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2009 DIGILAW 655 (MAD)

Lakshmi v. Perumal & Another

2009-03-02

G.RAJASURIA

body2009
Judgment Inveighing and impugning the order dated 010. 2008 passed by the learned District Munsif, Dharmapuri in I.A.No.662 of 2008 in O.S.No.233 of 2005, this civil revision petition is focussed. 2. A summation and summarization of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run thus: The revision petitioner/plaintiff filed the suit O.S.No.233 of 2005 seeking the following reliefs: Tamil The defendants entered appearance and filed their written statement. The matter was posted for trial. When the trial commenced on plaintiffs side, I.A.No.662 of 2008 was filed by the plaintiff under Order 6 Rule 17 of the Code of Civil Procedure for getting amended the plaint in respect of the prayer column as well as certain description of properties. After hearing both the sides, the lower Court dismissed the I.A. Being disconcerted by and dissatisfied with the order of the lower Court, this revision has been focussed on various grounds, inter alia thus: The lower Court simply took the view that as per Order 6 Rule 17 of the Code of Civil Procedure, after the commencement of trial, there should not be any amendment and that there was no good reason for allowing the amendment; the lower Court also failed to note that the averments in the affidavit accompanying the said I.A that the entire C schedule property belongs to the plaintiff in view of the fact that already there was a gift deed dated 21.04.2003 executed by D1 donating half of the C scheduled property in favour of the plaintiff and the remaining half share belongs to the plaintiff as the sharer. Accordingly, she prayed for setting aside the order of the lower court and for allowing the I.A. 3. Despite printing the names concerned, none appeared. 4. A bare poring over and perusal of the relevant records would demonstrate and display, portray and project that the suit is for declaration of title and for partition. The plaintiff in prayer No.4 sought for partition of the "C" Schedule of the properties. Even chief examination affidavit of the plaintiff was filed and much of a muchness could be seen between the two. The plaintiff in prayer No.4 sought for partition of the "C" Schedule of the properties. Even chief examination affidavit of the plaintiff was filed and much of a muchness could be seen between the two. However, thereafter, the plaintiff in the affidavit accompanying the I.A.No.662 of 2008 spelt out that earlier D1 himself relating to his half share in the "C" schedule property executed the gift deed dated 21.04.2003 in favour of the plaintiff and the remaining half share belongs to the plaintiff as sharer and accordingly, she would pray for amending the said prayer suitably. However, the lower Court looked askance at such a prayer and simply dismissed it on the sole ground that as per the amended Order 6 Rule 17 of the Code of Civil Procedure without valid reasons, amendment cannot be ordered after commencement of trial and that no valid reason has also been set forth and put forth in the affidavit of the plaintiff/petitioner as to why even earlier to the commencement of the trial such amendment was not sought for. At this juncture my mind is reminiscent and redolent of the decision of the Honble Apex Court reported in 2008(4) TLNJ 588(CIVIL)-VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER. Certain excerpts from it would run thus: "7. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under: "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." It is couched in a mandatory form. The courts jurisdiction to allow such an application is taken away unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 8. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to commencement of proceeding. 9. Although in a different context, a Three-Judge Bench of this Court in Union of India and others v. Major General Madal Lal Yadav (Retd) ([1996] 4 SCC 127) took note of the dictionary meaning of the terms trial and commence to opine: 19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial. The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced. 10. Order XVIII, Rule 4(1) of the Code reads as under: "4.Recording of evidence (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who claim for evidence: Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court." 11. This aspect of the matter has been considered by this Court in Ameer Trading Corpn.Ltd.v. Shapoorji Data Processing Ltd.([2004] 1 SCC 702) in the following terms: "15.The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Rule 4 Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which "evidence" is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit. 16. The aforementioned provision has been made to curtail the time taken by the Court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the Court or the Commissioner appointed by it." In Kailash v. Nanhku ([2005] 4 SCC 480), this Court held: "13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word trial in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word trial. We may notice that in Ajendraprasadji N.Pandey and Another v. Swami Keshavprakeshdasji N. And Others ([2006] 12 SCC 1), this Court noticed the decision of this Court in Kailash (supra) to hold: 35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose. 36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.7. 2002. It had a provision permitting amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the Court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration." 5. It is this proviso which falls for consideration." 5. No doubt, a plain reading of the said precedent would highlight and spotlight that as per the amended Order 6 Rule 17 of the Code of Civil Procedure, the Court should not allow amendments of the plaint in a casual manner and there should be valid reasons. Here, in the affidavit accompanying the I.A, as set out supra, the petitioner has clearly spelt out certain reasons that by virtue of the gift deed dated 21.04.2003 she became the owner of the half share in the "C" scheduled property and that she is the owner of the remaining half share by virtue of the fact that she is the co-sharer. In these pleas of the plaintiff, mixed question of law and fact is involved and only during trial finally, the contention of the plaintiff could be adjudged. However, in view of the ex-facie and prima facie, contentious pleas put forth by the plaintiff, the lower court could have very well allowed the I.A. But, it simply felt as though no valid reasons has been set out for allowing the I.A. The lower Court observed that reasons have also not been stated for getting corrected the description of property. However, in the proposed amendment itself in the paras to be added in the plaint, the petitioner portrayed and parodied that some mistakes crept in while describing the property in the schedules to the plaint. The plaintiff being the dominus litis should be given ample opportunity to make suitable amendments and it is for her to prove her case, ultimately to achieve and attain success in the litigative process. 6. While allowing such applications, the prejudice that would be caused to the defendant also should be seen. But, in this case, I could see that no prejudice would be caused to the defendants, if the application is allowed. Hence, for the purpose of avoiding multiplicity of proceedings and to decide the lis comprehensively, I would like to allow the I.A.No.662 of 2008. 7. But, in this case, I could see that no prejudice would be caused to the defendants, if the application is allowed. Hence, for the purpose of avoiding multiplicity of proceedings and to decide the lis comprehensively, I would like to allow the I.A.No.662 of 2008. 7. In view of the fact that there is a delay on the part of the plaintiff in filing the I.A, I direct that the revision petitioner shall pay a cost of Rs.500/-(Rupees five hundred only) to the respondents within a period of 15 days from the date of receipt of a copy of this order as otherwise, the benefit of this order will not enure to the benefit of the petitioner. 8. In the result, the order of the lower Court in I.A.No.662 of 2008 is set aside and the revision is allowed. Consequently, the I.A is allowed. I make it clear that due opportunity shall be given to the defendants to file additional written statement. Connected miscellaneous petition is closed.