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2013 DIGILAW 1164 (MAD)

Muthusami Mudaliar v. Radha

2013-02-28

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioner / First Defendant has filed the instant Civil Revision Petition as against the order dated 24.11.2010 in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 passed by the Learned Additional District Judge (Fast Track Court No. I), Tindivanam. 2. The Learned Additional District Judge (FTC No. I), Tindivanam, while passing orders in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on 24.11.2010, on the file of the Trial Court has, inter alia, categorically observed that "in the present case, written statement already filed by the defendants. Therefore, the facts stated in the citations is quite different to the present case. Therefore, it is not applicable to the present case" and resultantly, dismissed the petition without costs. 3. Challenging the order of dismissal dated 24.11.2010 in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 passed by the Learned Additional District Judge (FTC No. I), Tindivanam, the Learned Counsel appearing for the Petitioner / First Defendant submits that the Trial Court failed to appreciate that the amendment sought for in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 (filed under Order 6 Rule 17 CPC) will not alter the cause of action or character of the suit in any manner. 4. The Learned counsel appearing for the Petitioner / First Defendant urges before this Court that the amendment sought for in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 to amend the written statement filed by the Defendants for the reasons mentioned therein, is only to amplify the defence already projected in the original Written Statement and as such, no limitation period arises in this regard. 5. According to the Learned Counsel appearing for the Petitioner / First Defendant, a party is entitled to file an application for amendment of pleadings at any stage of the proceedings and the reason assigned by the Trial Court in dismissing I.A. No. 26 of 2009 in O.S. No. 2 of 2009 mentioning that the Written Statement has already been filed in that case, etc., is of no relevance. 6. 6. As a matter of fact, the Learned Counsel appearing for the Revision Petitioner / First Defendant submits that the trial Court has committed an error of jurisdiction in dismissing I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on its file, which is liable to be set aside by this Court to promote substantial cause of justice. 7. It is not in dispute that in the main case in O.S. No. 2 of 2009 on the file of the Trial Court, the trial has commenced and evidence on the side of the Respondents / Plaintiffs have been completed and the matter is slated for evidence being let in on the side of the Defendants. At this stage, the Revision Petitioner / First Defendant has though it fit to file I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court seeking amendment of the Written Statement stating that some of the items have been left out and only when the said evidence is to commence, he has come to know that some aspects have been left out in the Written Statement filed earlier. 8. In the details of amendment in the petition in I.A. No. 26 of 2009 in O.S. No. 2 of 2009, the Revision Petitioner / First Defendant has stated that the amendment is to be made to the effect that "in the suit properties, only some properties belong to the individual properties of Sadasiva Mudaliar, grandfather of the Plaintiffs". Also, the Petitioner / First Defendant in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 has averred that in the suit properties, some properties have been purchased in the name of the First Defendant and his brother Arumuga Mudaliar and Ramachandra Mudaliar from and out of their individual income. Specifically in the amendment sought for, it is averred that "there are no properties which have come through the father of Sadasiva Mudaliar and that the aforesaid Ramachandra Mudaliar and thereafter Sadasiva Mudaliar and after Sadasiva Mudaliar, his wife Kamalammal have died intestate". Also, in paragraph 10 of the original Written Statement filed in line No. 2 it is stated that instead of the name Uma Mageswari, the name of the First Defendant's wife Alamelu Ammal has to be added. 9. Also, in paragraph 10 of the original Written Statement filed in line No. 2 it is stated that instead of the name Uma Mageswari, the name of the First Defendant's wife Alamelu Ammal has to be added. 9. It is to be noted that the amendment of pleading, viz., either the Plaint or Written Statement, can be sought for by a party to the litigation. As per O.16 R.17 of the CPC, there is no specific embargo in this regard. However, if the amendment sought for in the application is projected belatedly and that too, after commencement of trial of a proceeding or main suit, yet it is open to a Court of law but a Trial Court, to allow the amendment sought for in Interlocutory Application even by directing concerned party payment of costs. Ordinarily, the amendment of pleadings sought for by a party is to be allowed leniently and liberally to secure the ends of justice. 10. As far as the present case is concerned, in the original Written Statement filed by the Defendants 1 and 2 before the Trial Court, in paragraph 3, it is averred that "the suit properties are the individual properties of Sadasiva Mudaliar and that his heirs Arumuga Mudaliar and the First Defendant, as Legal Representatives, have acquired all the properties of Sadasiva Mudaliar through heirship. Contra to this, to say that the properties are ancestral in nature, are not correct," etc. 11. In the counter filed by the First Plaintiff / First Respondent before the Trial Court, it is pleaded that "in the Written Statement, it is claimed that all the property were purchased and DW1 evidence submitted for recording chief examination defendants produced certain sale deeds which only cover above 3 acre 50 cents while the suit claim is for an extent of about 24 acres" and hence, the application for amendment is not maintainable. 