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2008 DIGILAW 4584 (MAD)

V. Barani v. K. Krishnamurthy & Others

2008-12-08

M.VENUGOPAL

body2008
Judgment :- 1. The civil revision petitioner/petitioner/plaintiff has filed the present civil revision petition as against the orders dated 110. 2008 in I.A.No.724 of 2008 in O.S.No.27 of 2006 passed by the Principal Subordinate Judge, Puducherry in rejecting the part of the relief in paragraph 5 of the prayer portion and totally rejecting the prayer portion in paragraph 6 of the amendment application. 2. The learned counsel for the petitioner/plaintiff urges before this Court that the order of the trial Court in not acceding to the request of the revision petitioner in regard to the disallowed portion of prayer made in the amendment application is contrary to law and weight of evidence of the case and that the trial court has not taken into account of the fact that the prayer made for amendment in later part of amendment in paragraph 5(1) and 6 of the application are consequential in nature and no separate prayer requiring the application under Order 6 rule 17 of CPC and that once the trial Court has allowed the application under Order 1 Rule 10 of CPC, a prayer has to be necessarily made and therefore the necessity for making such a prayer is also stated in the affidavit itself and these aspects of the matter have not been taken note of by he trial Court in proper perspective and more over the trial Court has not taken into account of the valuation paragraph which also has to be suitably amended into Rs.15 Lakhs and the Court fee of Rs.1,12,500/- and therefore prays for allowing the present civil revision petition in the interest of justice. 3. The learned counsel for the petitioner/plaintiff relies on the decision Puttamma & ors v- Munusamy & others(2008)8 MLJ 463 whereby it is observed that amendment which does not totally alter the character of an action has to be granted as a matter of course, but care should be taken to see that prejudice or injustice is not inflicted upon the opposite party etc., 4. Per contra, the learned counsel for the respondents submits that the present application I.A.No.724 of 2008 filed by the revision petitioner is beyond the scope of consequential amendment and the present I.A.No.724 of 2008 is beyond the scope of I.A.No.452 of 2006 and the trial Court has passed a reasoned order while negativing the claim of the revision petitioner and the same need not be interfered by this Court at this stage sitting in revision. 5. This Court has paid its anxious consideration to the arguments advanced by the learned counsel for the parties and noticed their contentions. 6. It is to be noted that in a civil suit, the plaintiff is the dominus litus. However, the said concept is not an absolute rule in the considered opinion of this Court. More over, the theory of dominus litus should not be over stretched in the matter of impleading all parties. No doubt, it is the duty of the Court to ensure that if or deciding the real disputes/controversies, a person is a necessary party that such a person has to be impleaded. Earlier I.A.No.452 of 2006 praying permission of the Court to implead necessary parties has been filed by the revision petitioner/plaintiff and that has been dismissed by the trial Court, against which the civil revision petition No.819 of 2008 has been filed by the revision petitioner before this Court and the same has been allowed. 7. As far as the present case is concerned, in the plaint filed by the revision petitioner/plaintiff it is inter alia averred that the plaintiff is therefore entitled to enforce the agreement of sale executed by the defendant. But, however, the plaintiff is now enforcing the sale agreement executed by the defendant partly i.e., only to the extent of 25 Ares 25 Centiares of the suit property, in view of the delivering the possession of the same to the plaintiff and by taking the advance amount paid by the plaintiff to the defendant on sale consideration. Even in the prayer column relief for passing a decree, directing the defendant by executing the sale deed in favour of the plaintiff in respect of the "B" schedule property etc., has been asked for by the revision petitioner/plaintiff. 8. Even in the prayer column relief for passing a decree, directing the defendant by executing the sale deed in favour of the plaintiff in respect of the "B" schedule property etc., has been asked for by the revision petitioner/plaintiff. 8. The learned counsel for the revision petitioner/plaintiff submits that Order 1 Rule 10 (4) CPC enjoins that necessary amendment can be brought into by the plaintiff and since the Order 1 Rule 10(2) of CPC application viz., I.A.No.452 of 2006 has been allowed earlier by the High Court in view of the orders passed in CRP(PD) NO.819 of 2008, there is no impediment for the trial Court to allow the I.A.No.724 of 2008 and since this has not been done by the trial Court, it has caused prejudice to the revision petitioner/plaintiff. It is true that the power to strike or add the parties are exercised at any stage of the proceedings before framing of issues by the trial Court. In this connection, it is pertinent to point out that Order 6 Rule 17 of CPC deals with amendment of pleadings. There is no two opinion in regard to the fact that power to allow the amendment must be exercised by a Court of Law in a liberal fashion, with an object that plurality of proceedings shall be avoided. 9. It cannot be gain said that the technicalities of law should not be an irritant in the administration of justice between the parties. But one should also bear in mind, the important fact that the consequential amendment which the civil revision petitioner/plaintiff prays for must not alter and be substituted for a cause of action on the ground of which original lis has been raised. Further, the consequential amendment sought for by the revision petitioner/ plaintiff should not cause prejudice to the other side. 10. Further, the consequential amendment sought for by the revision petitioner/ plaintiff should not cause prejudice to the other side. 10. On going through the orders passed by the trial Court in I.A.No.724 of 2008, this Court is of the considered view that the disallowed portion of amendment sought for in I.A.No.724 of 2008 is certainly going beyond the ambit of consequential amendment and if that is allowed then it will cause prejudice and hardship to the other side and when Order 6 Rule 17 of CPC enjoins that the amendment of pleadings can be done by the parties, the procedural wrangle prescribed cannot be allowed to be shaked or shackled with and that in view of that matter, the civil revision petition fails and the same is hereby dismissed in the interest of justice. 11. In the result, the civil revision petition is dismissed and the order passed by the learned Principal Subordinate Judge, Puducherry in I.A.No.724 of 2008 in O.S.No.27 of 2006 in disallowing the portion of paragraphs 5(1) and 6 of the prayer is affirmed by this Court for the reasons assigned in this revision. Liberty is given to the civil revision petitioner/plaintiff to file necessary application in the manner known to law and seek appropriate relief before the trial Court if so advised. It is informed that the pleadings have been completed and issues have already been framed by the trial Court. Hence this Court as a prudent course issues a suitable direction to the trial Court to dispose of the main suit in O.S.No.27 of 2006 within a period of four months from the date of receipt of a copy of this order and the trial Court shall proceed with the conduct of the case uninfluenced with any of the observation made by this Court in this revision. The parties are directed to co-operate with the trial in regard to the completion of proceedings diligently. No costs. Consequently, connected M.P.No.1 of 2008 is also dismissed.