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2013 DIGILAW 1900 (MAD)

Marakkal v. Maran

2013-06-04

M.VENUGOPAL

body2013
JUDGMENT 1. The Petitioners/Plaintiffs have filed the present Civil Revision Petition as against the order dated 17.03.2011 in I.A.No.321 of 2011 in O.S.No.136 of 2008 passed by the Learned District Munsif, Sathyamangalam. 2. The Learned District Munsif, Sathyamangalam, while passing the order in I.A.No.321 of 2011 in O.S.No.136 of 2008 on 17.03.2011, in paragraph 11, has specifically observed that the relief sought for by the Petitioners (Revision Petitioners/Plaintiffs) is in the nature of changing the cause of action and further, only after framing the additional issues, the Petitioners have averred that they have to amend the Plaint which in effect will create a new cause of action and also that when the suit has been posted for enquiry in regard to the additional issues, the Application filed by the Petitioners is not bona fide and resultantly, dismissed the Application as belated one, without costs. 3. The Learned Counsel for the Revision Petitioners/Plaintiffs submits that in the main suit O.S.No.136 of 2008 filed by the Revision Petitioners/Plaintiffs seeking the relief of permanent injunction against the Respondents/Defendants, arguments have been heard on both sides by the trial Court and Judgments was reserved on 02.02.2011. However, the trial Court has suo motu reopened the main Suit O.S.No.136 of 2008 on 15.02.2011 and on that day, it has framed two additional issues to the effect that (i) without seeking the relief of declaration, the filing of the suit by the Plaintiffs whether it is maintainable? (ii)Whether the Plaintiffs are in possession of suit properties? Thereafter, on 03.03.2011, the Revision Petitioners/ Plaintiffs have filed I.A.No.321 of 2011 seeking amendment of Plaint in regard to declaratory relief viz., that they are the absolute owners of the suit properties. 4. (ii)Whether the Plaintiffs are in possession of suit properties? Thereafter, on 03.03.2011, the Revision Petitioners/ Plaintiffs have filed I.A.No.321 of 2011 seeking amendment of Plaint in regard to declaratory relief viz., that they are the absolute owners of the suit properties. 4. The main tenor of the argument advanced on behalf of the Petitioners/Plaintiffs is that the trial Court itself has suo motu reopened the main suit O.S.No.136 of 2008 after the same has been reserved for Judgment on 02.02.2011 and in fact, on 15.02.2011 the trial Court has reopened the main case for the purpose of letting in additional issues and for marking of additional documents consequent upon framing of additional issues and as such, when the trial Court itself has suo motu reopened the main suit and has framed two additional issues as stated earlier, then, the dismissal of I.A.No.321 of 2011 [filed by the Revision Petitioners/Plaintiffs under Order 6 Rule 17 of Civil Procedure Code seeking permission of the trial Court to amend the Plaint for the reasons thereunder] cannot be found fault with in any manner. In this regard, the trial Court has committed an error in dismissing the I.A. by observing that the Application I.A.No.321 of 2011 has been filed belatedly and there are no bona fides in regard to the filing of the said Application. 5. At this juncture, the Learned Counsel for the Petitioner seeks in aid of the decision of the Hon'ble Supreme Court in A.K. Gupta and Sons Ltd., V. Damodar Valley Corporation, AIR 1967 Supreme Court 96 at special page 98, wherein in paragraphs 8 and 9, it is laid down as follows: "(8) The principal reasons that have led to the rule last mentioned are first, that the object of Courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistake (Cropper v Smith, (1884) 26 Ch D 700 (710-711) and secondly, that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba, (1909) ILR 33 Bom 644 at p. 651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda, 1957 SCR 595 (603): ( AIR 1957 SC 363 at p. 366) ). (9) The expression "cause of action" in the present context does not mean "every fact which it is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill, (1873) 8 CP 107 (116), in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new clim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd., 1962-2 All ER 24, and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas": Dornan v. J.W. Ellis and Co. Ltd., 1962-1 All ER 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time." 6. Repelling the contentions of the Learned Counsel for the Revision Petitioners/Plaintiffs, the Learned Counsel for the Respondents/Defendants submits that the Revision Petitioners/ Plaintiffs before the trial Court has filed I.A.No.321 of 2011 (under Order 6 Rule 17 of the Civil Procedure Code seeking permission of the trial Court to amend the Plaint) belatedly i.e. after the main suit O.S.No.136 of 2008 filed for permanent injunction has been reserved for Judgment as on 02.02.2011 