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2008 DIGILAW 4805 (MAD)

Alamelu v. Kunjalam

2008-12-23

S.RAJESWARAN

body2008
Judgment :- The plaintiffs in O.S.No.219 of 2002 are the revision petitioners in all the Civil Revision petitions. 2. The plaintiffs filed O.S.No.219 of 2002 for partition and separate possession of their half share in the suit schedule properties. 3. Written statement has been filed by the respondents/defendants and after contesting the suit on merits, the trail court passed a preliminary decree on 8.4.2004 in so far as the first item of the suit schedule properties is concerned. 4. Thereafter, the revision petitioners/plaintiffs filed I.A.No.153 of 2005 for passing final decree. An advocate Commissioner was appointed in the final decree application who inspected the first item of the suit schedule property and submitted a report. After going through the report of the Advocate Commissioner, it was found by the revision petitioners/plaintiffs that, the first item of the suit schedule properties as shown in the plaint did not give proper particulars with regard to its boundaries. Therefore, the revision petitioners/plaintiffs filed I.A.No.164 of 2006 under Order VI Rule 17 C.P.C. to amend the four boundaries in the first item of the suit properties as shown in the plaint. They also filed I.A.No.165 of 2006 to amend the preliminary decree by correcting the four boundaries as per the report of the advocate-Commissioner. I.A.No.166 of 2006 has been filed by them to make similar amendments in the petitions filed in I.A.No.153 of 2005 filed by them to pass a final decree. All the applications were resisted by the respondents/defendants by filing a counter, wherein it is stated that, the amendments sought for are quite against evidence of the parties and if allowed, it would lead to fresh litigation. 5. After filing I.A.No.164 of 2006 to 166 of 2006, the revision petitioners/plaintiffs filed another three applications in I.A.No.57 to 59 of 2007. These applications have been filed to amend the typographical error in I.A.No.164 to 166 of 2006 wherein they sought for amending the ‘word’ ‘Keelavidhikku Therkku’ and to replace the same with ‘Keelavidhikku Kilakku’. Thus, it is very clear that the revision petitioners/plaintiffs first wanted to amend the boundaries of the first item of the suit schedule property in the plaint, in the preliminary decree and in the petition filed in I.A.No.153 of 2005, to pass a final decree. Thus, it is very clear that the revision petitioners/plaintiffs first wanted to amend the boundaries of the first item of the suit schedule property in the plaint, in the preliminary decree and in the petition filed in I.A.No.153 of 2005, to pass a final decree. Thereafter, after finding that the particulars given in I.A.No.164 to 166 of 2006 are incorrect, they filed I.A.No.57 to 59 of 2007 for further amendment as stated above. These applications were also resisted by the respondents/defendants by filing a counter wherein it is stated that, all these amendments if allowed would lead to inconsistency and therefore, they are also to be dismissed. 6. The court below, by six different orders dated 17.8.2007, dismissed all the six applications and aggrieved by the same, the plaintiffs in the suit have filed the above six revision petitions under Article 227 of the Constitution of India. 7. Heard the learned counsel appearing for the revision petitioners and the learned counsel for the respondents. I have also gone through the documents and judgments filed in support of their submissions. 8. The learned counsel for the revision petitioners submits that what was sought for by the revision petitioners is to amend the boundaries of the first item of the suit schedule property as noted by the advocate Commissioner in his report and these amendments would not in any way alter the nature and character of the suit. In support of his submissions, the learned counsel for the revision petitioners relied on the following decisions: 1. 2006 (5) C.T.C. 580 ( Kaliathal Vs Murugathal and others) 2. 2006 (5) C.T.C. 609 =2007-1-L.W.32 (F.B.) (Hi.Sheet Industries vs Litelon Limited) 3. 2006 (5) C.T.C. 475 =2006-4-L.W.817 (Kodiammal Vs Sarangapani) 4. 2008 (2) C.T.C.224 2008-3-L.W.53 (Puran Ram Vs Bhaguram & another) 9. Per contra, the learned counsel for the respondents contends that no illegality is found in the orders of the trail court as these amendments would definitely change the nature and character of the suit and he further submits that these amendments are not maintainable as courts could not correct or amend the order or decree after the same has become final. In support of his submissions, he relied on the following judgments: 1. 2004 (1) L.W.618 SC (State of Punjab Vs. Darshan Singh) 2. 2006 (1) L.W.797 (Ellan Vs P.L. Chockalingam) 3. In support of his submissions, he relied on the following judgments: 1. 2004 (1) L.W.618 SC (State of Punjab Vs. Darshan Singh) 2. 2006 (1) L.W.797 (Ellan Vs P.L. Chockalingam) 3. 2007 (1) L.W. 819 (P. Poondia Gounder Vs Ramasamy Udayar and four others). 10. I have considered the rival submissions carefully with regard to facts and citations. 