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2012 DIGILAW 670 (MAD)

Dhanakotti v. Rani

2012-02-08

R.S.RAMANATHAN

body2012
Judgment :- 1. The defendant in O.S.No.77 of 2007 on the file of the District Munsif Court, Chengalpattu is the revision petitioner. 2. The plaintiffs/ respondents herein filed the suit in O.S.No.77 of 2007 for declaration that the release deed dated 20.3.2006 vide Document No.3005 of 2006 on the file of the Sub Registrar's office, Vembakkam, Chengalpattu is null and void and is not enforceable in law and is not binding on the plaintiffs and for permanent injunction restraining the defendant namely the revision petitioner from alienating those properties mentioned in the schedule. According to the plaintiffs, the schedule mentioned properties are the subject matter of release deed dated 20.3.2006 which was sought to be declared as null and void. After trial, the suit was dismissed and the respondents/ plaintiffs filed an appeal in A.S.No.5 of 2010 and during the pendency of the appeal, the respondents/ plaintiffs filed I.A.No.311 of 2010 under Order 6 Rule 17 of CPC., to amend the plaint schedule stating that certain properties which are not included in the document dated 20.3.2006, are included in the plaint and certain properties which are included in the release deed dated 20.3.2006, are omitted to be included and for that purpose the schedule to the plaint has to be amended and the mistake had happened due to inadvertence and it was not noticed earlier. That application was allowed and aggrieved by the same, this revision is filed. 3. The learned counsel for the revision petitioner vehemently argued that the lower appellate Court without appreciating the provisions of Order 6 Rule 17 CPC., particularly the proviso to Order 6 Rule 17 CPC., erred in allowing the application for amendment and post-trial amendment cannot be ordered as a matter of routine and unless the respondents are able to bring their case within the ambit of proviso to Order 6 Rule 17 CPC., they are not entitled to get an order and in the affidavit filed in support of the application nothing has been stated to satisfy the requirements of the proviso to Order 6 Rule 17 of CPC., and it was only stated that due to inadvertence the correct particulars of the properties were not mentioned in the plaint and they have not stated that despite due diligence wrong particulars were given in the schedule and therefore the Court below ought not to have allowed the application. He also relied upon the Judgement reported in 2008 (14) SCC, 364 (Rajkumar Gurawara (Dead) Vs. S.K.Sarwagi and Company Private Ltd., and another) in support of his contention. 4. I am unable to accept the contention of the learned counsel for the revision petitioner, having regarding to the nature of relief prayed for in the plaint and also in the nature of the amendment sought for. As stated supra, the suit was filed for declaration that the release deed dated 20.3.2006 is null and void and not binding on the plaintiffs and injunction was sought for in respect of the properties covered under the release deed and in the schedule to the plaint some properties were stated as if they are the properties covered under the release deed. 5. Admittedly, no objection was taken by the revision petitioner in the written statement regarding the properties included in the schedule to the effect that they are not the properties which is the subject matter of the release deed. During the pendency of the first appeal the respondents/ plaintiffs realized that the correct particulars of the property included in the release deed were not stated in the schedule to the plaint and it was a mistake and therefore that was sought to be rectified and filed the application for amendment. The Court below also after referring various Judgements of this Court allowed the application by giving the reasoned order. 6. Further in Para 13 of the Judgement reported in 2008 (14) SCC, 364 (Rajkumar Gurawara (Dead) Vs. S.K.Sarwagi and Company Private Ltd., and another), the Hon'ble Supreme Court has stated as follows: “To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.” 7. In the Judgement reported in 2008 (8) Supreme Court Cases 511, (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das), the Hon'ble Supreme Court has held as follows: "Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In AIR 1957 SC, 363 (Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil) which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controvery between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. " 8. Further in the Judgement reported in 2009 (8) MLJ 907 (SC) (Revajeetu Builders & Developers Vs. Narayanaswamy & Sons), the Hon'ble Supreme Court has laid down certain guidelines for allowing or rejecting the application for amendment and they are as follows: (1) Whether the amendment sought is imperative for proper and effective adjudication of the case ? (2) Whether the application for amendment is bona fide or mala fide ? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? and (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. " 9. Therefore, as per the above Judgements, amendments seeking determination of the real question of the controversy between the parties shall be permitted. So far as the post-trial amendments are concerned, unless the aggrieved parties are prejudiced by the amendments the Courts are at liberty to allow the amendment application. In this case there is no question of prejudice caused to the revision petitioner as the amendment sought for did not change the character of the suit and no vested right accrued to the revision petitioner by reason of the disposal of the suit is sought to be taken by reason of the amendment. The suit was filed for declaration of release deed as void and the schedule of properties must only relate to the properties mentioned in the release deed. Admittedly, as the properties stated in the release deed were not included and some other properties were included and for that purpose the amendment application was filed and considering the same the lower appellate Court has rightly allowed the application and in my opinion no prejudice will be caused to the revision petitioner by allowing the amendment. 10. Hence, I do not find any reason to interfere with the orders of the Court below and I do not find any merit in the revision and it is dismissed. The lower appellate Court is directed to dispose of the appeal within a period of three months from the date of receipt of a copy of this order. With the above direction, the Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.