and on 15.02.2011, the trial Court has been perforced to reopen the main suit and has framed two additional issues as stated already and in any event, the Revision Petitioners/ Plaintiffs has projected I.A.No.321 of 2011 belatedly and the said Application lack bona fides. Therefore, the trial Court has rightly held that the said Application is a belated one besides mentioning that it suffers from want of bona fides. Therefore, the view taken by the trial Court in dismissing the Application is perfectly justifiable one in the eye of law which need not be interfered by this Court sitting in Revision at this distance point of time. 7. Therefore, the view taken by the trial Court in dismissing the Application is perfectly justifiable one in the eye of law which need not be interfered by this Court sitting in Revision at this distance point of time. 7. To lend support to the contention that after commencement of trial, an Application seeking amendment of Plaint cannot be permitted by a Court of Law, the Learned Counsel for the Respondents/ Defendants relied on the decision of this Court in Rajamani V. Kumarasamy and 3 others, 2010 (1) MWN (Civil) 393 wherein it is held that 'After filing of the written statement and commencement of trial Plaintiff seeking to amend Plaint by including a new relief, cannot be accepted'. 8. Admittedly, in the present case, the Revision Petitioners/ Plaintiffs have filed the main suit O.S.No.136 of 2008 for permanent injunction. It is not in dispute that in the main suit after hearing arguments, the trial Court has reserved the Judgment on 02.02.2011. On 15.02.2011, it has reopened the main suit and has framed Additional Issues 1 and 2 as stated earlier [including the relief relating to the declaratory one viz., as to whether filing of the suit is maintainable without seeking the relief of declaration]. Only on 03.03.2011 the Petitioners/Plaintiffs have filed I.A.No.321 of 2011 seeking amendment of Plaint [including the declaratory relief in respect of the schedule properties]. Undoubtedly, the said relief asked for by the Revision Petitioners/Plaintiffs is belated and there has been an inordinate delay of nearly 3 years. 9. It is trite in law that ordinarily all amendments ought to be allowed, which are necessary for deciding the real controversies in the suit. After all, a Court of Law is to see that the proposed amendment should not alter/vary/annul the relief already claimed in the Plaint and in fact, it should not be a substitute for the original cause of action on which the original case has been filed. By means of proposed amendment, a Court of Law is to see whether any prejudice is likely to be caused to the other side which cannot be compensated by means of costs. An important thing to be borne in mind by a Court of Law is that no litigant should suffer either on account of mistake committed by a Court of Law on account of technicalities or hyper-technicalities of law. An important thing to be borne in mind by a Court of Law is that no litigant should suffer either on account of mistake committed by a Court of Law on account of technicalities or hyper-technicalities of law. To put it shortly, an amendment sought for by a litigant either as Plaintiff or Defendant ought to be allowed by a Court of Law to reduce/ minimise the litigation between the parties or in any event, to avoid plurality or multiplicity of proceedings. 10. Furthermore, an error or mistake, which if not fraudulent, should not be the ground for rejecting the Application for amendment of pleadings. If the amendment/amendments sought for in the amendment Application goes to the very root of the matter or it concerns with the real issues in controversy between the respective parties, the said Application/amendment, in the considered opinion of this Court, ought to be allowed, notwithstanding the fact there may be a negligent, omission, on the part of a particular party in regard to the inordinate or long delay that has occurred relating to the proposed amendment. It is the discretionary of the Court before which the Application comes for hearing when deals with an amendment Application seeking amendment of Plaint. Order 6 Rule 17 of Civil Procedure Code is not restricted or controlled by Order 7 Rule 11. While allowing an amendment application in respect of pleadings, a Court of Law cannot go into the merits and demerits of the amendment. 