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2009 DIGILAW 3919 (MAD)

Kasthuri & Another v. Bhaskar & Others

2009-09-30

V.PERIYA KARUPPIAH

body2009
Judgment :- These Revisions have been directed against the orders passed by the Lower Court in C.M.P.Nos.30/2007,32/2007 and 33/2007 in A.S.No.670/2005 dated 11.07.2008. 2. The petitioners herein are the 4th and 5th respondent in the petition filed before the Lower Court and ranked as respondents 5 and 6 in the appeal. The petitioner before the lower court is the 1st respondent herein. The relief against respondents 2 to 4 have come up in these revisions. 3. Lower court had permitted the 1st respondent/appellant/plaintiff to amend the plaint as sought for by him at the appellate stage in all the following three applications. C.M.P.No.30/2007: was filed by the appellant/plaintiff before the lower court seeking to amend the survey number of the suit property as 1451 instead of 1457 wherever it occurs in the plaint. C.M.P.No.32/2007: was filed by the 1st respondent/appellant to amend the schedule in the plaint by giving the four boundaries in addition to the particulars available in the plaint. C.M.P.No.33/2007: was also filed by the 1st respondent/appellant seeking to add the schedule of property as given therein in C.M.P.No.30/2007. 4. Brief facts of the case of the 1st respondent/petitioner/appellant before the lower court are as follows: 4(a). The 1st respondent states that the property described in the schedule originally belonged to Kuppaswami Naicker his grand father. He had two sons Govidasami and Chockalinga. In a partition entered between Govindasami and Chockalinga the suit property was allotted to the share of Chockalinga. The said deed was registered as document No.2174 of 1959 S.R.O. West Madras. The suit property was constructed on the leasehold land belonging to Shri Sundararaja Perumal Koil, with the funds of joint family consisted by Chockalinga and his four sons Govidasami, Venu, Srinivasan and one Krishnan who is the father of the petitioner herein. The said Chockalinga died in the year 1964 and his four sons continued to be the members of a Joint Hindu Undivided family. 4(b) The 1st respondent states that the property was maintained by the family and taxes were paid by them and receipts were taken in the name of Venu, paternal uncle of the 1st respondent as he was living there. After the death of all the four brothers the 1st respondent being the only surviving male issue in the entire family became absolutely entitled to the suit property. After the death of all the four brothers the 1st respondent being the only surviving male issue in the entire family became absolutely entitled to the suit property. Since the 1st respondent became entitled to the suit property as the last male surviving co-parcener, he filed O.S.No.9994 of 1992 on the file of (VII Assistant City Civil Court, Madras) for declaration that he is solely entitled to the suit property and also for possession and for a permanent injunction. In the said suit one Vasantha was arrayed as defendant who is the daughter of Kamala who was attending the house hold duties of Venu. Both are not related to the family and taking advantage of the situation viz. the sickly nature of Venu and the absence of any lady member in the house in the guise of helping Venu were staying in the house. The 1st defendant and her mother were staying in the house and the petitioner allowed them to vacate after sometime in turn they accepted to do so. Even though she was served with summons she engaged a counsel and written statement was not filed even after granting time and she was set exparte and an exparte decree was passed on 17.09.1993 and no appeal nor any petition was filed to set aside exparte decree and the decree has become final. 4(c) In pursuant to the document which they coerced out of my paternal uncle, in turn they executed a mortgage in favour of one Stephen who brought the property to auction sale and the petitioner filed O.S.No.7920 of 1993 which was dismissed by the trial court and an appeal was filed before this court. The suit was dismissed on the basis of Ex.C1 extract from the permanent land register without looking into the boundaries mentioned in the partition deed and the sale deed and the mortgage deed and mentioned that Survey Nos.1451/2 and 1451/2 are available in Alathur Subramania Achari street and S.No.1487 is available at Andiappa Naicken street. The property which has been allotted to paternal grandfather Chokkalinga was bearing Door No.1/21 Alathur Subramania Achari street, and later door number was changed to 29, Alathur Subrmania Achari Street and the property is situated within definite boundaries. The property which has been allotted to paternal grandfather Chokkalinga was bearing Door No.1/21 Alathur Subramania Achari street, and later door number was changed to 29, Alathur Subrmania Achari Street and the property is situated within definite boundaries. However, while writing the survey number mistake crept in the portion that fell to paternal grand father the survey number is mentioned as S.No.1451 and he submits that the property is comprised in one survey number and the said property is divided among brothers and the wrong mentioning of the survey number is now being taken advantage off by the auction purchaser. The Trial court dismissed the suit on the ground that the petitioner has claimed right to a property situated in S.No.1457, where as the property purchased in auction was S.No.1457, where as the property purchased in auction was S.No.1451. The petitioner has given specific boundaries in the partition deed, with specific door number and also street name and earlier suit was also filed and decreed. 