Madras High Court
R.Mani vs Amudhan @ Amudhan Baskar on 17 February, 2021
CRP.NPD.No.2251 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.2251 of 2015
and MP.No.1 of 2015
R.Mani ..Petitioner
Vs.
Amudhan @ Amudhan Baskar ..Respondent
PRAYER:
The Civil Revision Petition is filed under Section 115 of CPC
praying to set aside the order dated 10.02.2015 passed in IA.No.26 of
2014 in AS.No.9 of 2012 on the file of the Additional District Judge
No.IV, Ponneri.
For Petitioner : Mr.P.Krishnan
For Respondent : No appearance
ORDER
This civil revision petition is directed as against the order
dated 10.02.2015 passed in IA.No.26 of 2014 in AS.No.9 of 2012 on
the file of the Additional District Judge No.IV, Ponneri thereby allowing
the petition for amendment.
2. The petitioner is the defendant in the suit filed by the
respondent herein for specific performance. The suit property is comprised
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CRP.NPD.No.2251 of 2015
in S.No.64/1 and in the schedule of the property mentioned as S.No.62/1.
Though the suit was decreed in favour of the respondent, the respondent
failed to note the survey No. mentioned in the schedule of the property.
Aggrieved by the said judgment and decree, the petitioner preferred
appeal suit. While pending the appeal suit, the respondent filed petition for
amendment to amend the survey No.64/1 instead of 62/1 and the reason
for amendment stated that it is a typographical error and the same was
allowed and aggrieved by the same, the present civil revision petition is
filed.
3. The learned counsel for the petitioner would submit that the
amendment sought for in spite of due diligence, the respondent could not
raise the issue before the trial court and even before the commencement
of trial. He further submitted that in the plaint in the paragraph 9, the
respondent stated that the suit property comprised in survey No.64/1
whereas he mentioned in the paragraph 13 as well as the schedule of the
property he mentioned as suit property comprised in survey No.62/1. In
fact the petitioner deposed as DW1 before the trial court and he
categorically stated that the suit property is situated comprised in survey
No.64/1. Even then, the respondent failed to raise the plea of amendment
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CRP.NPD.No.2251 of 2015
before the trial court. In the appeal court, that too after completion of
arguments, the respondent filed the present petition for amendment.
Without considering the above fact, the court below allowed the petition
for amendment. In support of his contention, he relied upon the judgment
in the case of Anthonysamy Vs. Christoraj and another reported in
2013(4) CTC 443 and the order of this Court passed in CRP.PD.No.3937
of 2018 dated 20.11.2020.
4. Heard Mr.P.Krishnan, the learned counsel for the petitioner.
5. The petitioner is the defendant in the suit filed by the
respondent for partition. The suit schedule property is comprised in survey
No.64/1 situated at Panchayat Union Limits of Puzhal, Ambattur Sub
Registration District, North Madras Registration District, Ambattur Taluk,
Thiruvallur District. On perusal of the complaint, in paragraph 9, the
respondent stated that the property comprised in survey No.64/1 whereas
he mentioned survey No. wrongly in paragraph 13 and in the suit schedule
property. The pre-suit notice was issued by the respondent in which stated
survey No.64/1 and whereas in the schedule of the property again wrongly
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CRP.NPD.No.2251 of 2015
mentioned as 62/1. The same error committed in the plaint. The said error
was not noticed by the respondent as well as the petitioner herein. The
trial court decreed the suit and mentioned the schedule of the property as
mentioned in the plaint. In the appeal stage, the respondent noticed the
survey No. mentioned wrongly as 62/1 instead of 64/1. Immediately, the
respondent filed petition for amendment.
6. The learned counsel for the petitioner would submit that the
amendment sought for in spite of due diligence of the respondent he could
not amend the plaint before the court below. In support of his contention,
he relied upon the order of this court passed in CRP.PD.No.3937 of 2018
dated 20.11.2020, wherein it is held as follows:
6. Admittedly, the amendment application was filed after
completion of the evidence. The proviso to Order 6 Rule 17 of
C.P.C., introduced by the Amendment Act of the year 2002
requires a plaintiff who seeks an amendment of the pleading
after commencementof trial to show that the application for
amendment could not have been filed earlier despite exercise
of due deligence. A perusal of the affidavit would show that
no such averments has been made in the affidavit to come to
the conclusion that the amendment could not have been filed
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CRP.NPD.No.2251 of 2015
earlier despite deligence. In fact, the Commissioner's report
is cited as the source for the measurements. The
Commissioner's report admittedly filed before trial.
