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2015 DIGILAW 1753 (MAD)

S. Kanthimathiammal v. Nagammal

2015-03-31

D.HARI PARANTHAMAN

body2015
ORDER D. Hari Paranthaman, J. 1. The revision petitioners are the plaintiffs who filed the suit in O.S. No. 239 of 1985 before the Principal District Munsif Court, Tirunelveli, as against the respondents herein/defendants for the relief of declaration of second schedule property as common passage to both plaintiffs and defendants and for consequential injunction. 2. Paragraph 3 of the plaint refers to the plaint plan attached to the suit. The said plaint plan marked as Ex.A1 in the suit showing the common pathway includes the small passage between Door Nos. 171A and 171B. However, while the other common pathway is very clear, the small passage between Door Nos. 171A and 171B is not clear as per Ex.A1-plaint plan. 3. The Trial Court decreed the suit on 30.06.1994 as prayed for. 4. The defendants/respondents preferred appeal suit in A.S. No. 81 of 1994 before the Principal Sub Court, Tirunelveli. In the first appeal, an application was filed by the defendants for appointment of advocate commissioner. 5. The first appellate Court dismissed the appeal suit and also the application for appointment of advocate commissioner by its judgment and decree dated 10.12.1996. 6. The defendants/respondents herein filed second appeal in S.A. No. 1752 of 1997 before this Court questioning the concurrent findings of the court below. 7. This Court by its judgment and decree dated 08.09.2011 in S.A. No. 1752 of 1997, confirmed the judgments of the courts below in respect of common pathway upto an extent and remanded the matter to the first appellate court for deciding the lis relating to the small passage between Door Nos. 171A and 171B. This Court has recorded that Ex.A1-plaint plan is not clear as far as the small passage is concerned. It is relevant to extract paragraph 6 to 12 of the judgment dated 08.09.2011. "6. Admittedly, a perusal of Ex.A1 filed by the appellants, which is rough sketch filed along with the plaint filed by the defendants, would show that the suit property is ABCD. 7. It is seen from the said sketch, the portion shown in Door No. 171/B belongs to the defendants, who are appellants herein. However, the trial court has committed an error in treating Door No. 171/A as one belonging to the plaintiffs. 8. 7. It is seen from the said sketch, the portion shown in Door No. 171/B belongs to the defendants, who are appellants herein. However, the trial court has committed an error in treating Door No. 171/A as one belonging to the plaintiffs. 8. It is also seen that in so far, the common lane is concerned, the courts below have considered the entire material on facts found that even the document of the vendor of the appellants, itself make a mention about the same. Therefore, such a factual finding rendered by the courts below does not warrant any interference. 9. Now the next question for consideration is that the small passage, which the lower appellate court has stated can be used as a common pathway, situated in between door No. 171-A and 171-B. 10. A perusal of the plaint would show that there is no specific plea has been raised over the same, even though the trial court has gone into it. More-over, when the trial court has found that the sketch produced by the plaintiff is wrong, then the suit ought not to have been decreed as prayed for. 11. It is further to be seen that the application filed by the appellants for appointment of commissioner was rejected by lower appellate court, without assigning any reason. Merely because, the appellants have not filed any application before the trial court, the same by itself cannot be a ground to reject the said application. 12. Hence, taking into consideration of the above said facts, this appeal is remitted back in-so-far-as the dispute regarding the usage of pathway situated between the Door No. 171-A and 171-B is concerned. It is open to the parties viz., the plaintiffs and defendants to file appropriate application for raising additional pleas and amendment of the pleadings before the lower appellate court. It is also open to the parties to file proper application for seeking an appointment of commissioner, if so advised, and apart from producing the documents, in support their contention, other than the documents, which have been already produced. 8. The aforesaid narration makes it clear that the only issue now left to be decided by the first appellate court is the small passage between Door Nos. 171A and 171B. 9. 8. The aforesaid narration makes it clear that the only issue now left to be decided by the first appellate court is the small passage between Door Nos. 171A and 171B. 9. By looking into paragraphs 6 to 12 of the judgment, it is clear that this Court felt that Ex.A1 plaint plan was not clear and the Trial Court proceeded as if the property in Door No. 171A is belonging to the plaintiffs. In these circumstances, while remanding the matter back to the first appellate court, this Court directed the first appellate court to decide the short issue only relating to the small passage between Door Nos. 171A and 171B. As far as the judgment and decree of the courts below relating to other common passage is concerned, the same was confirmed by this Court. 