Vijayakumar vs Sumathi
2021 Latest Caselaw 14194 Mad

                                                            1

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATE: 15.7.2021.

                                                         CORAM

                                   THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                                C.R.P.(PD) No.1363 of 2017
                                                            and
                                                  C.M.P.No.6358 of 2017

                     Vijayakumar                                               Petitioner

                                     vs.

                     1. Sumathi

                     Subramani (Died)

                     2. Ambiga

                     3. Ramesh

                     4. Anbu                                                   Respondents


                            Civil Revision Petition filed under Article 227 of the Constitution
                     of India against the Fair and Decreetal order dated 13.2.2017 passed
                     in I.A.No.574 of 2016 in O.S.No.12 of 2012 on the file of the Additional
                     District Munsif, Chengam.

                               For Petitioner     : Mr.C.Munusamy

                               For R1 to R3       : Mr.P.Mani

                                                          ORDER

Civil Revision Petition has been filed by the plaintiff as against

the order dated 13.2.2017 passed in I.A.No.574 of 2016 in O.S.No.12

https://www.mhc.tn.gov.in/judis/

of 2012 on the file of the Additional District Munsif, Chengam.

2. Brief facts behind the filing of the present civil revision petition

is as under:-

i) The suit was filed for a permanent injunction restraining the

defendants and their men from interfering with the plaintiff's peaceful

possession and enjoyment of the suit property. According to the

plaintiff, the suit property was originally a Government poramboke

land and it was allotted to his mother Jayalakshmi Ammal vide order

dated 28.2.1990 of the Special Tahsildar in Reference

No.Na.Ka.1526/86, HS and since the original of such proceedings was

misplaced, he had filed the certified copy of the same. The mother of

the plaintiff had developed the said land and was in possession and

enjoyment of the same. She had started to put up two constructions

in the said land, however, due to financial issues she had faced, she

could not complete the constructions, but, she had been in possession

and enjoyment of the same. The suit property bears Plot No.101 as

evidenced by the allotment order of the Special Tahsildar. The

possession and enjoyment of the suit property on the allotment of the

same by the Special Tahsildar is strengthened by the certified copy of

the patta produced by the plaintiff. Having found that she could not

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maintain the suit property, the mother of the plaintiff had settled the

suit property in favour of the plaintiff vide gift settlement deed dated

31.10.2011 and thereby, the plaintiff has become the owner of the suit

property and has been in possession and enjoyment of the same. The

revenue records viz., Chitta has also been transferred to the name of

the plaintiff vide Chitta dated 28.11.2011. When the plaintiff intended

to put up new construction after removing the existing ones,

defendants 1 and 2 had attempted to encroach the suit property

highhandedly with the aid of anti social elements. Hence, the plaintiff

had filed the suit originally for permanent injunction.

ii) The defendants filed written statement contending that the

suit property was allotted by the Government in her favour and

subsequently, she had executed two consent deeds in favour of her

brother, the fifth defendant and her husband, the second defendant

and they had put up some construction in the suit property with the

help of the Fishermen Union and thereby she had denied the title of

the plaintiff.

iii) During the trial, the defendants had marked the allotment

order in favour of the first defendant, of course, with the objections of

the plaintiff, through DW1.

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iv) At this stage, having found that the defendants denied the

title of the plaintiff, the plaintiff has come forward with the petition

under Order VI Rule 17 CPC to amend the plaint to the effect that the

suit is one for declaration of his title and for permanent injunction

instead of suit for permanent injunction in simplicitor.

v) The first defendant had filed a counter wherein, while

denying the title of the plaintiff, she had also denied almost all the

averments of the plaintiff and contended as under:-

The suit property was allotted to the first defendant as evidenced

by patta dated 28.10.1999 and she had executed two consent deeds in

favour of one Thiyagarajan and her brother. The title of the first

defendant is confirmed by the certificate issued by the Village

Administrative Officer dated 25.3.2002. In the written statement filed

by the defendants, it was clearly denied that the suit property was

neither allotted to the mother of the plaintiff nor it was settled by her

on the plaintiff. Therefore, the present petition is filed by the plaintiff

after lapse of 4 years from the date of filing of the written statement

only to drag on the proceedings and it is not at all maintainable since

the entire cause of action itself is sought to be changed. The petition

is also barred by limitation as it was filed after four years from the

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date of filing of the written statement.

vi) The Trial Court, having found that the petition is a time

barred one, dismissed the same. Aggrieved against the same, the

plaintiff has come forward with the present civil revision petition.