5. The contentions of the petitioners/R4&5/R5&6 are briefly stated as follows: One P. DhanaGopal-(deceased) is the bonafide purchaser of the property, the house bearing Door No.29 Alathur Subramania Achari street, comprised in R.S.No.1451/1 Block No.36 from one Stephen in and by a sale deed dated 110. 1993 registered as document No.1679/1993. Petitioners in the revision petitions are the wife and son of the said Dhanagopal. The said property is comprised in R.S.No.1451/1 Block No.36 at Vepery Revenue Division. The said property was mortgaged by a deed dated 16.05.1991, registered as document No.545/91. On the failure of mortgagors, to repay the amounts due under the said mortgage the mortgagee brought the property for sale in exercise of his right under Section 69 of the T.P.Act to realise the amounts in due and hence the petitioner purchased the same. They got the property by a registered settlement deed dated 11.09.1985 registered as document No.1083 of 1985. A reading of the plaint would show that the property purchased by the 4th respondent is comprised in R.S.No.1457 and the measurement of the said property is 216 sq.ft. No boundary description are given to the suit property. On all counts the suit property is entirely a different one from the property purchased by them. In such circumstances the respondent in these Revision petitions is a unnecessary party to the suit. No boundary description are given to the suit property. On all counts the suit property is entirely a different one from the property purchased by them. In such circumstances the respondent in these Revision petitions is a unnecessary party to the suit. The petitioners property is comprised in R.S.No.1451/1 and the respondent property in R.S.1457 is a different one. After impleadment of the petitioners herein they filed a detailed written statement reiterating the facts on October 2003. The lower court uphold the contention that the two properties are different and the respondent has no title to property comprised in R.S.No.1451/1. They further submit that if the amendment sought for is allowed it would cause great prejudice to them. 6. The lower court had clubbed all these three applications and it came to the conclusion that the R1/appellant/plaintiff was entitled to amend the description of the property as sought for by him. Aggrieved by such decision reached by the lower court the revision petitioners have preferred all the three revisions. 7. Heard Mr. N. Jayabalan learned counsel for the revision petitioners and the Mr. A. Seshan learned counsel for the 1st respondent. 8. Learned counsel for the revision petitioners would submit in his argument that the 1st respondent/appellant/plaintiff had filed these applications before the lower court in the appellate stage in order to fill up the laches and lacunae of the plaintiffs case before the lower court and he has not only filed these applications to amend the description of the property, but also introduced a new case on behalf of the plaintiff. He would further submit that the description of the property given in the schedule of property was without any boundaries and he wanted to change the Survey number as 1451 instead of 1457 and that will change the entire identity of the property. He would also submit that the applications were belatedly filed in the appellate stage, despite he was given the details as to the correct survey number is that the S.No.1451 in the objections raised in the written statement filed by the petitioners herein even during October 2003. The learned counsel would insist in his argument that the 1st respondent did not take any steps for amendment of the same in the plaint. The learned counsel would insist in his argument that the 1st respondent did not take any steps for amendment of the same in the plaint. When especially a issue was framed by the lower court as to whether the suit property was different from the property projected by the 4th defendant and if the 1st respondent was permitted to amend the plaint as sought for in the petitions filed for amendment it will change the entire decision of the lower court and also the identity of the property. He would again submit in his argument that the 1st respondent plaintiff was estopped from claiming the suit property under the partition