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2011 DIGILAW 2758 (MAD)

Thennarasu v. Jain Parswanatha Nainar

2011-06-13

M.VENUGOPAL

body2011
JUDGMENT :- 1. The Revision Petitioner/Respondent/First Defendant has projected this Civil Revision Petition as against the order dated 01.07.2009 in I.A.No.709 of 2008 in O.S.No.109 of 2004 passed by the Learned Principal District Munsif, Gingee. 2. The trial Court while passing the order in I.A.No.709 of 2008, in O.S.No.109 of 2004, has among other things observed that 'the amendment sought to be made by the First Respondent/Petitioner /Plaintiff is not introducing a new case and further by allowing the said amendment no prejudice will be caused to the other side.' Further, it has also opined that as regards the plea of limitation, the same can be determined finally and resultantly, allowed the application without costs. 3. Being dissatisfied with the allowing of application in I.A.No.709 of 2008, filed by the First Respondent/Petitioner on 01.07.2009, the Revision Petitioner/Respondent/First Defendant has come before this Court. 4. The Revision Petitioner/Respondent/First Defendant urges before this Court that the order passed by the trial Court, dated 01.07.09 in I.A.No.709 of 2008 is against law. Further, the trial Court has exercised its jurisdiction improperly and also not in accordance with law. 5. It is the further contention of the Learned counsel for the Revision Petitioner that the trial Court should have rejected the I.A.No.709 of 2008 praying for amendment of plaint as the said amendment seeks to take away a right of the party acquired by means of limitation and the same cannot be permitted in law. 6. Expatiating his submissions, the Learned counsel for the Petitioner projects an argument that after the amendment of Civil Procedure Code on and from 01.07.2002, the trial Court ought to have seen that post trial amendments cannot be allowed unless reasonable explanation has been put forth by the First Respondent/Petitioner/ Plaintiff for not approaching the Court at the time of trial. 7. According to the Learned counsel for the Petitioner, the cause of action as to change of transmission of time is reported to have occurred on 25.02.2000. But the First Respondent/Petitioner/Plaintiff has sought the relief of amending the plaint, towards cost of change of transmission time, which is clearly barred by limitation. 8. The Learned counsel for the Revision Petitioner submits that for claiming an enhanced damages of Rs.2,00,000/- certainly, there is no evidence available. Moreover, necessary evidence will have to be necessarily recorded by the reopening of the case, which would result in prolonging the proceedings. 9. 8. The Learned counsel for the Revision Petitioner submits that for claiming an enhanced damages of Rs.2,00,000/- certainly, there is no evidence available. Moreover, necessary evidence will have to be necessarily recorded by the reopening of the case, which would result in prolonging the proceedings. 9. In short, the contention of the Learned counsel for the Petitioner is that the trial Court has not taken into account the material facts and surrounding circumstances of the case in a cumulative manner, which has resulted in erroneous order being passed against the Revision Petitioner. 10. Per contra, it is the contention of the Learned counsel for the First Respondent/Petitioner/Plaintiff is that First Respondent/Petitioner/ Plaintiff has only at the time of filing of the Plaint claimed a compensation of Rs.40,000/- from D1 to D7 and later I.A.No.709 of 2008 has been projected by the First Respondent/Petitioner/Plaintiff, claiming a compensation of Rs.2,00,000/- . 11. It is the contention of the Learned counsel for the First Respondent/Petitioner/Plaintiff that by amending the claim for compensation to an extent of Rs.2,00,000/- no new case is introduced by the First Respondent/Petitioner/Plaintiff and the act of trial Court in allowing the amendment, will not cause any prejudice to the Revision Petitioner/First Defendant. 12. Added further, the trial Court, while allowing the I.A.No.709 of 2008, has, in paragraph 8, passed an order mentioning that the plea of limitation can be determined at the final stage of the case. 13. In sum and substance, the plea of the Learned counsel for the First Respondent/Petitioner/Plaintiff is that the trial Court has not committed any material irregularity or patent illegality in allowing the I.A.No.709 of 2008 by its order dated 01.07.2009. Since the main suit in O.S.No.109 of 2004 ,on the file of the trial Court is at the stage of hearing the arguments of the parties, the said order passed by the trial Court need not be disturbed by this Court, at this distance of time. 14. This Court has heard the respective contentions advanced on the side of Revision Petitioner and the 1st Respondent/Plaintiff and noticed the same. 15. It is to be noted that when an individual projects an application for amendment of plaint under Order 6 Rule 17 of Civil Procedure Code, at the time of allowing the application, generally a Court of Law will not delve into the merits and demerits of the case. 15. It is to be noted that when an individual projects an application for amendment of plaint under Order 6 Rule 17 of Civil Procedure Code, at the time of allowing the application, generally a Court of Law will not delve into the merits and demerits of the case. At this Stage, this Court pertinently points out that the main objection taken on behalf of the Revision Petitioner is that the suit has been filed in the year 2000 and the Interlocutory Application No.709 of 2008 has been filed on 15.07.2008 and therefore, the said application has been filed belatedly after lapse of eight years. Also, that when the evidence of both sides have been completed and the case is at the stage of hearing of the arguments, it is not open to the First Respondent/Petitioner/Plaintiff to file I.A.No.709 of 2008. But the delay aspect of filing of I.A.No.709/2008 has not been appreciated by the trial Court, which has resulted in serious miscarriage of justice to the Petitioner/1st Defendant. 