10. While remanding back the matter, this Court has stated in paragraph 12 of the judgment that it is open to the parties viz., the plaintiffs and defendants to file proper application for raising additional pleas and amendment of the pleadings before the lower appellate court. 11. The respondents/defendants took up the matter before the Apex Court in SLP. No. 21038 of 2012. The Apex Court dismissed the SLP on 24.09.2012 and confirmed the order of this Court and the first appellate court was directed to proceed as per the direction issued by this Court. 12. Thereafter, the defendants/respondents herein filed I.A. No. 167 of 2013 in A.S. No. 81 of 1994 before the first appellate court for appointment of advocate commissioner. Accordingly, the advocate commissioner was appointed and he filed a report dated 02.08.2014. 13. Thereafter, the revision petitioners/plaintiffs filed an application dated 16.02.2015 in I.A. No. 33 of 2015 under Order 6 Rule17 CPC for amendment of the plaint for a limited extent with relation to Ex.A1-plaint plan, to make it clear about the issue which is concerned in the lis between the parties. 14. In the said I.A. No. 33 of 2015 in A.S. No. 81 of 1994, the defendants/respondents filed counter opposing the same. The first appellate court rejected the application by the impugned order dated 07.03.2015. 15. This revision petition is against the aforesaid order dated 07.03.2015 in I.A. No. 33 of 2015 in A.S. No. 81 of 1994 on the file of the Principal Subordinate Court, Tirunelveli. 16. The first appellate court rejected the application by the impugned order dated 07.03.2015. 15. This revision petition is against the aforesaid order dated 07.03.2015 in I.A. No. 33 of 2015 in A.S. No. 81 of 1994 on the file of the Principal Subordinate Court, Tirunelveli. 16. In my view, the relevant portion found in paragraph 9 of the order of the first appellate court dated 07.03.2015 was the reason given for dismissal of I.A. No. 33 of 2015 in A.S. No. 81 of 1994. 17. The reason given by the first appellate court is that the revision petitioners were not diligent enough to file application at the earliest immediately after the remand by this Court by an order dated 08.09.2011 in S.A. No. 1752 of 1997. Hence, the application was rejected. 18. The learned counsel for the respondents herein has vehemently opposed the application stating that the order of the first appellate court impugned herein is in accordance with the proviso to Order 6 Rule 17 and in support of her contention, she has relied on a judgment in Viswambhar and others vs. Laxminarayan (Dead) through LRs and another, reported in 2001 (6) SCC 163 . 19. It is further submitted by the learned counsel for the respondents that the rights vested with the respondents would be seriously affected, if the application is allowed. Finally, it is submitted that in the event of this Court allowing the CRP, the respondents may be permitted to file additional written statements if any. 20. The learned counsel for the revision petitioners submitted in reply that the proviso to Order 6 Rule 17 was inserted in the year 2002 while the suit is of the year 1985. Hence, the proviso cannot be applied in this case as per the judgment of the Apex Court in State Bank of Hyderabad vs. Town Municipal Council, reported in 2006 (5) CTC 874. He has relied on paragraphs 8 and 9 of the said judgment in this regard, which are extracted hereunder:- "8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply. 9. He has relied on paragraphs 8 and 9 of the said judgment in this regard, which are extracted hereunder:- "8. In view of the said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998, proviso to Order VI, Rule 17 of the Code shall not apply. 9. The High Court relied upon the said proviso and opined that having regard thereto the plaintiff was obligated to establish that in spite of due diligence it could not have raised the matter before commencement of the trial of the suit. The High Court evidently committed an illegality in relying upon the said provision." 21. In that case, it was a suit relating to the year 1998. The Apex Court held that proviso to Order 6 Rule 17 could not be applied for the suit of the year 1998. Hence, the submission of the learned counsel for the respondents that as per the proviso, the CRP has to be rejected has no substance. 22. Further, I am of the view that it is a well settled law that proviso cannot whittle down the main provision of the statute. The proviso shall always be interpreted narrowly and the very purpose of the main provision cannot be defeated by the proviso. Therefore, the application of proviso will be interpreted narrowly. At this juncture, it is also relevant to refer the main provision, Order 6 Rule 17 which provides for amendment of the pleadings at any stage of the proceedings. Therefore, if it requires any amendment of proceedings, the same can be permitted at any stage of the proceedings in the interest of justice. Furthermore, Section 153 of the Civil Procedure Code also provides for amendment of the pleadings at any stage of the proceedings. 