deed. He would further submit that the 1st respondent plaintiff was not entitled to seek for amendment of the plaint at the appellate stage, since he was aware of details and defects in the schedule of properties before the trial court itself. He would rely upon a judgment of Honble Apex court reported in 2008 (5) CTC 253 in between Rajkumar Gurawara (Dead) through Lrs. vs. S.K. Sarwagi & Co. Pvt. Ltd. & Another in support of his case, he would also draw the attention of the court that the proposed amendment was considerably belated and the 1st respondent/plaintiff was also barred under the provisions of Order 6 Rule 17 CPC. He would further submit that the lower court had ordered amendment despite the legal positions are against the 1st respondents case and therefore the orders passed by the lower court are liable to be interfered and set aside. He would therefore request the court to allow all the revisions petitions. 9. The learned counsel for the 1st respondent (plaintiff/appellant before the lower courts) would submit in his argument that the plaintiff had filed all the three applications for amendment of the plaint in order to facilitate the court to identify the suit property correctly and it would not change the suit property and there would not be any difference of cause of action or no variation in the nature of claim or property. He would further submit that in the survey number of the said property was wrongly mentioned as 1457 instead of 1451. But the property was incorrectly described in the property deed entered in the year 1959 in between predecessors of the plaintiff and their co-sharers. He would further submit that in the survey number of the said property was wrongly mentioned as 1457 instead of 1451. But the property was incorrectly described in the property deed entered in the year 1959 in between predecessors of the plaintiff and their co-sharers. The said mistake was evident from the Land Permanent Register produced into the court as EX.C1. He would further submit that there is no change of door number and street name but the proposed amendment is only in survey number and therefore it will not change the identity of the property. He would also submit that the four boundaries were given as per the existing boundaries of the land which is also in accordance with the description in the partition deed of the year 1959. He would further submit that, if really the proposed amendment of survey number and the adding of boundaries would change the identity of the property, then certainly the door number and the name of the street might have been different, but they were not sought to be amended. He would again submit in his argument that since the description is correctly given, it will not change the identity of the property nor would create any new cause of action or the nature of the suit. He would further submit that the revision petitioners have violated a decree passed by the court against them by bringing the property under the colour of mortgage and therefore the revision petitioners are vehemently opposing the amendment, despite it would not change the nature of the suit and cause of action and identity of the property. He would again submit in his argument that the procedural rules of the court are intended to secure proper administration of justice and when the proposed amendment are neither changing the cause of action nor the subject matter of the suit, the amendment is always be liberally ordered. He would cite a judgment of the full bench of this court reported in AIR 2007 Madras 78 in between M/s. Hi-Sheet Industries v. Itelon Limited & Ors. in respect of his case. He would also submit in his argument that the seeking of amendment even though belatedly, but in order to enable the court to adjudicate upon it more substantially should not be refused. in respect of his case. He would also submit in his argument that the seeking of amendment even though belatedly, but in order to enable the court to adjudicate upon it more substantially should not be refused. For that purpose, learned counsel cited a judgment of Honble Apex Court reported in AIR 2007 SC 2577 in between Ramachandra Sakharam Mahajan v. Damodar Ttrimbak Tanksale (D)& Ors. He would also argue that the dispensation of substantial justice requires that the case of the 1st respondent/plaintiff would be attracted by the reasons and the case would be coming under the exemption under the proviso Order 6 Rule 17 CPC. Therefore he would submit that the lower court had exercised the discretion correctly by permitting the amendment in the plaint in order to enable the court to pass a judgment more substantially and lawfully and therefore the findings of the lower court may not be interfered and the revisions may be dismissed. 10. I have given anxious thoughts to the arguments advanced on either side. The lower court had ordered all the three amendment applications filed before it, after finding that it is necessary for the court to come to a correct conclusion. 