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2012 DIGILAW 4105 (MAD)

Naidu Sangam v. S. Ramiya Naidu

2012-10-04

M.VENUGOPAL

body2012
Judgment :- The Petitioner/Plaintiff has filed the present Civil Revision Petition as against the order dated 30.11.2009 in I.A.No.94 of 2009 in O.S.No.33 of 2008 passed by the Learned First Additional Subordinate Judge, Cuddalore. 2. The Learned First Additional Subordinate Judge, while passing orders in I.A.No.94 of 2009 in O.S.No.33 of 2008 on 30.11.2009, has, among other things, mentioned that '... The present petition sought for by the petitioners is to amend the plaint with regard to the subsequent event i.e., about the election held on 26.04.2009. The real question to be decided in the suit is whether the election held on 26.04.2009 is valid or not. The subsequent event of the election held on 26.04.2009 is not a real controversy to the suit etc.' Further, it is observed that 'The office bearers were elected in the election held on 30.04.2006. As far as this case is concerned the issues framed in the suit are to be decided. The amendment sought for by the plaintiff will introduce a new case'. Consequently, the application has been dismissed without costs. 3. According to the Learned Counsel for the Petitioner, the trial Court has committed an error in dismissing I.A.No.94 of 2009 in O.S.No.33 of 2008 praying for amendment of plaint filed under Order 6 Rule 17 of Civil Procedure Code. 4. It is the submission of the Learned Counsel for the Petitioner that the Petitioner/Plaintiff wanted to incorporate subsequent events which has taken place after filing of the suit and also that the trial Court has misread the ingredients of Order 6 Rule 17 of the Civil Procedure Code. 5. Yet another plea taken on behalf of the Petitioner/Plaintiff is that on the very same pleading, the Petitioner/Plaintiff is banking its case and the subsequent event is only a continuation of the cause of auction which has arisen in the present case. 6. Lastly, it is the submission of the Learned Counsel for the Petitioner/Plaintiff that the trial Court has incorrectly held that the amendment sought for will project a new case. 7. 6. Lastly, it is the submission of the Learned Counsel for the Petitioner/Plaintiff that the trial Court has incorrectly held that the amendment sought for will project a new case. 7. In response, it is the submission of the Learned Counsel for the Respondents that the amendment sought for by the Petitioners/ Plaintiffs in I.A.No.94 of 2009 will change the entire cause of action of the main suit and further, the amendment sought for in the application is a fresh case for a fresh period and the trial is virtually over and therefore, the amendment application is liable to be dismissed in the interest of justice. 8. Added further, it is the stand of the Respondents/Defendants that the main suit in O.S.No.33 of 2008 is to declare the right for three years up to 30.04.2006 and since the suit has become infructuous, there cannot be a case of re-trial. 9. The Learned Counsel for the Respondents/Defendants cites the decision of the Hon'ble Supreme Court in M/s.Ganesh Trading Company V. Moji Ram, AIR 1978 Supreme Court 484 at page 485, wherein, in paragraph 5, it is held as follows: "5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured' of its short-comings, has really become a good cause of action. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured' of its short-comings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured. so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings." 10. He also cites yet another decision of the Hon'ble Supreme Court in Pasupuleti Venkateswarlu V. The Motor & General Traders, AIR 1975 Supreme Court 1409, wherein it is observed as follows: "Where, during the pendency of a proceeding under Rent Control legislation by the landlord for permission to evict the tenants, a subsequent event in the facts of the case takes place which has a material bearing on the landlord's right to evict, the approach of the High Court in revision, in taking cognizance of the new development cannot be said to be wrong or illegal. AIR 1941 FC 5, Rel on." 11. At this stage, it is to be pointed out that the President of the Plaintiff Sangam, in the affidavit in I.A.No.94 of 2009, in paragraph 2, has, inter alia, averred that 'At the time of filing of the suit, we were office bearers of the sangam, who were elected as office bearers on 30.04.2006 and the office expired on 30.04.2009. At this stage, it is to be pointed out that the President of the Plaintiff Sangam, in the affidavit in I.A.No.94 of 2009, in paragraph 2, has, inter alia, averred that 'At the time of filing of the suit, we were office bearers of the sangam, who were elected as office bearers on 30.04.2006 and the office expired on 30.04.2009. Even prior to the expiry of the office in the general body meeting of the plaintiff Sangam held on 26.04.2009, and we were again elected as President, Secretary of the plaintiff sangam, besides other office bearers and we are entitled to continue the suit representing the plaintiff sangam' and has been advised to bring to the notice of Court, the 'subsequent event' by suitably amending the plaint, accordingly, the Petitioners/ Plaintiffs have sought permission of the trial Court to amend the plaint as detailed in the application. 12. In the counter filed by the 3rd Respondent/3rd Defendant (adopted by other Respondents/Defendants), it is mentioned that the amendment will change the whole cause of action and that the amendment is a fresh case for a fresh period. In short, the Respondents/Defendants have pleaded that the relief sought for by the Petitioner/Plaintiff in the main suit has worked itself out. 13. It is to be borne in mind that the Petitioner/Plaintiff, in the main Plaint, has sought the following reliefs against the Respondents/ Defendants: (i) restraining the defendants and their men from acting as members or office bearers of the plaintiff society, using its name and registration number by a decree of permanent injunction. (i.a) declaring that the election of the present office bearers, elected on 30.04.2006 is true and valid and that they are holding the office. (ii) directing the defendants to pay the plaintiff cost of this suit, and (iii) granting all other just and necessary reliefs. 