3. Having heard the learned counsel appearing for the parties

and perused the materials available on record, this court finds that the

plaintiff had come forward with the suit on 7.1.2012 seeking for a

permanent injunction against the defendants and the defendants have

filed their written statement on 18.7.2012 itself specifically denying

the title of the plaintiff, however, the plaintiff instead of seeking for the

amendment immediately, had preferred the petition seeking

amendment after lapse of about four years which is clearly barred by

limitation in view Article 58 of the Limitation Act which prescribes a

period of 3 years for filing the suit for declaration. Further, the

plaintiff/revision petitioner has not averred in his petition anything to

the effect that despite his due diligence, he could not raise the matter

before the trial had commenced, in compliance of Order VI Rule 17

CPC.

4. Order VI Rule 17 CPC makes it clear that no application for

amendment shall be allowed after trial has commenced unless the

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court comes to the conclusion that inspite of due diligence, the party

could not raise the matter before the trial had commenced.

5. The Hon'ble Supreme Court in M.REVANNA v. ANJANAMMA

(DEAD) BY LEGAL REPRESENTATIVES AND OTHERS ((2019) 4

SCC 332) , while upholding the order of the High Court, rejected the

plea of the plaintiff therein to grant permission for amendment of the

plaint on two grounds, viz., (i) the application is a belated one; and (ii)

not a bona fide one. It has further held that if the amendment

application is allowed, it would change the nature and character of the

suit and lead to a travesty of justice, inasmuch as the Court would be

allowing the plaintiffs therein to withdraw their admission made in the

plaint. The relevant portion of the decision is extracted hereunder for

ready reference:-

" 7. Leave to amend may be refused if it

introduces a totally different, new and

inconsistent case, or challenges the fundamental

character of the suit. The proviso to Order VI

Rule 17 of the CPC virtually prevents an

application for amendment of pleadings from

being allowed after the trial has commenced,

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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

the trial. The proviso, to an extent, curtails

absolute discretion to allow amendment at any

stage. Therefore, the burden is on the person

who seeks an amendment after commencement

of the trial to show that in spite of due diligence,

such an amendment could not have been sought

earlier. There cannot be any dispute that an

amendment cannot be claimed as a matter of

right, and under all circumstances. Though

normally amendments are allowed in the

pleadings to avoid multiplicity of litigation, the

Court needs to take into consideration whether

the application for amendment is bona fide or

mala fide and whether the amendment causes

such prejudice to the other side which cannot be

compensated adequately in terms of money.

..... .....

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9. Having regard to the totality of the

facts and circumstances of the case, we are of

the considered opinion that the application for

amendment of the plaint is not only belated but

also not bona fide, and if allowed, would change

the nature and character of the suit. If the

application for amendment is allowed, the same

would lead to a travesty of justice, inasmuch as

the Court would be allowing Plaintiff Nos. 1 to 5

to withdraw their admission made in the plaint

that the partition had not taken place earlier.

Hence, to grant permission for amendment of

the plaint at this stage would cause serious

herein.

8. Accordingly, the order of the High Court

quashing the order of the Trial Court dated

14.11.2008, which had allowed the application

for amendment of the plaint, is hereby

confirmed. The appeal fails and is hereby

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dismissed."

6. In PANDIT MALHARI MAHALE v. MONIKA PANDIT

MAHALE AND OTHERS ((2020) 11 SCC 549), while allowing the

Civil Appeal and thereby setting aside the order of the High Court as

well as of the Civil Judge and consequently dismissing the amendment

application on the ground of lack of finding by the Civil Judge with

regard to due diligence, the Hon'ble Supreme Court, referring to the

decision in VIDYABAI v. PADMALATHA ((2009) 2 SCC 409) has

observed as under:-

"7. In the present case, the Civil Judge has not

returned any finding that the Court is satisfied

that in spite of due diligence, the party could not

have raised the matter before the

commencement of trial. In Vidyabai & Ors. v.