11. For convenience, the rank of parties before the trial court are being used infra in this judgment. 12. The plaintiff, had filed all the three applications and applied for a correction of survey number and adding the description of four boundaries of the said property in the plaint. Correspondingly, he has sought for the amendments to amend the plaint also. In short, he wanted to amend the description of property in the plaint by correcting the survey number as 1451 instead of 1457 and also to insert the four boundaries of the said property. He has based his claim on the basis of an admitted document which came into existence in the year 1959. Admittedly the applications were not filed before the commencement of the trial. The grievance on the part of the defendants 1 & 2 was that the plaintiff had not opted to amend the plaint immediately after he had filed the written statement before the lower court and therefore he is not entitled to seek for the amendment in the appellate stage which is after the commencement of the trial and passing of the judgment. It is also been contended that a support issue had been framed by the trial court as to the identity of the property and even after the same the amendment was not sought to be introduced. Now it is the court to consider whether the amendment ordered by the lower court was highly belated (i.e) in the appellate stage has to be interfered with. The amendment is certainly in a belated stage and therefore the case of the plaintiff would be attracted by the proviso to Order 6 Rule 17 CPC. For the purpose of appreciating the case, the extraction of Order 6 Rule 17 CPC is necessary: "17. Amendment of pleading.- 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. After careful perusal of the proviso, the court has to decide the question of due diligence that the party could not have raised the matter before the commencement of trial. For the purpose of deciding this point as to the diligence to exercised by the parties even after commencement of the trial, we have to follow the guidelines of our Apex Court. According to judgment rendered by the Honble Apex Court reported in AIR 2007 SC 2577 in between Ramachandra Sakharam Mahajan v. Damodar Trimbak Tanksale (D)& Ors. It has been categorically mentioned as follows: "14. We find that the trial court and the appellate court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial court within three months from this date as per the practice followed in the trial court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment." 14. This would enable the court to order amendment even though it is a highly belated staged when real question has to be decided pin pointedly by the court. 15. It has also been relied upon by the Defendants 1 & 2 the judgment of Honble Apex court reported in 2008 (5) CTC 253 in between Rajkumar Gurawara (Dead) through LRS. vs. S.K. Sarwagi & Co. Pvt. Ltd. & Another. It would run thus: "5.... The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to Proviso appended therein. The said Rule with Proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order Vi, Rule 17, C.P.C confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the Proviso." In this judgment also, it has been reiterated that the amendment can be allowed if the parties are able to satisfy the court that inspite of due diligence they could not raise the issue before the commencement of trial. It has also been mentioned clearly that such amendments sought for by the parties should determine the real question which was in controversy between the parties. Therefore, we have to see as to whether the proposed amendment would facilitate the court to give the correct conclusion with the satisfaction of giving proper justice to the parties. 16. It has been categorically laid down by the full bench of this court reported in AIR 2007 Madras 78 in between M/s. Hi-Sheet Industries v. Litelon Limited & Ors. as follows: "26. Order 6, Rule 17 of the code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, that in spite of due diligence, the party could not have raised the matter before the commencement of trial. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision." (iii) Thus, a judicial discretion is to be exercised by Court in this regard and when the facts and circumstances are in favour of amendment, it should not be rejected." It has been categorically held by the judgments mentioned above, this court can understand that the rules issues have been made for the purpose of curbing the frivolous application filed for the purpose of delaying the trial. 