11. (1) In 2006 (5) C.T.C. 475 (cited supra), this court held that, when the proposed amendment does not alter the nature and character of the suit to bring in a new cause of action, courts are to be liberal in granting amendment for effective adjudication. (2) In 2006 (5) C.T.C. 580 (cited supra), this court allowed the amendment application on the ground that it would avoid multiplicity of proceedings by filing another suit. (3) In 2006 (5) C.T.C. 609 (cited supra), a Full Bench of this court held as under: “12.00 Result: In the result, the reference is answered holding: (1) that the delay in filing the application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the Court should take notice of the subsequently events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trail of the suit. (2) According to the Proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed. (2) According to the Proviso to sub-section (2) of Section 40 of the Specific Relief Act, the Court has no option to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed. (3) The Proviso to order 6, Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted prior to 1.7.2002 and while considering the proviso to Order 6, Rule 17, the Court has to examine in detail and commencement of trail must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents, addressing of arguments, etc. and the court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party. (4) Before parting with the decisions, we are tempted to cite a paragraph from a case Ma Shwe Mya V Maung Mo Hnuang, AIR 1922 PC 249; “All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit.” Keeping the above principles, the Court Law has to dispense the justice. (5) Therefore, we hold that the impugned order, disallowing the amendment, is liable to be set aside for more than one reason. (6) In view of our aforesaid discussion, we are of the view that the trail court has erred in rejecting the Application for amendment of the plaint. Accordingly, the order of the trail court in I.A.No.589 of 2002 in O.S.No.45 of 1996 is set aside and the application for amendment of plaint is allowed. The plaintiff is directed to proceed to the trail court forthwith and take immediate steps for the necessary amendment as mentioned in the said application and carry out the amendment within a period of one month from the date of this order. The plaintiff is directed to proceed to the trail court forthwith and take immediate steps for the necessary amendment as mentioned in the said application and carry out the amendment within a period of one month from the date of this order. (7) We cannot ignore the facts and circumstances of this case and accordingly, we direct the trail court to dispose of the suit itself within a period of three months from the date of communication of this order to it, as already there is a considerable delay by now. There shall be no order as to costs. Consequently, the connected C.M.P.No.8415 of 2003 is closed.” (4) In 2008 (2) C.T.C. 224 (cited supra), the Hon’ble Supreme Court held that an application filed to amend the plaint as well as the agreement, relating to the description of part of the suit property, is permissible and it is open to the party to claim the relief of ratification of underlying instrument in the suit itself, as the suit shall remain a suit for specific performance even after the amendment. (5) In 2004 (1) L.W. 618 SC (cited supra), the Hon’ble Supreme Court held that, Sec.152 C.P.C. Could not be invoked to modify or alter or add to the terms of original order or decree and Sec.152 could be invoked to correct clerical and arithmetical mistakes in the judgment. The relevant portion reads as under: “12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decree or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed expect by means of review, if statutorily provided specifically therefore and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to cloth the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking in it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying the provisions of Section 151 and 152 of Code even after passing of effective orders in the list pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order, Similar view was expressed by this Court in Dwaraka Das Vs State of Madhya Pradesh and another 1999 (3) SCC 500 and Jayalakshmi Coelho V Oswald Joseph Coelho, 2001 (4) SCC 181 = 2001 (3) L.W. 69.” (6) In 2006 (1) L.W. 797 (cited supra), this court observed that, if the amendment is brought out after the case is closed to introduce the amendments in the description of the property, thereby meeting the evidence, the plaintiff cannot be permitted to do so. The relevant portion reads as under: “15. To put it otherwise, framing of additional issue cannot be the basis for the amendment. On the pleadings and the materials on record, it is seen that the maintainability of the suit without including the vacant land is the point of defence raised by the defendant as the maintainability of the suit. The relevant portion reads as under: “15. To put it otherwise, framing of additional issue cannot be the basis for the amendment. On the pleadings and the materials on record, it is seen that the maintainability of the suit without including the vacant land is the point of defence raised by the defendant as the maintainability of the suit. The amendment filed after the conclusion of the trail ought to have been refused, since it takes away from the defendant a legal right which has accrued to him by lapse of time. If the amendment is brought out after the case is closed to introduce the averments and the description of the property thereby meeting the defence, the Plaintiff cannot be permitted to do so. The applications appear to have been filed to fill up the lacuna/omission. Such an amendment if allowed, would cause serious prejudice to the rights of the defendants, which ought not to be allowed. 