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2009 DIGILAW 138 (MAD)

C. v. Rambabu VS V. C. Jayanthi

2009-01-12

N.PAUL VASANTHAKUMAR

body2009
ORDER This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the Order dated 20.10.2006 made in I.A. No. 131 of 2006 in O.S. No. 632 of 2001 on the file of the Additional District Mun^if Court, Madurai Town. 2. The petitioner, who is a plaintiff in O.S. No. 632 of 2001 on the file of the Additional District Munsif Court, Madurai Town, has filed the above suit seeking permanent injunction restraining the respondent/defendant from interfering with his peaceful possession, in the said suit, the respondent herein filed a Written Statement by stating that the suit filed without seeking to set aside the Sale Deed dated 5.11.1990 is not maintainable. In order to meet the technical objection, the petitioner filed an application in I.A. No. 131 of 2006 for amending the plaint to include the prayer for declaration that the Sale Deed dated 5.11.1990 is not binding on the plaintiff, as the same was sham and nominal. 3. The respondent filed a counter affidavit and opposed the amendment application. The said amendment application was dismissed by the learned Additional District Munsif, Madurai town by holding that the amendment application was filed after lapse of five years of the filing of the suit and no explanation was offered for filing the amendment application after lapse of five years of the filing of the suit. It is also held in the order that the Sale Deed, which is sought to be set aside, was executed 16 years prior to the filing of the amendment application and the period of limitation to set aside the execution of sale deed is also over. 4. The said order is challenged in this civil revision petition by contending that the limitation to file a suit is a mixed question of fact and law and the said issue cannot be decided at the interlocutory stage. It is also contended that the amendment application filed by the petitioner was not for setting aside the Sale Deed and for a declaration that it is non-est in the eye of law and the Judgment relied on by the Court below in the decision in 2005 (4) LW 244 : (2005) 4 MLJ 269 is not applicable to the facts of the present case. 5. 5. The learned counsel for the petitioner submitted that the Sale Deed dated 5.11.1990 itself was cancelled in the year 2000 and as per the Judgment of a Full Bench of this Court in the decision in 2006 (5) CTC 609 : (2007) 1 MLJ 320 , the Sale Deed having been executed at Parasala in Trivendram District, Kerala State, is not valid. The learned counsel for the petitioner further submitted that while ordering amendment, the question of limitation, if any, can also be left open to be decided in the main suit or else the amendment application can be ordered from the date of filing of the amendment application. 6. The learned counsel for the respondent, on the other hand, submitted that even though the Sale Deed was registered in the year 1990 before the Sub Registrar, Parasala, the difference in stamp value was already paid and the said sale deed gets validated. Since the said sale deed is valid for all purposes, the Court below rightly dismissed I.A. No. 131 of 2006 seeking amendment of the plaint. 7. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent. 8. In the suit, the petitioner has prayed for permanent injunction restraining the defendant, her family members, her men, agents or any person having got title any through her from in any way dispossessing or interfering with the peaceful possession and enjoyment of the suit property by the plaintiff and for permanent injunction restraining the defendant from encumbering the suit property by way of sale, mortgage, othi and other modes. 9. The said suit was filed in the year 2001. In the written statement filed by the defendant, it is stated that the plaintiff executed a registered sale deed in favour of the defendant on 5.11.1990 after receiving the entire consideration and from the said date, the defendant became the owner of the property and as such, there cannot be any injunction against the real owner. It is also contended in the Written statement that the additional stamp duty as per the Tamil Nadu Stamp Act was paid and the document was validated and property tax receipt assessment was also transferred in the name of the defendant, and therefore, the defendant is the absolute owner of the property. It is also contended in the Written statement that the additional stamp duty as per the Tamil Nadu Stamp Act was paid and the document was validated and property tax receipt assessment was also transferred in the name of the defendant, and therefore, the defendant is the absolute owner of the property. It is also stated in the Written Statement that the cancellation of sale deed executed in the year 2000 is not valid. 10. On the above pleadings, the petitioner filed the above said amendment application under Order 6 Rule 17 and Section 151 CPC. 11. The point for consideration is as to whether the amendment is altering the nature of the case and whether prejudice would be caused to the defendant or not. The said suit was filed for permanent injunction not to dispossess or interfere with peaceful possession and enjoyment of the suit property situated in Door No. D-2306, Madurai Town Survey Ward No. 3, Resurvey No. 57, South Perumal Masthri Street. It is the case of the respondent that the said property was sold to the respondent by the petitioner by a sale deed dated 5.11.1990 and she was put in possession of the land on payment of consideration at the time of sale. 12. The case of the plaintiff/petitioner is that the sale deed was sham and nominal which was also cancelled on 20.4.2000 by a cancellation deed. Whether the sale deed can be set aside by a deed of cancellation and whether the sale deed executed on 5.11.1990 is of sham and nominal or a valid sale deed can be gone into while deciding the suit. By filing amendment petition, the petitioner has prayed for declaration to declare that the sale deed 5.11.1990 as sham and nominal executed without passing any consideration. The said amendment is not making a fresh case and it is a consequence of the original prayer in the suit. It is an incidental or ancillary to the original prayer made in the suit i.e., seeking permanent injunction restraining the defendant, her family members, her men, agents or any person from in any way dispossessing or interfering with peaceful possession and enjoyment of the suit property. By considering the said prayer for amendment, the nature of the suit