12. It is to be noted that while allowing the application for amendment of the pleadings – (a) Court of Law is not supposed to go into the merits and demerits of the proposed amendment. Only at the time of conduct of trial of the main suit, the merits and demerits of the said amendment can be looked into by the concerned Trial Court, as opined by this Court. Further, a Court of Law is not concerned about the tenability of the amended pleading. Only at the time of conduct of trial of the main suit, the merits and demerits of the said amendment can be looked into by the concerned Trial Court, as opined by this Court. Further, a Court of Law is not concerned about the tenability of the amended pleading. As a matter of fact, the 'Grant of Leave' to amend the pleadings is the normal rule and the refusal is an exception, in the considered opinion of this Court. Also, no litigant should suffer on account of hyper-technicalities of law. To avoid plurality of litigations or minimize the litigation between the parties, the amendment sought for by a party is to be allowed to advance the cause of justice. If the attendant circumstances ex facie point out that the opposite party will not be substantially prejudiced, the prayer for amendment will have to be allowed by a Court of Law as a matter of routine, as opined by this Court. 13. The mere delay / laches are not grounds for refusing the amendment sought for by a party in an application. Just and proper amendment can be introduced by a party 'at any stage of the proceedings' for deciding the real disputes / controversies. No wonder, the first part of O.6 R. 17 CPC vests discretion in a Court of Law. However, the second part of O.6 R.17 CPC imposes an obligation on a Court of Law to allow the amendment. Really speaking, 'at any stage' refers to any stage before the judgment is delivered, in the considered opinion of this Court. It is needless to state that 'an amendment' is not a matter of right but is one of discretion to be exercised by the concerned Court of Law based on sound judicial principles / discretion. 14. On going through the order of the Trial Court in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 dated 24.11.2010, this Court is of the considered view that the Trial Court after stating that "Petitioner / defendant counsel relied on the reported Judgments (2009) 6 MLJ 933 wherein it has been observed that, "An application seeking to file additional written statement will have to be allowed liberally and in the interest of Justice." Has opined that "in the present case, Written Statement already filed by the defendants. Therefore, the facts stated in the citations is quite different to the present case" and consequently, dismissed the Application, which, in the considered opinion of this Court, is not a correct view based on well established principles of law. At this juncture, this Court deems it proper to state that the Petitioner / First Defendant in the main suit, is entitled to take even an inconsistent or even a mutually opposite stand taken by him in the original Written Statement. But in the present case, the main suit in O.S. No. 2 of 2009 filed between the inter se parties is one for partition. As such, the Defendant in the said suit is a Plaintiff and the Plaintiff in the said suit is a Defendant. By allowing the amendment sought for by the Petitioner / First Defendant in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court, more particularly, details of amendment mentioned in the petition will not in any way affect the character of the main suit or even alter the nature of the suit claim. Now, the Revision Petitioner / First Defendant has come out with a plea that only some properties out of the suit properties belong to Sadasiva Mudaliar, etc. Therefore, this Court is of the view that the amendment sought for by the First Defendant in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court, deserves to be allowed. Accordingly, this Court allows the I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court, to prevent an aberration of justice. Per contra, the view taken by the Trial Court in dismissing the I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court on the ground that the Written Statement has already been filed by the Defendant, etc, does not stand moment's scrutiny in the eye of law and the same is set aside. Consequently, the Civil Revision Petition is allowed. 15. In the result, the Civil Revision Petition is allowed and the order passed by the Trial Court in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 dated 24.11.2010 is hereby set aside for the reasons assigned in the Revision Petition. Consequently, the Civil Revision Petition is allowed. 15. In the result, the Civil Revision Petition is allowed and the order passed by the Trial Court in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 dated 24.11.2010 is hereby set aside for the reasons assigned in the Revision Petition. It is open to the Respondents 1 and 2 / Plaintiffs to file any reply statement in regard to the amendment of pleadings allowed by this Court in I.A. No. 26 of 2009 in O.S. No. 2 of 2009 on the file of the Trial Court. Further, upon filing of any reply statement, if any issues are to be framed by the Trial Court, the Trial Court is directed to frame necessary issues after providing due opportunities to both parties. Inasmuch as the suit is in part-heard stage, the Trial Court is directed to complete all formalities in regard to the amendment of pleadings, viz., the amendment of Written Statement, etc., filing of the reply statement (if need be and if situation so warrants). In any event, the Trial Court is directed to dispose of the main suit in O.S. No. 2 of 2009 on its file within a period of four months from the date of receipt of a copy of this order. The Trial Court is also directed to provide necessary opportunities to the respective parties concerned to the litigation. The parties are also required to lend their assistance and cooperation in regard to the completion of the main suit within the time determined by this Court, as mentioned supra. Resultantly, the Civil Revision Petition is allowed in the above terms. No costs. Consequently, connected Miscellaneous Petition is closed.