This court held that in the affidavit filed in support of the petition, no such
averments have been made in the affidavit to come to the conclusion that
the amendment would have been filed earlier despite diligence. In the
case on hand, except the suit schedule property, in the body of the plaint,
the respondent correctly mentioned survey No. as 64/1. Therefore, it is
clear typographical error. Though the petitioner raised these objections
while examining PW1, i..e the respondent herein it was not cross
examined by the petitioner herein. Therefore, nobody has noticed the
survey No. in the schedule property even till the judgment passed in the
suit.
7. The learned counsel for the petitioner also relied upon the
judgment in the case of Anthonysamy Vs. Christoraj and another
reported in 2013(4) CTC 443 and submitted that no amendment can be
permitted in the appeal stage. In the said judgment, it is held as follows:
16. Reverting back to the case on hand, it could be seen
that the proposed amendment is in fact, an introduction of a new
case, as well as wiping out the admission already made by the
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CRP.NPD.No.2251 of 2015
plaintiff. Though, the learned counsel for the revision petitioner,
has contended that the 1st respondent, in order to create a sale
deed dated 09.04.2003, has falsely implicated the petitioner in a
criminal case, and further contended that pleadings were already
available in the original plaint and that the finding of the Court
below that there was a lack of diligence is erroneous, the said
submissions cannot be countenanced, for the simple reason that,
comparison of paragraph Nos.3 and 4 of the original plaint
averments, and the proposed amendment, makes it abundantly
clear that a new case is sought to be introduced at the appellate
stage. Moreover, by virtue of the proviso to Order 6 Rule 17 CPC,
one of the important factors to be considered by this Court is
whether the party seeking amendment, has pleaded and proved
due diligence which determines the scope of the party's
constructive knowledge, which as per the Apex Court in Samuel's
case, cited supra, is very important, to decide an application for
amendment. As rightly observed by the Court below, except to
blame his counsel, no other acceptable and valid reasons have
been given, as to why the plaintiff could not bring in an
amendment during the trial stage. In the absence of proof, as
regards due diligence, as to why the plaintiff could not file an
application for amendment during the trial stage, the application
moved just prior to the arguments, is nothing but a clear attempt
to erase the pleadings and evidence, made by the parties, during
trial, to wipe the admission made by the plaintiff, in the pleadings
and to gain advantage, for upsetting a judgment and decree,
decided against him. The suit has been filed in the year 2005. As
stated supra, upon consideration of pleadings and evidence, the
suit, has been dismissed on 09.03.2010 and that the application
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CRP.NPD.No.2251 of 2015
for amendment has been filed on 16.08.2012, after nearly two
years, from the date of decree in O.S.No.9 of 2005 and that too,
just prior to arguments.
In the above case, the amendment sought for by the party concerned to
erase pleadings and evidence made by the parties. Whereas in the case on
hand, they want to correct the typographical error. In stead of 64/1, they
wrongly typed as 62/1. Therefore, the above judgment cited by the
learned counsel for the petitioner is not helpful to the case of the
petitioner.
8. Further, the amendment sought for by the respondent would
not cause any prejudice to the petitioner herein, since it is only a
typographical error. As discussed above, in the body of the plaint, the
respondent correctly stated the survey No. of the suit schedule property.
In the schedule only, they wrongly typed as 62/1 in stead of 64/1.
Therefore, the court below rightly allowed the petition for amendment and
this Court finds no irregularity or infirmity in the order passed by the court
below.
9. Accordingly, this civil revision petition is dismissed. However,
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CRP.NPD.No.2251 of 2015
the learned counsel for the petitioner would submit that the appeal suit is
of the year 2012 and request for speedy disposal. Considering the said
submission, the appellate court is directed to dispose of the appeal within
a period of four weeks from the date of receipt of copy of this order.
Consequently, connected miscellaneous petition is closed. No order as to
costs.
17.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
lok
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CRP.NPD.No.2251 of 2015
To
The Additional District Judge No.IV,
Ponneri.
G.K.ILANTHIRAIYAN,J.
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.2251 of 2015
lok
CRP.NPD.No.2251 of 2015
17.02.2021
https://www.mhc.tn.gov.in/judis/
