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2010 DIGILAW 5301 (MAD)

Rajamani Vancheeswaran v. Muthukumaran

2010-12-02

S.PALANIVELU

body2010
Judgment :- 1. The petitioner is 1st defendant in O.S.No.521 of 2001 on the file of the District Munsif Court, Alandur. It is a suit for permanent injunction filed by the plaintiff. After the trial was commenced, the respondent/plaintiff filed an application under Order 6 Rule 17 and Section 151 C.P.C for amending the plaint for inclusion of declaratory relief. In the affidavit he has alleged that the respondent/defendants have filed O.S.No.269 of 1999 against him for permanent injunction before the same Court and the said suit was decreed on 27.11.2008 in their favour. Hence, the plaintiff is coming forward to amend the prayer suitably by praying for a declaration that he is the owner of the suit property. The respondents are challenging the petitioners title. There are documents produced to show their rights. Hence, the declaratory relief may be permitted to be included in the plaint for proper adjudication of the suit. 2. In the counter filed by the defendants, it is stated that the Court has accepted the case of respondents. When once the title or possession considered by the Court, the question of asking for additional relief of declaration that the plaintiff is the owner of the suit property, has got no meaning and the petitioner has filed the petition only to delay the process. The market value has to be assessed on the date of filing of the petition and the same has not been done. There is no proper cause of action in the above suit for the relief of declaration now sought for in the petition and hence, the petition may be dismissed. 3. The learned District Munsif, has allowed the application by observing that even if the amendment application is considered to be barred by limitation, at the time of filing of application, it need not be gone into and the same could be discussed at the final hearing of the case, that even though the petition has been filed after the commencement of the trial it has to be allowed, that the value of the properties have been properly furnished and hence, the petition has to be allowed. This is the order under challenge before this Court. 4. This is the order under challenge before this Court. 4. The learned counsel for the petitioner Mr.M. Aravind Subramanian would submit that inasmuch as the suit filed by the petitioner in O.S.No.269 of 1999 long back and afterwards the present suit has been filed in O.S.No.521 of 2001 and this petitioner filed written statement as early as 2001, the claim of the petitioner was known to the respondent even in 2001 and only in 2006 he filed an application to implead this petitioner in his suit and even after a long time, at the fag end of 2009, he filed amendment application and that O.S.No.269 of 1999 was decreed in favour of this petitioner against which the respondent preferred appeal in A.S.No.2 of 2009 on the file of the Sub-Court Tambaram which suffered dismissal on 27.07.2010 and there is no scope for entertaining the amendment petition presently. It is his further contention that the relief claimed in the proposed amendment has been hopelessly barred by time and the court below has failed to take note of it. 5. Contending on the other side of the coin, the learned counsel for the respondents would submit that as per the settled law, at the time of allowing of the amendment applications, the Court need not decide the point of limitation and the same has to be appreciated at the final hearing of the case, that the cause of action for filing the amendment application flows from the judgment in O.S.No.269 of 1999, that even after the disposal of the appeal, the claim of these respondents survives, that the respondents are taking arrangements to prefer second appeal before this Court and that there is no need to interfere with the order challenged before this Court. 6. The petitioner filed suit in O.S.No.269 of 1999 and the first respondent filed suit in O.S.No.521 of 2009, both for permanent injunction. Earlier, the petitioner filed suit against 3rd parties and afterwards on 2001, being the defendant he filed his written statement in 2001 itself. However, the first respondent impleaded him in his suit in 2006. The arguments that the first respondent had very well known about the claim of this petitioner even in 2001 is acceptable. Since the present suit has been filed in 2001, the provisions of amended C.P.C are not applicable. However, the first respondent impleaded him in his suit in 2006. The arguments that the first respondent had very well known about the claim of this petitioner even in 2001 is acceptable. Since the present suit has been filed in 2001, the provisions of amended C.P.C are not applicable. Hence, even if the amendment application were filed after the commencement of the trial, the Court has to follow the settled position as to the considerations for allowing such applications filed in the suits which were filed anterior to the amending the Act 2002 in C.P.C. 7. The learned counsel for the petitioner very much relies upon a decision of the Supreme Court in 2009 AIR SCW 6644 = (2009) 10 SCC 84 [Revajeetu Builders and Developers v. Narayanasway and Sons and Others] wherein after the elaborate discussion on the subject referring to various decisions, Their Lordships formulated principles for consideration while dealing with the amendment applications. They are as under: "FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS: 63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive." 8. The Supreme Court has also rendered a judgment earlier to the above said judgment in 2008 SCCL.COM 1051[Rajkumar Gurawara (Dead) Thr.LRs v. M/s. S.K.Sarwagi & Co.Pvt.Ltd. & Another] 9. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive." 8. The Supreme Court has also rendered a judgment earlier to the above said judgment in 2008 SCCL.COM 1051[Rajkumar Gurawara (Dead) Thr.LRs v. M/s. S.K.Sarwagi & Co.Pvt.Ltd. & Another] 9. The learned counsel for the respondents vehemently contends that the point of limitation has no role to play presently at the time of allowing the amendment applications and the point of limitation has to be appreciated at the final hearing of the case. In support of his contention he placed reliance upon the decisions of the Supreme Court, which are as follows:- 1) AIR 2001 SC 699 [Raghu Thilak D. John v. S. Royappan and others] 2) 2004(4) CTC 231 [Pankaja and another v. Yellappa (D) Lrs. & others] 10. In Pangajas case (supra) Their Lordships have referred and followed earlier Supreme Court decision in Ragu Thilak D. Johns case in which it is held as follows: "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." 11. He also garnered support from a decision of the Apex Court in 2009(1) SCC 623 [Surender Kumar Sharma v. Makhan Singh] in which it is observed as under:- "5. As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amendment." 12. Following the above said judgments it has to be held that whether the reliefs sought for in the amendment application is barred by limitation need not be gone into at the time of dealing with the amendment applications. However, whether the amendment applications would serve any purpose at present has to be looked into. It is a case that the first respondent has no knowledge about the claim of the petitioner for a long time. Both the parties have failed to bring it to the notice of the trial Court that the above said two suits are connected with each other and they should have been tried jointly. It is stated that the second appeal is yet to be filed from the appellate Court judgment. In this context it is to be noted that in the particulars in the amendment application, the amendment to be made in the cause of action column in the plaint has not been mentioned. 13. The claim of the first respondent has been negatived by the appellate court. The cause of action for filing amendment application is from the disposal of the suit in O.S.No.269 of 1999. Now it has gone against the first respondent. So the present amendment will not stand in this context. If the second appeal is filed, the first respondent may prefer further steps for filing amendment application as per the result rendered in the Civil Appeal. 14. For the above said reasons, the amendment petition cannot be entertained which has to be dismissed. So the order challenged before this Court is liable to be set aside and it is accordingly set aside. 15. In fine, the Civil Revision Petition is allowed. 14. For the above said reasons, the amendment petition cannot be entertained which has to be dismissed. So the order challenged before this Court is liable to be set aside and it is accordingly set aside. 15. In fine, the Civil Revision Petition is allowed. I.A.No.195 of 2009 on the file of the trial Court is dismissed. No costs. Connected M.P.is closed.