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2012 DIGILAW 3312 (MAD)

S. K. Shanmugham v. Dariva

2012-07-26

M.VENUGOPAL

body2012
Judgment :- 1. The Petitioner/Plaintiff has filed the present Civil Revision Petition as against the order dated 05.01.2010 in I.A.No.1737 of 2004 in O.S.No.2717 of 2000 passed by the Learned Principal District Munsif, Coimbatore. 2. The Learned Principal District Munsif, Coimbatore, while passing orders in I.A.No.1737 of 2004 on 05.01.2010, has, among other things, observed that '... It is not the case of the Petitioner (Plaintiff) that in Door No.4/188, the S.F.No.158/4 is situated, when there is a specific case of both sides, the evidence was let in. Now, the Petitioner/Plaintiff cannot plead that it is typographical error etc.' and resultantly, dismissed the application without costs. 3. The Learned Counsel for the Petitioner/Plaintiff submits that the amendment sought for by the Petitioner/Plaintiff is only a typographical error that has crept in at the time of drafting of the Plaint and therefore, the trial Court has committed an error in dismissing I.A.No.1737 of 2004 by not taking a lenient and liberal view to advance the cause of justice. 4. Apart from the above, the Learned Counsel for the Petitioner/ Plaintiff contends that in the instant case, the Petitioner/Plaintiff has sought only an amendment of survey number in respect of the property and as such, the said amendment does not create a new case and further, there is no legal impediment to allow the application for amendment. 5. Lastly, the Learned Counsel for the Petitioner/Plaintiff submits that the identity of the suit is not in dispute and it is clear and only the survey number where it is situated has been wrongly typed in the pleadings and in law, a Court of Law has the discretionary power to amend the typographical error at any time [including at the time of closure of evidence or part heard stage of the hearing of the suit]. 6. In response, the Learned Counsel for the Respondent/ Defendantsubmits that the Respondent has examined two independent witnesses to prove that the house and the well are situated in S.F.No.159/1 and not in S.F.No.158/4. Furthermore, according to the Learned Counsel for the Respondent/Defendant that the Respondent/Defendant has clearly proved that the house and well are situated in S.F.No.159/1 and not S.F.No.158/4. 7. Moreover, the evidence on the side of the Plaintiff and Defendant was closed in the year 2004 itself and the matter has been posted for arguments. Furthermore, according to the Learned Counsel for the Respondent/Defendant that the Respondent/Defendant has clearly proved that the house and well are situated in S.F.No.159/1 and not S.F.No.158/4. 7. Moreover, the evidence on the side of the Plaintiff and Defendant was closed in the year 2004 itself and the matter has been posted for arguments. At that time only the Revision Petitioner/Plaintiff has filed the present I.A.No.1737 of 2004 praying permission of the Court by saying that the new counsel after examination of the Plaintiff as P.W.1, has come to know that there is a mistake in typing S.F. No. in the Plaint viz., instead of typing it S.F.No.159/1, it has been wrongly typed as 158/4. 8. At this stage, the Learned Counsel for the Revision Petitioner submits that this Court in C.R.P.(PD).No.1665 of 2004 on 26.09.2005 [filed by the Revision Petitioner/Plaintiff] has passed orders in setting aside the order in I.A.No.1737 of 2004 in O.S.No.2717 of 2000 and remitted the matter back to the trial Court for fresh consideration. 9. The Learned Counsel for the Petitioner relied very much on the observation made by this Court in para 6 of the order in C.R.P.(PD)No.1665 of 2004 wherein it is mentioned thus: "6.) The fact remains that the trial Court has not dealt with the matter in a proper perspective, taking note of the Door Number which is not sought to be altered, hence the order impugned is liable to be set aside and the matter has to be remitted back to the trial Court for fresh consideration." 10. To repel the contention of the Learned Counsel for the Revision Petitioner/Plaintiff, the Learned Counsel for the Respondent/ Defendant draws the attention of this Court to the evidence adduced by P.W.1 [in chief examination] to the effect that 'P.W.1 has deposed that in Survey No.158/4 there is a well and house are situated phasing north and there is a toilet, bathroom and also the water tank'. 11. In law, an amendment is not to be permitted by a Court of Law to wriggle out of the admission made earlier. In an amendment application if the bona fides of a party are in doubt, the pleadings cannot be permitted to be amended. 12. 11. In law, an amendment is not to be permitted by a Court of Law to wriggle out of the admission made earlier. In an amendment application if the bona fides of a party are in doubt, the pleadings cannot be permitted to be amended. 12. In view of the fact that the oral evidence adduced on behalf of the Revision Petitioner/Plaintiff's side and the Respondent/ Defendant's side and coupled with documentary evidence are before the trial Court, the stage is now set for hearing of the arguments by the trial Court in the main suit, therefore, this Court is not expressing any opinion one way or other about merits and demerits of the case. Equally, this Court is not expressing any opinion on the evidence adduced by the witnesses on either side, it is for the trial Court to appreciate the oral and documentary evidence adduced by the parties which are very much available before it. The suit is now ripe for hearing the arguments and for pronouncing verdict. After the completion of evidence on both sides, the Petitioner/Plaintiff has projected the I.A. praying for amendment of survey number as per Order 6 Rule 17 of the Civil Procedure Code. 13. At this juncture, the Learned Counsel for the Petitioner/ Plaintiff relied on the decision of the Full Bench decision of this Court in M/s.Hi. Sheet Industries V. Litelon Limited and 4 others, 2007-1-L.W.32 wherein it is, inter alia, mentioned that'Delay in filing the application for amendment of the pleadings is not fatal, when no serious prejudice is shown to have been caused to the opposite party so as to take away any accrued right.' 14. Admittedly, the suit O.S.No.2717 of 2000 filed by the Revision Petitioner/Plaintiff before the trial Court is for injunction. There is a difference between a Court of law allowing an application before the pre-trial stage and post-trial stage. Admittedly, the suit O.S.No.2717 of 2000 filed by the Revision Petitioner/Plaintiff before the trial Court is for injunction. There is a difference between a Court of law allowing an application before the pre-trial stage and post-trial stage. In the instant case on hand, the evidence on both sides was completed in the year 2004 itself and the matter is very much ripe for hearing of the arguments in the main case, when the parties have understood their case and let in evidence on that count and when the oral and documentary evidence are available on record, then, it is up to the trial Court/trial Judge to appreciate the matter one way or other and to arrive at a conclusion by assigning reason for the issues raised in the suit and to pronounce his verdict in the manner known to law. 15. Suffice it for this Court to state that the application praying for amendment of survey number is clearly an afterthought and a belated one and obviously, with a view to erase the evidence already tendered by the parties on record before the trial Court. Viewed in that perspective, this Court comes to an irresistible conclusion that the application for amendment filed by the Petitioner/Plaintiff under Order 6 Rule 17 of the Civil Procedure Code is only a surplus-age, redundant and supernumerary one and as such, the Civil Revision Petition fails. 16. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court viz., Principal District Munsif, Coimbatore in I.A.No.1737 of 2004 in O.S.No.2717 of 2000 dated 05.01.2010 is affirmed by this Court for the reasons assigned in this Revision. Since the suit is pending for hearing of the arguments from the year 2004, this Court, in the interest of justice, Fair Play, Equity, Good Conscience and as a matter of prudence, directs the trial Court to dispose of the main suit within a period of two months from the date of receipt of copy of this order and to report compliance to this Court without fail. Consequently, connected Miscellaneous Petition is dismissed.