14. Further, in the cause of action paragraph No.IV of the Plaint, the Petitioner/Plaintiff has averred as under: "The cause of action for this suit arose on 30.04.2006 when the election was conducted and the present body was elected, on 07.12.2007 when the plaintiffs received the notice from defendants and on 15.12.2007 when the defendants were removed from the society and on 12.01.2008 when the defendants sent a letter to the plaintiffs, at Cuddalore within the jurisdiction of this Honourable Court." 15. In the written statement filed by the Respondents/ Defendants, it is, among other things, stated that the Plaintiffs have no legal status to act either as President or as Secretary. No one elected them and even the earlier choice of office-bearers, on 27.04.2003 was not valid since it suffered from the same defect and there was no quorum etc. 16. Further, it is the plea of the Respondents/Defendants that in O.S.No.33 of 2008 has been deliberately filed before the Sub Court, Cuddalore by enhancing the value, which is an abuse of process of Court. Moreover, the suit relates only to the Sangam and that the Plaintiffs have addressed a letter dated 15.03.2008 to the H.R. & C.E. Board and if he is the real sangam. 17. It is to be borne in mind that an amendment is not a matter of right of any litigant, but it is for the Court of Law to allow the amendment sought for by a person or reject the same. When a new case is set up and the amendment sought for is not a bona fide one and when the proposed amendment if allowed is to cause harm/injury to the opposite party, then, in law, such an amendment is to be refused by a Court of Law. 18. It is to be noted that the prospective amendment sought for by a party and not to alter and be a substitute of the cause of action on the basis of which original suit has been filed. 19. To put it differently, one distinct cause of action cannot be substituted for another. Equally, a subject matter of the suit cannot be changed by means of an amendment. Similarly, it is not proper for a Court of Law to permit the pleadings to be amended so as to bring in tune with the evidence already let in the case. 20. It is true that power of a Court of Law to allow the pleadings to be amended as per Order 6 Rule 17 is to be exercised to secure the ends of justice and to prevent an abuse of process of Court. Moreover, the present suit O.S.No.33 of 2008 filed by the Petitioner/Plaintiff on the file of the trial Court is in part heard stage and the Respondents/ Defendants are to let in their side of evidence. 21. Moreover, the present suit O.S.No.33 of 2008 filed by the Petitioner/Plaintiff on the file of the trial Court is in part heard stage and the Respondents/ Defendants are to let in their side of evidence. 21. The core issue centering around a main suit is whether the general body election that has taken place on 26.04.2009 is a valid one or otherwise. According to the Petitioner/Plaintiff, the office bearers of the Plaintiff were elected on 30.04.2006. In effect, the amendment sought for in I.A.No.94 of 2009 on the file of the trial Court viz., First Additional Subordinate Judge, Cuddalore to include the following para after para III (7) of the Plaint as: 7(a) "In the general body election held on 26.4.09, Mr.S.Alavandar Naidu was elected as the President and Mr.G.S.Ravi was re-elected as the Secretary of the plaintiff society besides other office bearers etc.", in the considered opinion of this Court, projects a new case based on a fresh cause of action and as such, the subsequent event viz., the election held on 26.04.2009 is alien to the subject matter of the present suit wherein the Petitioner/Plaintiff has sought the relief of the permanent injunction against the Respondents/Defendants and also the relief of declaration that the election of the present office bearers elected on 30.04.2006 is true and valid and that they are holding the office. Therefore, the amendment sought for in I.A.No.94 of 2009 in O.S.No.33 of 2008 to amend the para III(7) of the plaint and to add 7(a) more particularly described in detail of the said application cannot be permitted by this Court, as it negates the admitted position of fact mentioned in the original plaint of the main suit. 22. If the amendment sought for by the Petitioner/Plaintiff in I.A.No.94 of 2009 is allowed by this Court, then, this Court opines that it will provide a different cause of action substituting the original cause of action on which the plaint has been laid by the Petitioner/Plaintiff. Furthermore, when the suit is in part heard stage and posted for adducing evidence on the side of Respondents/Defendants, the amendment application cannot be allowed to take away the accrued legal right of the Petitioner/Plaintiff in the main suit and that too when the evidence on the side of Petitioner/Plaintiff is over. 23. Furthermore, when the suit is in part heard stage and posted for adducing evidence on the side of Respondents/Defendants, the amendment application cannot be allowed to take away the accrued legal right of the Petitioner/Plaintiff in the main suit and that too when the evidence on the side of Petitioner/Plaintiff is over. 23. In the upshot of detailed discussions mentioned supra and also On going through the order passed by the trial Court in dismissing I.A.No.94 of 2009, this Court comes to an inevitable conclusion that the said order does not suffer from any legal infirmity or patent illegality, in the eye of law. Consequently, the Civil Revision Petition is devoid of merits. 24. In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.94 of 2009 dated 30.11.2009 is affirmed by this Court for the reasons assigned in this Revision. Since the suit is of the year 2008 and is in part heard stage, this Court, in the interest of justice, Fair Play and Equity, directs the trial Court to dispose of the main suit O.S.No.33 of 2008 on its file within a period of three months from the date of receipt of copy of this order and report compliance to this Court without fail. The parties are directed to lend their assistance and cooperation to the trial Court in regard to the completion of the proceedings in the main suit within the time fixed by this Court. Consequently, connected Miscellaneous Petition is closed.