16. It is to be borne in mind that a perusal of the plaint filed by the First Respondent/Petitioner/Plaintiff shows that the Plaintiff has claimed only a sum of Rs.40,000/- as damages or compensation from the defendants 1 to 7. As a matter of fact, the First Respondent/ Petitioner/Plaintiff, in I.A.No.709 of 2008, for the first time only has averred that at the time of filing of the suit he has not been in a position to secure money in regard to the claim of Rs.2 lakhs and the payment of requisite Court fee thereto. As such, he has restricted the claim for damages to an extent of Rs.40,000/- and has paid the Court fee to that effect at the time of filing of the plaint. Curiously, the reason that the First Respondent/Petitioner/Plaintiff not being in a position to get/obtain money of Rs.2 lakhs so as to enable him to pay requisite Court fee thereto has not been expressly pleaded in the plaint. However, the same is not fatal. 17. Pointing out this omission, the Learned counsel for the Revision Petitioner/Respondent/First defendant submits that the reason now projected in I.A.No.709 of 2008 by the First Respondent/ Petitioner/Plaintiff is only an afterthought and the same cannot be accepted by this Court. However, the same is not fatal. 17. Pointing out this omission, the Learned counsel for the Revision Petitioner/Respondent/First defendant submits that the reason now projected in I.A.No.709 of 2008 by the First Respondent/ Petitioner/Plaintiff is only an afterthought and the same cannot be accepted by this Court. As already stated that a Court of Law at the time of dealing with an amendment application is not required to deal with the merits and demerits of the matter. It is open to the parties to raise all factual and legal pleas before the trial Court at the time of hearing of the arguments in main suit. 18. At this juncture, this Court aptly recalls the decision of Hon'ble Supreme Court in S.Rm.Ar.S.Sp.Sathappa Chettiar Versus S.Rm.Ar.Rm.Ramanathan Chettiar (AIR 1958 Supreme Court 245), wherein it is held that 'omission to plead valuation for the purposes of Court fee, the plaintiff should be permitted to amend his plaint and set out the valuation.' Amendment in pleadings must be liberally allowed with pragmatic common sense approach. Procedural bottlenecks must not come in the way of dispensation of justice. 19. The dominant object of Order 6 Rule 17 of Civil Procedure Code is to minimise the litigation. Also, the purpose of Order 6 Rule 17 of Civil Procedure Code is that a Court of Law is to decide the merits of the case before it. Consequently, it has to allow the amendment that is necessary for resolving the controversy between the parties. 20. A Court of Law has a wide discretionary power in the matter of amendment of pleadings. But it must be exercised judiciously, of course with great care and caution. Order 6 Rule 17 of Civil Procedure Code, as amended by Act 22/2002 is only prospective. The amendment sought for under Order 6 Rule 17 of Civil Procedure Code should not change the character of suit. If there is no inconsistency between the initial averments in plaint and those proposed in the amendment, then the said amendment ought to be permitted by a Court. 21. A belated amendment which does not cause an irretrievable injury to the other side may be allowed by a Court of law. 22. Generally, a plea of limitation must be the subject matter of issue after allowing the amendment. 23. 21. A belated amendment which does not cause an irretrievable injury to the other side may be allowed by a Court of law. 22. Generally, a plea of limitation must be the subject matter of issue after allowing the amendment. 23. The Learned counsel for the First Respondent/Petitioner/ Plaintiff cites the decision of this Court Rethinam alias Anna Samuthiram Ammal and others Vs. Syed Abdul Rahim (2005(3) CTC 321), wherein it is among other things held that 'Any pleading filed before 01.07.2002, would not be governed by amended act and amendment of pleading is to be decided as per law as it stood prior to 01.07.2002 in respect of such case.' 24. In view of the said decision, this Court holds that the amendment of pleading sought for by a party has to be decided as per law as it existed before 01.07.2002 in respect of such case. Hence, the contra plea taken on behalf of the Revision Petitioner is not accepted by this Court. 25. As far as the present case is concerned, the amendment in plaint is not introducing a fresh case but only substantiating and pressing the plea averred in plaint. 26. Be that as it may, on a careful consideration of respective contentions and on an overall assessment of the facts and circumstances of the case, which float on the surface, this Court comes to an inevitable conclusion that the trial Court exercised its discretion in allowing the amendment application viz., I.A.No.709 of 2008 in O.S.No.109 of 2004. The exercise of the said discretion by the trial Court cannot be said to an arbitrary one. In that view of the matter, the Civil Revision Petition fails. 27. In the result, the Civil Revision petition is dismissed, leaving the parties to bear their own costs. It is made clear that the dismissal of the Civil Revision Petition will not preclude the Respondents to raise all factual and legal pleas before the trial Court at the time of advancing arguments in the main case which is now set for hearing of Arguments on both sides. The trial Court is directed to provide adequate opportunities to both parties to advance arguments in main suit. The trial Court is directed to provide adequate opportunities to both parties to advance arguments in main suit. Though the suit has been filed in the year 2000 as O.S.No.208 of 2000 on the file of Sub Court, Tindivanam (later transferred to District Munsif Court, Gingee and renumbered as O.S.No.109 of 2004), the trial Court is directed to hear the arguments within a period of ten days from the date of receipt of copy of this order and to deliver the Judgement in accordance with law. Consequently, connected Miscellaneous Petitions are closed.