is not altered and no prejudice would be caused to the defendant. By considering the said prayer for amendment, the nature of the suit is not altered and no prejudice would be caused to the defendant. In fact, by permitting the said amendment, multiplicity of proceedings will be avoided. Order 6 Rule 17 CPC is relevant for this purpose which reads as follows:- "17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties : Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 13. As per Order 6 Rule 17 CPC, for determining the real question in controversy, amendment can be ordered at any stage of the suit. The right of the defendant can also be protected by stating that the limitation, if any, can be pleaded by the respondent on the basis of the date of filing of the amendment petition. The Hon'ble Supreme Court in the decision in 2002 (4) CTC 189, while considering the provision contained in Order 6 Rule 17 CPC, held that the amendment of pleadings should be liberally construed so as to avoid multiplicity of proceedings and pleadings can be amended at any stage of proceedings for determination of real question in controversy. It is also held that the question of prejudice caused to the opposite party can also be considered and the interest of the party can be protected by giving appropriate direction to preserve the right accrued prior to the filing of the application for amendment, in the said Judgment, an earlier decision of the Supreme Court in the decision in AIR 1960 SC 335 , was; followed, wherein it is held "it is a well settled rule or practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he seeks to do so". 14. 14. In the decision in AIR 2001 SC 2896 : 2001 (8) SCC 561 , the Hon'ble Supreme Court has held that "it is competent while permitting an amendment to direct that the amendment permitted by its shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on the date on which the application seeking amendment was filed". 15. A Full Bench of this Court in the decision in Hi.Sheet Industries v. Litelon Limited (supra), has also considered elaborately the power of the Court in ordering amendment under Order 6 Rule 17 CPC. In the said Judgment, it is clearly held that ordering amendment of pleadings depends on facts and circumstances of each case. In the decision in AIR 2006 SC 1647 : 2006 (4) SCC 385 : (2006) 3 MLJ 70, the Hon'ble Supreme Court has observed that the Court should allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side and the Court should take notice of the subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. In the said Judgment, in paragraphs 15 to 19, it is held as follows at p. 75 of MLJ: "16. The object of the rule is that the Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order 6 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. 19. 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. 19. As discussed above, the real controversy test is the basic or 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; if it is not, the amendment will be refused the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of , amendment is essentially a rule of justice, equity and good conscience and 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 to be adjudged at the stage of allowing the prayer for amendment." In the decision in AIR 2006 SC 2832 : 2006 (6) SCC 498 : (2007) 7 MLJ 838, in Paragraph 9, the Hon'ble Supreme Court has held as follows at p. 841 of MLJ: "(9) ...... From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of civil Procedure consists of two parts. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. The first part is that the Court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 CPC, it cannot be doubted that wide power and unfettered discretion has been conferred on the Court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the Court just and proper. While dealing with the prayer for amendment/ it would also be necessary to keep in mind that the Court shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously." In the decision in 2004 (4) CTC 231, in Paragraphs 12 to 16, the Hon'ble Supreme Court has held as follows:- 12. So far as the Court's jurisdiction to allow an amendment of pleadings is concerned, there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation,' therefore, if the facts of the case so permit, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application.(underlining is ours) 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amendments? 14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case. 15. This Court in the case of AIR 1957 SC 357 , has held: "It is no doubt true that Courts would, as a ruie, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order if it that is required in the interest of justice." 16. This view of this Court has, since been followed by a 3 Judge Bench of this Court in the case of 2004 (3) SCC 392 . Therefore, an application for amendment of the pleading should not be disallowed merely because it is opposed on the ground that the same is barred by limitation, on the contrary, application will have to be considered bearing in mind the discretion that is vested with the Court in allowing or disallowing such amendment in the interest of justice." 16. From the above referred to Judgments of the Supreme Court and of this Court and having regard to the fact that the power is conferred to the Court under Order 6 Rule 17 CPC to allow amendments which are necessary for the purpose of determining the real question in controversy between the parties, the Court below ought to have allowed I.A. No. 131 of 2006 seeking amendment of the plaint. Further, no prejudice is caused to the defendant by ordering amendment. Failure to amend the plaint has caused miscarriage of justice. Further, no prejudice is caused to the defendant by ordering amendment. Failure to amend the plaint has caused miscarriage of justice. Hence, the order passed in I.A. No. 131 of 2006 in O.S. No. 632 of 2001, on the file of the Additional District Munsif Court, Madurai Town, is set aside by preserving the right of the defendant to claim limitation, if any, to plead on her behalf against the petitioner/plaintiff and the same shall be calculated only from the date of filing of the amendment and not from the date of filing of the suit. As the Suit is of the year 2001, the learned Additional District Munsif, Madurai Town is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this Order. 17. The civil revision petition is allowed on the above terms. Consequently, connected H.P is closed. No costs. Petition allowed.