Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 2814 (MAD)

Sivakumar v. Balasubramaniam

2012-07-04

V.DHANAPALAN

body2012
Judgment :- 1. This Civil Revision Petition has been filed against the order of the learned Subordinate Judge at Sankari made in I.A. No: 537 of 2011 in O.S. No: 33 of 2006 dated 23.09.2011. 2. The revision petitioners are the defendants in the suit for declaration and permanent injunction. The suit is filed for a decree in favour of the plaintiff in cancelling the partition deed dated 27.02.2006 entered into between the plaintiff and the defendants as void, inoperative and does not divest the absolute title of the plaintiff in the suit properties and for a permanent injunction against the defendants from trespassing into the suit properties and causing interference to plaintiff's peaceful possession and enjoyment of the same and further relief of permanent injunction restraining the defendants from alienating, encumbering and to carry on mutation proceedings in respect of the suit properties till the disposal of the suit. On completion of the pleadings, the matter was proceeded with trial. Evidence was let in and the matter was posted for arguments. At that stage, the respondent / plaintiff has filed an application in I.A. No: 537 of 2011 to amend the plaint in respect of the suit schedule property by including large extent of lands with so many survey numbers. This amendent application was resisted by the revision petitioners by filing a counter stating that the suit was posted for arguments and their counsel had submitted his arguments and, therefore, the amendment at that stage cannot be ordered and if so ordered, that will definitely prejudice the very conclusion of the proceedings. 3. The trial Court on consideration of the case, even though admitted that the matter was posted for arguments, taking into account the fact that the plaintiff had ommitted to include all the properties mentioned in the partition deed dated 27.02.2006 as suit schedule properties and that it is necessary to include all such properties, allowed the interlocutory application. Aggrieved over the same, the defendants are before this Court in the present revision. 4. Mr. P. Valliappan learned counsel appearing for the revision petitioners assails the order of the trial Court on various grounds. He submits that the amendment was allowed at the stage of arguments which not only causes prejudice to the revision petitioners personally it would delay the conclusion of the proceedings as well. 4. Mr. P. Valliappan learned counsel appearing for the revision petitioners assails the order of the trial Court on various grounds. He submits that the amendment was allowed at the stage of arguments which not only causes prejudice to the revision petitioners personally it would delay the conclusion of the proceedings as well. It is his further submission that under proviso to Order 6 Rule 17 C.P.C. no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of the due diligence, the party could not have raised the matter before the commencement of the trial. He relies on the decision of the Supreme Court reported in 2012 SAR (Civil) 169 ( J. Samuel and Others vs. Gattu Mahesh and Others ). Learned counsel also drew the attention of this Court to an order earlier made by this Court in C.R.P. ( P.D. ) Nos: 2650 and 2651 of 2011 dated 25.07.2011, which arose from this very same Original Suit, wherin while dismissing those C.R.Ps., this Court expressed its concern that the trial is being delayed unnecessarily. 5. On the other hand Mr. P. Jagadeesan learned counsel for the respondent contended that this is a deserving case where certain properties under the Partition deed dated 27.02.2006 alone were included as suit schedule properties instead of including all the properties and hence, an application was filed later to amend the plaint by including the other properties also. He would submit that when the prayer in the suit itself is to cancel the Partition Deed dated 27.02.2006 as void, inoperative and does not divest the absolute title of the plaintiff and for two other permanent injunctions thereby restraining the defendants from trespassing and causing interference to the plaintiff's peaceful possession and enjoyment of the same and also to restrain the defendants from alienating, encumbering and to carry on mutation proceedings in respect of the suit properties, it is obvious that all the properties which forms part of the schedule to the said Partition Deed dated 27.02.2006 shall be included in the schedule to the suit. According to the learned counsel, when such being the position, there is no error or infirmity in the order allowing the amendment application and he prays for dismissal of the C.R.P. 6. According to the learned counsel, when such being the position, there is no error or infirmity in the order allowing the amendment application and he prays for dismissal of the C.R.P. 6. I have heard the learned counsel on either side and perused the material documents available on record. It is not in dispute that these revision petitioners are the defendants in the suit filed by the respondent / plaintiff for a decree in favour of him in cancelling the partition deed dated 27.02.2006 entered into between the plaintiff and the defendants as void, inoperative and does not divest the absolute title of the plaintiff in the suit properties and for a permanent injunction against the defendants from trespassing into the suit properties and causing interference to plaintiff's peaceful possession and enjoyment of the same and further relief of permanent injunction restraining the defendants from alienating, encumbering and to carry on mutation proceedings in respect of the suit properties till the disposal of the suit. It is also not in dispute that after completion of the pleadings and framing of issues trial commenced. At that stage, plaintiff filed an interlocutory application seeking amendment of the plaint by including large extent of properties in the schedule to the suit. The trial Court allowed that application. 7. In a very recent decision, the Hon'ble Supreme Court, in the case of J. Samuel and others vs. Gattu Mahesh and others reported in 2012 SAR (Civil) 169, held 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. Thus, it is now well settled that no amendment can be allowed after commencement of trial. In decision cited supra, the Supreme Court, after enunciating all relevant decisions in the field, held as under in para 23: "23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court, in various decisions, upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. This Court, in various decisions, upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 CPC as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other's case. It also helps checking the delays in filing the applications." 8. Having regard to the above categoric decision of the Hon'ble Supreme Court and the ratio laid down therein, it is to be stated that prior to insertion of proviso clause to Order 6 Rule 17 CPC, it was permissible for the Court to allow belated amendment by compensating the other side by awarding costs. But, pursuant to the insertion of the proviso, 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. In view of the insertion of the proviso, the entire object of the amendment introduced in 2002 in CPC is to stall filing of application for amending the pleading subsequent to commencement of trial to avoid surprises and that the parties had sufficient knowledge of other's case. 9. The ratio laid down by the Supreme Court squarely applies to the case on hand. Looking from any angle, it cannot be said that a party to the suit cannot seek amendment of the plaint at any stage of the suit especially after commencement of trial. Such being the legal position, the trial Court ought not to have allowed the interlocutory application seeking amendment of the plaint. 10. In the instant case, on 11.08.2011, the petitioner/plaintiff filed a petition to amend the plaint by including all the properties mentioned in the Partition Deed dated 27.02.2006 as the Suit Schedule properties after the commencement of the trial at the stage of deposition of P.W.1's witness. 10. In the instant case, on 11.08.2011, the petitioner/plaintiff filed a petition to amend the plaint by including all the properties mentioned in the Partition Deed dated 27.02.2006 as the Suit Schedule properties after the commencement of the trial at the stage of deposition of P.W.1's witness. When the suit is of the year 2006, the attempt made by the petitioner in filing the petition to amend the plaint at the belated stage cannot be allowed to stand and therefore, the amendment petition allowed by the Trial Court holding that the partition Deed dated 27.02.2006 is a document for consideration of the issue in question is unsustainable in law. 11. Accordingly, the impugned order of the trial Judge dated 23.09.2011 made in I.A. No: 537 of 2011 in O.S. No: 33 of 2006 is set aside. This Civil Revision Petition is allowed. Connected miscellaneous petition is closed. There shall be no orders as to the costs.