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2011 DIGILAW 3500 (MAD)

Kandhasamy v. Viruthambai

2011-08-01

K.VENKATARAMAN

body2011
JUDGMENT :- The present revision is laid challenging the order in allowing the application for amendment preferred by the respondents 1 to 5 herein. 2 The first defendant in the said suit is the petitioner herein and the plaintiffs therein are the respondents 1 to 5 herein and the respondents 6 to 10 herein are the defendants 2 to 6 in the suit. 3 In a suit filed by the respondents 1 to 5 against the petitioner and others for partition and separate possession of the property, the respondents herein have filed an application for an amendment under Order 6 Rule 17 C.P.C. By way of such amendment, a property is sought to be included in the plaint schedule. The reason that has been given in the affidavit filed in support of the application was that by mistake, one of the properties left over and hence the same should be included in the schedule of the plaint. The Court below has allowed the said application for amendment and as stated already, the present revision is directed against the said order. 4 Mr.S.Periyasamy, the learned counsel for the petitioner strenuously contended that the application for amendment ought not to have been allowed especially after amendment of C.P.C. in the year 2002, wherein an application for amendment could not be considered after the trial has commenced unless there is an averment that inspite of due diligence, the facts which have to be stated by way of amendment was not within the knowledge of the concerned person who has filed the said application. He also relied on the decision reported in (2006)12 SCC 1 (Ajendraprasadji N.Pandey Vs Swami Keshavprakeshdash N. and others) and contended that the Hon'ble Apex Court has held that amendment cannot be automatically allowed after introduction of proviso under Order 6 Rule 17 C.P.C. in the year 2002 amendment. 5 I have carefully considered the submissions made by the learned counsel fore the petitioner and the learned counsel for the respondents. 6 The above extracted facts would disclose that the respondents have laid the said suit against the petitioner and others for partition and separate possession of the suit properties. After the trial has commenced, the respondents 1 to 5 herein have taken out an application for amendment of the pleadings as per Order 6 Rule 17 C.P.C. to incorporate one of the properties. After the trial has commenced, the respondents 1 to 5 herein have taken out an application for amendment of the pleadings as per Order 6 Rule 17 C.P.C. to incorporate one of the properties. It is stated in the affidavit that when instructing the counsel, a property has been left over and hence it has necessitated the respondents herein to take out an application under Order 6 Rule 17 C.P.C. to incorporate the said property in the plaint schedule. 7 No doubt, after amendment of Order 6 Rule 17 C.P.C. in the year 2002, there should be averment that inspite of due diligence the party could not have raise the matter before the commencement of trial. It would be useful to extract Order 6 Rule 17 C.P.C. "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 question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has 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 trial." 8 In the given case on hand as stated already, the respondents herein want to include only one more property and nothing more. It was further stated in the affidavit filed in support of the application that when instructing the counsel one of the properties has been left over. In such circumstances, I am of the considered view that the respondents herein shall be allowed to prosecute the matter by permitting them to incorporate one more property in the suit. 9 The judgment cited by the learned counsel for the petitioner which was referred to earlier is concerned, on facts found therein the Hon'ble Apex Court came to the conclusion in the said case that the appellants therein were within their knowledge of certain facts which they have not made it earlier and that they made the same by way of an application for amendment after the trial has commenced. The end of the paragraph 43 of the said judgment is thus usefully extracted hereunder: "43. The end of the paragraph 43 of the said judgment is thus usefully extracted hereunder: "43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order 6 Rule 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants dis-entitling them to relief. Again in para 15, the Hon'ble Apex Court has held that the amendment that has been sought for therein seeks to introduce totally a new and inconsistent case. Para 54 is extracted hereunder: '54. In our opinion, the facts above mentioned would also go to show that the appellants are lacking in bona fides in filing this special leave petition before this Court. It is also to be noticed that the High Court has recorded relevant points in its elaborate judgment dated 5-10-2005 and have been dealt with despite the opposition of the contesting respondents that these pleas were not taken in the written statement. Under these circumstances, non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has disentitled the appellants to any relief. Under these circumstances, non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has disentitled the appellants to any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case." 10 In view of the above reasoning which could be culled out from the said judgment, I am of the considered view that the Hon'ble Apex Court has rejected the claim of amendment sought for by the appellants therein. The facts stated therein may not be applicable to the facts on hand. 11 In 2006(4) SCC 385 (Rajesh Kumar Aggarwal and others Vs K.K.Modi and others) the Hon'ble Apex Court has held that if amendment sought for was necessary for the purpose of determining the real controversy between the parties, the same has to be allowed. In 2008(2) CTC 224, (Puran Ram Vs Bhaguram and another) the Hon'ble Apex Court has held that amendment in plaint relating to the description of the property will not raise new cause of action and the same can be allowed. This Court as well as the Hon'ble Apex Court has held that if the amendment causes no prejudice to other side, it may be allowed and that apart if it is going to determine the real controversy between the parties, the same could be allowed. 12 In the given case on hand as stated already, the amendment that has been sought for by the respondent was only inclusion of a property in a suit for partition and the same undoubtedly will not prejudice the other side, viz., the petitioner herein. 13 Considering the above circumstances, I am of the considered view that the Court below has rightly exercised its discretion in allowing the application for amendment and the same does not require interference by this Court. 14 In fine, the civil revision stands dismissed. However no order as to cost. Consequently, connected miscellaneous petition is also dismissed.