision. Therefore, the reasons assigned by the learned I Additional District Judge, Krishnagiri in dismissing the application I.A.No.45 of 2007 are not correct. Liberty is also given to both parties to adduce oral and documentary evidence in lieu of the amendment application having been allowed by this Court. Therefore, the reasons assigned by the learned I Additional District Judge, Krishnagiri in dismissing the application I.A.No.45 of 2007 are not correct. Liberty is also given to both parties to adduce oral and documentary evidence in lieu of the amendment application having been allowed by this Court. Since the suit reportedly pending from 02.08.2007, the learned I Additional District Judge, Krishnagiri is directed to dispose of the main suit viz., O.S.No.55 of 2004 on his file within four months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.