C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.R.P. Nos.820 & 821 of 2020
&
CMP No.4365 of 2020
Manoharan ... Petitioner in both petitions
Vs.
1. Malarkodi
2. Amutha
3. Kumar
4. Prbhakaran
5. Mary @ Dhanalakshmi
6. Gandhi ... Respondents in both petitions
Common Prayer: Civil Revision Petitions filed under Article 227 of Constitution of India against the fair and decretal order dated 08.11.2019 made in I.A.Nos.721 & 722 of 2019 in O.S. No. 694 of 2018 on the file of the Subordinate Judge, Omalur.
In both petitions :
For Petitioner : Mr. R. Thirugnanam
For R1 & R2 : Mr.V. Sekar
For R3 to R6 : No appearance.
COMMON ORDER
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 The present civil revision petitions are filed against the fair and decretal orders dated 08.11.2019 made in I.A.Nos.721 & 722 of 2019 in O.S. No. 694 of 2018 on the file of the Subordinate Judge, Omalur.
2. The revision petitioner is the 4th defendant in O.S. No.694 of 2018 on the file of the Subordinate Judge, Omalur. The respondents 1 & 2 / plaintiffs filed the above suit for partition of the suit properties into 5 equal shares and to allot one such share to them and also for granting permanent injunction restraining the defendants from alienating the suit properties to the third parties. The defendants 1 to 5 filed a written statement and after framing of issues, both the parties went for trial. The evidence on the side of the plaintiffs and the defendants were closed and both the counsels appearing on behalf of the plaintiffs and the defendants argued the case. The case was posted for judgment on 29.04.2019. Before pronouncing the judgment, the plaintiffs filed the following two petitions:
a) To reopen the case which is posted for judgment under Section 151 2/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 CPC in I.A. No.721 of 2015.
b) To amend the plaint under Order VI Rule 17 and Section 151 CPC in I.A. No. 722/2019.
The learned trial judge allowed both the applications vide his orders dated 08.11.2019. Aggrieved over the same, the 4th defendant has filed the present revision petition.
3. Mr.R. Thirugnanam, learned counsel for the revision petitioners contended that when the matter is posted for judgment after conclusion of trial, the plaintiffs are precluded from filing a petition to amend the plaint as per proviso to Order VI Rule 17 CPC which reads as follows:
"17. Amendment of pleadings. - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as amy be necessary for the purpose of determining the real questions in 3/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 controversy between the parties.
provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
His specific contention is that the the trial court cannot allow the petition to amend the plaint after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. He also relied on the decision in Pandit Malhari Mahale vs. Monika Pandit Mahale & ors reported in 2020 (1) TLNJ 188 (Civil), wherein it has been held thus:
From the evidence on record, it does appear that evidence had begun and thereafter amendment application was filed. Without their being any finding by the Court as contemplated by Order VI Rule 16 proviso, the Court ought 4/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 not to have allowed the amendment.
In the present case, the Civil Judge has not returned any finding that the Court is satisied that in spite of due deligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. Vs. Padmalatha & Anr. [(2009) 2 SCC 409], this Court observed in para 19 as under:
"19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the 5/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view o aforesaid, we allow the appeal and set aside the order of the High Court as well as the Civil Judge, the amendment application stands dismissed."
He also drew the attention of this Court to the orders passed by the trial judge in I.A. No.722/2019 under Order VI Rule 17 and Section 151 CPC, wherein he has observed that the plaintiffs by oversight had omitted to include the amendment in the plaint as sought for by them in the said petition. His specific contention is that, on this ground, the trial court cannot allow the petition to amend the plaint, because as per the decision of the Hon'ble Supreme Court cited supra, the trial court has not given any finding to the effect that in spite of due diligence, the party was unable to introduce amendment before commencement of the trial.
4. The amendment sought for in the petition in I.A. No.722/2019 is extracted hereunder:
1) In the body of the plaint, insert the following para as para 6/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 12-a) between the paras 12 and 13.
12-a) When the plaintiffs were preparing for reply arguments they came to know that they have failed to mention about a partition deed dated 23.09.1974. In fact the said partition deed was created without the plaintiffs' knowledge and behind their back. The said partition deed has not been acted upon and it is a void and invalid document. The suit properties remain in common possession and enjoyment and include the plaintiffs' undivided share. The plaintiffs are not parties to the said fase partition deed dated 23.09.1974 and in fact, the plaintiffs' father Dharmalingam was also not a party to the said partition deed. While so, how the said document can be considered as a genuine and perfect document. The said partition deed won't give valid right and title to the participants of the document and won't bind the plaintiffs' right and share in the suit properties. Hence the plaintiffs ignore the said partition deed.
5. A perusal of the records shows that the 2nd defendant in his written statement dated 20.03.2012 had clearly mentioned about the registered partition deed dated 23.09.1974. It is also seen from the 7/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 counter filed by the present revision petitioner in the petition in I.A. No.722/2019 that P.W.1 was cross examined with regard to the partition deed dated 23.09.1974 and P.W.1 seems to have answered all the questions with regard to the partition deed. This has not at all been disputed by the counsel for the respondent/plaintiff. However he contended that in order to determine the real question in controversy between the parties, the amendment in the instant case is absolutely necessary. As already observed, as per the proviso to Order VI Rule 17 CPC, no application for amendment shall be allowed if the trial has commenced unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. In the instant case, as rightly pointed out by the counsel for the revision petitioners, the trial court has not recorded any findings in this regard. Moreover, the respondent/plaintiff knew the existence of partition deed dated 23.09.1974. However, he did not file either a reply statement or seek for an amendment of the plaint at the earliest point of time. Therefore, the Civil Revision Petitions are liable to 8/10 https://www.mhc.tn.gov.in/judis C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 be allowed. Since the suit is of the year 2018 and posted for judgment, the trial court is directed to dispose of the suit within a period of one month from the date of receipt of a copy of this order.
6. In the result, i. the Civil Revision Petitions are allowed. No costs. Consequently, connected miscellaneous petition is closed. ii. The orders passed by the learned Subordinate Judge, Omalur, dated 08.11.2019 in I.A.Nos.721 & 722 of 2019 in O.S. No. 694 of 2018, is set aside.
iii. The learned Subordinate Judge, Omalur, is directed to dispose of the suit within a period of one month from the date of receipt of a copy of this order.
14.09.2022
Index : Yes/No
Internet : Yes/No
Speaking/non speaking
bga
R.HEMALATHA, J.,
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C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 bga To
1. The Subordinate Judge, Omalur,
2. The Section Officer, VR Section, High Court, Madras.
C.R.P. Nos.820 & 821 of 2020 & CMP No.4365 of 2020 14.09.2022 10/10 https://www.mhc.tn.gov.in/judis