17. In the light of the guidance of these judgments, when we consider the present case, it is to be determined as to whether the amendments sought for by the plaintiff are necessary for settling the real dispute in between the parties, and the delay in preferring the amendment would defeat the case of the defendants 1 and 2 and any prejudice would be caused due to the proposed amendment. As per the description of property already present in the plaint we could see that the land was shown located in S.No.1457. The house put up in the suit property was assigned with Door No.29, Alathur Subramania Achari Street. The Permanent Land Register was produced as EX.C1, would disclose that the property in S.No.1457 is located only in Andiappa Naicken street and not in Subramanya Achari street. The relevant S.Nos located in Subramania Achari street are stated to be S.No.1451/1 and 1451/2. Therefore, by merely correcting the Survey number as 1451 instead of 1457 it will not change the identity of the property in the plaint. 18. The attempt to introduce the boundaries was also made in yet another amendment application. The relevant S.Nos located in Subramania Achari street are stated to be S.No.1451/1 and 1451/2. Therefore, by merely correcting the Survey number as 1451 instead of 1457 it will not change the identity of the property in the plaint. 18. The attempt to introduce the boundaries was also made in yet another amendment application. When the Door No.29, Alathur Subramanya Achari street is mentioned with a correct R.S.No.1451, the provisions of boundaries ordered through the proposed amendment would further confirm the identity of the property and it would not change the identity of the property. The four boundaries will not change the property in Door No.29, Alathur Subramaniya street into some other properties located in some other place. On the other hand, it would not confirm the identity of the property as already mentioned in the plaint schedule. When we go through all these points, we have to refer to the settled principles of Honble Apex court as to the prevalence of boundaries over survey numbers and measurements. Identity of the property in Door No.29, has been described now with the four boundaries and therefore any dispute in respect of the identity of the property will not arise in between the parties. The dictum of Honble Apex Court that boundaries would prevail over measurement would also be helpful for this court to decide this issue in a meaningful way. The judgment of Honble Apex Court reported in (2006) 5 SCC 466 in between Subhaga & Ors v. Shobha & Ors. would be as follows: "6...... That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail. There was no occasion to spin a theory that it was necessary in this suit to survey all the adjacent lands to find out whether an encroachment was made in the land belonging to the plaintiff." Therefore adding of boundaries will certainly settle the issue in between parties, as to the identity of the property. 19. The amendments as ordered by the lower court would be for the purpose of minimising the litigation, despite they were filed belatedly and with laches in moving such amendment applications. 19. The amendments as ordered by the lower court would be for the purpose of minimising the litigation, despite they were filed belatedly and with laches in moving such amendment applications. The proposed amendment sought for by the plaintiff will not in anyway change the identity of the property and there cannot be any fresh cause of action, since the property would be described any change of the subject matter of the property. Therefore, no fresh cause of action would arise by the amendment ordered by the lower court. Per contra would certainly enable the lower appellate court to decide the case more substantially by rendering a fair judgment in respect of the property actually in dispute in between the parties. Therefore the delay caused in taking steps to amend the plaint can be dispensed with for the purpose of rendering substantial justice to both parties. Moreover, there cannot be any prejudice caused to the defendants due to the allowing of amendments. By virtue of filing the amendment applications, we cannot see any dilatory tactics on the part of plaintiff to prolong the proceedings. The only fault found is that steps were taken by the plaintiff only before the appellate forum. The findings of lower court would be absolutely upheld if it had ordered the amendment in terms of costs for the inconvenience caused to Defendants 1 & 2. But the lower court did not pass any order as to costs, which alone is not in compliance of the proviso of Order 6 Rule 17 C.P.C. Therefore it is necessary for this court to pass a conditional order for allowing the amendments ordered in C.M.P.Nos.30,32&33/2007 before the lower court. Accordingly all the three applications will be allowed on payment of cost of Rs.1500/- in total by the 1st respondent to the revision petitioners within a period of two weeks from the date of receipt of a copy of this order. On such payment, these applications filed before the lower court in C.M.P.Nos.30,32&33/2007 in A.S.No.670 of 2005 will be allowed and in default those applications shall stand dismissed and these revision petitions shall be deemed to have been allowed. 20. With the aforesaid condition, the revision petitions are ordered accordingly. Connected miscellaneous petition is closed. No costs.