23. In this case, this Court thought at the second appellate stage that the amendment of pleadings is necessary. In these circumstances, when this Court thought in 2011 to permit the parties to amend the pleadings, the first appellate court is not correct in rejecting the same on the ground that it was not filed immediately. It is a different matter, if the first appellate court thought to allow the application with cost for some delay in filing the application. It is a different matter, if the first appellate court thought to allow the application with cost for some delay in filing the application. But the first appellate court could not have rejected the application for amendment of the pleadings, as the same would seriously prejudice the case of the plaintiffs/revision petitioners. Hence, the submission of the learned counsel for the respondents that if the application for amendment is allowed, the same would affect the rights of the respondents has no substance. 24. The amendment made in the plaint would not decide the rights of the parties. The learned counsel for the revision petitioners also relied on a judgment of this Court in A. Muppidathi @ Kalyani Ammal vs. E. Rajagopalan Chettiyar, reported in 2006 (4) CTC 131 to the aforesaid proposition. Paragraph 10 of the said judgment is extracted in this regard. "10. Though the above referred decisions show that the delay is also a relevant factor to be considered, filing Application for amendment at the appropriate time cannot be faulted with. In fact, by filing the present Application, the plaintiff has averted another proceeding and also saved the time of the other side, namely, defendant. It is not the case of any one that plaintiff is guilty of filing repeated amendment Applications for rejecting her request. Further, when it is established that there is no bona fide in filing the amendment Application, the Court need not consider the said Application by showing leniency. Further, by allowing the Application, it cannot be said that the Court is bound to grant the relief sought for, unless and until the same is established and substantiated by placing acceptable evidence. I am satisfied that the Court below has failed to consider that by allowing the amendment, there will be no material change between the claim made in the plaint and the proposed amendment. It is also not in dispute that the Application for amendment was made before the commencement of the trial and in fact the proposed amendment will curtail multiplicity of legal proceedings. I am satisfied that the proposed amendment will serve ultimate justice and avoid further litigation. The Court below has not considered all these relevant aspects and committed an error in dismissing the Application filed for amendment." 25. I am satisfied that the proposed amendment will serve ultimate justice and avoid further litigation. The Court below has not considered all these relevant aspects and committed an error in dismissing the Application filed for amendment." 25. Hence, the learned counsel for the respondents could have no apprehension that the rights of the respondents would be affected by way of amendment to the plaint particularly, Ex.A1-plaint plan. 26. The learned counsel for the respondents relied on a judgment in Viswambhar and others vs. Laxminarayan (Dead) through LRs and another, reported in 2001 (6) SCC 163 . It was a case wherein the natural guardian of the minor alienated the property of the minor without prior sanction of the court. As per law, the minor could question and seek to set aside the sale deed within three years after attaining majority. Though the minor on attaining majority filed suit within a period of three years, the prayer was not to set aside the sale deed. When the amendment of the plaint was sought, it was held that the amendment should relate back to the date of filing of the suit and the amendment changed the basis of the suit itself. 27. In my view, the amendment in this case would not change the basis of the suit. Every thing is intact and the amendment is only with regard to the plaint plan, shifting the points A and B. Hence, the said judgment cannot be applied to the facts of this case. 28. In North Eastern Railway Administration Gorakhpur vs. Bhagwan Das (Dead) by LRs reported in 2008 (8) SCC 511 , relied on by the learned counsel for the revision petitioners, the Apex Court has laid down the test relating to amendment of plaint in paragraph 16 of its judgment and the same is extracted hereunder:- "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil & Ors. 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 controversy 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. (Also see: Gajanan Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar)" 29. In these circumstances, I am inclined to set aside the order dated 07.03.2015 passed in I.A. No. 33 of 2015 in A.S. No. 81 of 1994 on the file of the Principal Subordinate Court, Tirunelveli. The application for amendment of the plaint in I.A. No. 33 of 2015 filed before the first appellate court is allowed and it is made clear that the respondents herein have right to file their written statement relating to the amendment. The Civil Miscellaneous Appeal is allowed accordingly. No costs. Consequently, M.P(MD) No. 2 of 2015 is closed.