11. No wonder, the rules of procedure are only handmaid of Justice. A party/parties should not be denied/refused the just relief, because of some inadvertence, mistake or negligent or even the infraction of rules of procedure whether it is committed by a Court of Law or by the parties to the litigation in any manner or in whatever possible manner. That apart, when a Court of Law deals with an Amendment Application (filed under Order 6 Rule 17 of Civil Procedure Code), it can be filed either by the Plaintiff or by the Defendant as the case may be. 12. That apart, when a Court of Law deals with an Amendment Application (filed under Order 6 Rule 17 of Civil Procedure Code), it can be filed either by the Plaintiff or by the Defendant as the case may be. 12. In the instant case, even though the trial Court has reserved the Judgment in the main suit O.S.No.136 of 2008 [filed for permanent injunction] on 02.02.2011, for framing additional issues, it has reopened the main case and on 15.02.2011 has framed the additional issues and only thereafter, on 03.03.2011, the Petitioners have come out with the Amendment Application in I.A.No.321 of 2011 (under Order 6 Rule 17 of Civil Procedure Code) wherein a declaratory relief has been sought for. After framing the additional issues on 15.02.2011, then, when the Petitioners/Plaintiffs have filed I.A.No.321 of 2011 seeking the amendment of Plaint and also on earlier occasion, when the trial Court has framed additional issues on 15.02.2011 after reopening the main case suo motu, when the Judgment has been reserved on 02.02.2011, then, it cannot be said that there has been an inordinate delay or the said I.A. seeking amendment of Plaint suffers for want of bona fides, as held by the trial Court while dismissing the Application I.A.No.321 of 2011 on 17.03.2011. The said view taken by the trial Court, in the considered opinion of this Court, cannot be countenanced and this Court opines thatthe deliverance of substantial Justice will prevail over technicalities/hyper technicalities. By allowing I.A.No.321 of 2011 (Amendment Application), this Court opines that no prejudice would be caused to the other side except the fact that there has been a delay that has occurred in projecting the Application during 03.03.2011. When the suit has been filed in the year 2008, at best, the amendment sought for by the Revision Petitioners/Plaintiffs in I.A.No.321 of 2011 can even be compensated on costs being levied by this Court. 13. As far as the present case is concerned, this Court is of the considered view that a Court of Law has got a judicial discretion to allow an Application for amendment of Plaint or reject the same. 13. As far as the present case is concerned, this Court is of the considered view that a Court of Law has got a judicial discretion to allow an Application for amendment of Plaint or reject the same. But, this Court opines that a rejection of an Interlocutory Application seeking amendment of Plaint has to be passed on assigning acceptable reasons and a Court of Law is to pass an order in a judicious manner exercising its discretion in favour of allowing the Application, depending on the facts and circumstances of the each case, which float on the surface in a given case. That apart, all such amendments for the purpose of determining the real controversies in the suit are necessarily to be allowed by a Court of Law. In the instant case, the conclusion arrived at by the trial Court, in dismissing the I.A.No.321 of 2011 holding that the said Application has been filed belatedly and further it suffers from bona fides are not a valid and reasonable one. As such, this Court is left with no option but to interfere with the order, to promote substantial cause of Justice. Accordingly, this Court sets aside the order passed by the trial Court in I.A.No.321 of 2011 in O.S.No.136 of 2008 dated 17.03.2011 since the said order is not in confirmity with the Law. Consequently, the Civil Revision Petition succeeds. 14. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.321 of 2011 in O.S.No.136 of 2008 dated 17.03.2011 is hereby set aside by this Court for the reasons assigned in this Revision. The trial Court is directed to permit the Revision Petitioners/Plaintiffs to amend the Plaint within a period of two weeks from the date of receipt of copy of this order. It is also open to the trial Court to grant time to the Respondents/Defendants to file subsequent pleadings under Order 8 Rule 9 of Civil Procedure Code (Additional Written Statement, if they so desire/advised) within a period of one week. The trial Court is to permit the parties to let in oral and documentary evidence subsequent to the amendment of pleadings and filing of the additional Written Statement if any by the parties concerned. The trial Court is to permit the parties to let in oral and documentary evidence subsequent to the amendment of pleadings and filing of the additional Written Statement if any by the parties concerned. Taking note of the fact that the suit is of the year 2008, the trial Court, after providing due opportunities to both parties, is directed to dispose of the main suit O.S.No.136 of 2008 within a period of five months from the date of receipt of copy of this order and to report compliance to this Court without fail. The parties are directed to lend their assistance and a relentless co-operation in regard to the completion of the main suit proceedings in a comprehensive manner. Consequently, connected Miscellaneous Petition is closed.