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,

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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.”

8. 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 order of the Trial Judge is unsustainable.

The High Court has not adverted to the above

aspect of the matter. In view of aforesaid, we

allow the appeal and set aside the order of the

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High Court as well as of the Civil Judge, the

amendment application stands dismissed."

7 In L.C.Hanumanthappa v. H.B.Shivakumar ((2016) 1 SCC

332) , the Hon'ble Apex Court has held as under:-

"29. Applying the law thus laid down by this Court to

the facts of this case, two things become clear. First,

in the original written statement itself dated 16th May,

1990, the defendant had clearly put the plaintiff on

notice that it had denied the plaintiff’s title to the suit

property. A reading of an isolated para in the written

statement, namely, para 2 by the trial court on the

facts of this case has been correctly commented upon

adversely by the High Court in the judgment under

appeal. The original written statement read as a whole

unmistakably indicates that the defendant had not

accepted the plaintiff’s title. Secondly, while allowing

the amendment, the High Court in its earlier judgment

dated 28th March, 2002 had expressly remanded the

matter to the trial court, allowing the defendant to

raise the plea of limitation. There can be no doubt

that on an application of Khatri Hotels Private Limited

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(supra), the right to sue for declaration of title first

arose on the facts of the present case on 16th May,

1990 when the original written statement clearly

denied the plaintiff’s title. By 16th May, 1993

therefore a suit based on declaration of title would

have become time-barred. It is clear that the doctrine

of relation back would not apply to the facts of this

case for the reason that the court which allowed the

amendment expressly allowed it subject to the plea of

limitation, indicating thereby that there are no special

or extraordinary circumstances in the present case to

warrant the doctrine of relation back applying so that

a legal right that had accrued in favour of the

defendant should be taken away. This being so, we

find no infirmity in the impugned judgment of the High

Court. The present appeal is accordingly dismissed."

8. The proviso to Order VI Rule 17 of CPC prevents Application

for amendment of pleadings from being allowed after the trial has

commenced, unless the Court comes to the conclusion that inspite of

due diligence, the party could not have raised the matter before the

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commencement of the trial. The proviso, to an extent, curtails

absolute discretion to allow amendment at any stage thereby shifting

the burden on the person, who seeks an amendment after

commencement of the trial to show that inspite of due diligence, such

an amendment could not have been sought earlier. Though, normally,

amendments are allowed in the pleadings to avoid multiplicity of

litigation, the court needs to take into consideration whether the

Application for amendment is bona fide or mala fide and whether the

amendment is necessary to decide the real dispute between the

parties and whether the amendment causes such prejudice to the

other side which cannot be compensated adequately in terms of

money.

9. In the case on hand, it is seen that the trial had already

commenced and it has reached the stage of examination of witnesses

on the side of the defendants. The denial of title of the plaintiff to the

suit property was made by the defendants in their written statement

on 18.7.2012 itself whereas the plaintiff had preferred the application

seeking amendment, which would change the nature of the suit claim

itself, only after four years during the middle of the trial. The Trial

court, having rightly observed the above aspects, has dismissed the

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Application seeking the amendment. In view of the same, the civil

revision petition stands dismissed confirming the order passed by the

court below.

10. Considering the long pendency of the Original Suit, the Trial

Court is directed to dispose the same within a period of 12 months

from the date of receipt of a copy of this order. No costs. The

connected Miscellaneous Petition is closed.

15.7.2021.

Index: Yes/No.

Internet: Yes/No.

ssk.

To

The Additional District Munsif, Chengam.

https://www.mhc.tn.gov.in/judis/

A.D.JAGADISH CHANDIRA, J.

Ssk.

C.R.P.(PD) No.1363 of 2017 and C.M.P.No.6358 of 2017

15.7.2021.

https://www.mhc.tn.gov.in/judis/