16. Amendment cannot be allowed where there is unconscionable delay. The amendment to include the vacant land and also the amendment regarding the value of the suit cannot be allowed, in view of the inordinate delay. Suit is of the year 1996. Amendment application has been filed in the year 2002, nearly six years after the filing the suit. It was not proper on the part of the trail court to permit the plaintiff to amend the pleadings and description of property and the valuation totally introducing a new case. 21. The impugned orders allowing the amendment applications to permit the plaintiff to amend the plaint schedule by inserting the land portion and to amend the valuation of the suit property cannot be sustained. In view of the inordinate delay in filing the applications and keeping in mind the valuable right accrued to the defendant, over the lapse of years, the orders made in amendment applications are to be set aside. In view of the inordinate delay in filing the applications and keeping in mind the valuable right accrued to the defendant, over the lapse of years, the orders made in amendment applications are to be set aside. The application allowing re-opening evidence for further hearing made in I.A.No.16142 of 2002 is to be confirmed.” (7) In 2006 (1) L.W. 819 (cited supra), this Court after noting that by the proposed amendment, the entire description of the property is sought to be changed, found that the defendants are forced to face entirely a new case and therefore, held that the proposed amendment is not a change in the mere description of the property, but changes the entire basis of the case. 12. In the light of the above settled principles of law, let me consider the facts of the present case to find out whether the trail court has correctly dismissed all the six applications. 13. The admitted facts are that, the suit was filed for partition and a preliminary decree was passed in favour of the revision petitioners/plaintiffs in so far as the first item of the suit properties is concerned. Thereafter, the revision petitioners/plaintiffs filed I.A.No.153 of 2005 to pass a final decree on the basis of the preliminary decree dated 8.4.2004. In the final decree application filed in I.A.No.153 of 2005, a Commissioner was appointed by the trail court who submitted a report after inspecting the first item of the suit schedule property. Thereafter, the revision petitioners/plaintiffs filed I.A.No.164 to 166 of 2006 to amend the boundaries of the first item of the suit schedule property in the plaint, in the preliminary decree and also in the petition filed for passing final decree. Three more applications have been filed in I.A.No.57 to 59 of 2007 to amend the petitions filed in I.A.No.164 to 166 of 2006 and to correct the words ‘Keelavidhikku Therke and to replace the same with “Keelavidhikku Kilakke”. The trail court found that the nature and character of the suit itself would change if the amendments are allowed and after referring to the Amendment Act of C.P.C. observed that such kind of amendments after trail could not be allowed. 14. I am agreement with the orders passed by the trail court. It is not in dispute that the preliminary decree was passed as early as on 8.4.2004. 14. I am agreement with the orders passed by the trail court. It is not in dispute that the preliminary decree was passed as early as on 8.4.2004. The proposed amendments in I.A.No.164 to 166 of 2006 were sought for after the advocate Commissioner who was appointed in the final decree application submitted a report. Thereafter, I.A.No.57 to 59 of 2007 were filed to amend the petitioners in I.A.No. 164 to 166 of 2006. This time, the reason given was typographical error. 15. A perusal of the proposed amendments would definitely show that if allowed, they would certainly change the entire description of the first item of the suit schedule properties and therefore, they were correctly disallowed by the trail court. That apart, already a preliminary decree has been passed and only genuine mistakes and clerical errors could be corrected in a decree under Sec.152 as held by the Hon’ble Supreme Court in 2004 (1) L.W. 618 (cited supra) and the schedule itself as found in the preliminary decree could not be amended as sought for by the revision petitioners/plaintiffs. Further, all the decisions relied on by the learned counsel for the revision petitioners, were rendered wherein no decree has been passed by the trail courts and therefore, in those decisions, there was no occasion to decide a case of this nature wherein amendments were sought after the preliminary decree has been passed. 16. Therefore, the decisions relied on by the learned counsel for the revision petitioners are not helpful to the case of the revision petitioners. 17. In the result, I do not find any merits in the above revision petitions and accordingly, they are dismissed. No cost. Connected miscellaneous petitions are also closed.