Madras High Court
Dhanalakshmi vs Vasantha on 28 June, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE: 28.6.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.(PD) No.3157 of 2017
and
C.M.P.No.14813 of 2017
Rajendiran (Died)
1. Dhanalakshmi
2. Muthulakshmi
3. Chellapandi
4. Rathi Petitioners
vs.
Palayam (Died)
1. Vasantha
2. Kanchana
3. Jhonson
4. Reeta
5. Parimala
6. Victor
7. Stalin
8. George Respondents
Civil Revision Petition filed under Article 227 of the Constitution
of India against the order dated 13.6.2017 passed in I.A.No.186 of
2017 in O.S.No.603 of 2007 on the file of the District Munsif,
Thiruvallur.
For Petitioner : Mr.R.Sunilkumar
For Respondents : Mr.Jaikumar Ranganathan for
Mr.K.Balaji
https://www.mhc.tn.gov.in/judis/
2
ORDER
Civil Revision Petition has been filed as against the order dated
13.6.2017 passed in I.A.No.186 of 2017 in O.S.No.603 of 2007 on the
file of the District Munsif, Thiruvallur.
2. Petitioners are defendants 2 to 5 in O.S.No.603 of 2007 filed
by one Palayam, who is the father of the respondents herein.
3. 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. The plaintiff had
claimed to be a cultivating tenant of the suit schedule property.
4. The second defendant had filed a written statement denying
that the plaintiff was a cultivating tenant.
5. The Trial Court framed issues and after framing of issues, the
case was taken up for trial and the plaintiff had filed a proof affidavit
and he was cross examined by the defendants. Apart from the plaintiff,
three more witnesses had been examined as PW2 to PW4 and they
had also been cross examined. On the side of the defendants, the
second defendant was examined and cross examined. At that stage,
the plaintiff, Palayam had passed away. The legal heirs of the plaintiff
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had filed a petition under Order VI Rule 17 CPC seeking to implead
themselves as Legal Representatives of the deceased plaintiff and to
amend the plaint by adding the following contents as para 5(a) in the
plaint:-
"The plaintiffs 2 to 9 submits that these plaintiffs
have worked alongwith the 1st plaintiff in the
suit schedule mentioned properties. This 2nd
plaintiff's husband being cultivating tenant with
regard to suit schedule mentioned properties and
these plaintiffs 2 to 9 are also continued to be in
possession and enjoyment as cultivating tenants
on the basis of tenancy holding over. Now,
these plaintiffs are in possession and enjoyment
as tenants over the suit schedule mentioned
properties."
6. The revision petitioners/defendants have filed a counter
expressing no objection for impleading the legal representatives of the
plaintiff, however, opposing to amend the plaint by adding para 5(a) in
the plaint. They have contended that it was sought to be added by the
legal heirs of the plaintiff to introduce new facts.
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7. The Trial Court, by order dated 13.6.2017, allowed the said
I.A. in toto as against which the present revision petition has been
filed.
8. The learned counsel Mr.Sunilkumar appearing for the revision
petitioners/defendants would submit that the father of the respondents
herein had filed the suit claiming himself to be the cultivating tenant
and the second defendant in the suit, being purchaser of the suit
schedule property, had denied such a claim by filing a written
statement. He would further submit that issues were framed in the
suit, trial had commenced and after examination and cross
examination of P.Ws.1 to 4 and DW1, the sole plaintiff had passed
away and thereafter, a petition was filed by his legal representatives to
implead themselves and to introduce a new pleading by adding para
5(a) in the plaint.
9. The learned counsel for the petitioners would further submit
that the Trial Court, without taking into consideration the fact that the
plaintiff has not averred in the plaint that alongwith him, his family
members were also cultivating the property by putting in manual
labour and it is also not in evidence of the plaintiff that he and his
family members were cultivating the property together and only after
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the trial had progressed to an extent and almost at the verge of
completion of the trial, the legal representatives of the plaintiff had
attempted to introduce a new pleading which would amount to
alternate the very nature of the suit.
10. The learned counsel for the revision petitioners would further
submit that Order VI Rule 17 CPC makes it clear that no application for
amendment shall be allowed after trial has commenced unless the
court comes to the conclusion that inspite of due diligence, the party
could not raise the matter before the trial had commenced and nothing
has been averred by the respondents herein, before the Trial Court
that inspite of due diligence, their father was unable to raise the
matter before commencement of trial and by way of amendment, the
respondents were not attempting to introduce new pleadings,
however, the Trial Court, without considering those aspects, had
passed an erroneous order.
11. The learned counsel for the petitioner would further submit
that admittedly, the plaintiff, who is the father of the respondents, had
admitted in cross examination that he was not cultivating the property.
Further, PW2 had also admitted that there was no cultivation in that
area for the past 20 years. PW3 had also admitted in his cross
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examination that for the past 18 years, there was no cultivation in that
area. Whileso, the respondents/petitioners are trying to introduce a
new plea which would definitely affect the nature and character the
suit and the Trial Court, without considering the same and without
satisfying itself as to whether the conditions specified in Order VI Rule
17 CPC have been complied with, has passed an erroneous order
merely by observing that the revision petitioners will be given
opportunity to raise objection for the same by filing additional written
statement and subjecting the proposed petitioners for cross-
examination.
12. In support of his contention, the learned counsel for the
petitioner relied upon a judgment of the Hon'ble Supreme Court in
M.REVANNA v. ANJANAMMA (DEAD) BY LEGAL
REPRESENTATIVES AND OTHERS ((2019) 4 SCC 332) and
PANDIT MALHARI MAHALE v. MONIKA PANDIT MAHALE AND
OTHERS ((2020) 11 SCC 549).
13. The learned counsel for the respondents herein would submit
that the respondent's father died on 1.3.2016 and they have filed a
petition to get themselves impleaded in the suit and also to add para
5(a) to the plaint to the effect that they had worked with their father in
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cultivating the suit land and they are continuing in possession and
enjoyment of the suit schedule property as cultivating tenants on the
basis of tenancy holding over. By the new plea, the nature and
character of the suit does not get altered. Further, the Trial Court had
also granted opportunity to the petitioners/defendants to file additional
written statement and to subject the proposed parties for cross
examination and thereby, no prejudice is caused to the
petitioners/defendants. The learned counsel for the respondents would
submit that the order of the Trial Court suffers no infirmity and
therefore, would pray that the revision petition may be dismissed.
14. Heard the learned counsel appearing for the parties and
perused the materials available on record.
15. The suit was filed by the father of the respondents herein in
the year 2007. Nowhere in the plaint, it has been pleaded by the
father of the respondents that he alongwith his family members were
engaged in cultivating the land contributing physical labour. Further,
in this case, the petitioners/defendants have filed a written statement
denying that the plaintiff was a cultivating tenant. Issues were framed
and the case was taken up for trial and on the side of the plaintiff he
was examined and 3 other witnesses were examined and cross
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examined.
16. A perusal of the evidence adduced by the parties would
establish that the plaintiff himself, during the cross examination, had
admitted that he was not cultivating the land. Whileso, the plaintiff
died on 1.3.2016 and the respondents herein filed a petition under
Order VI Rule 17 CPC to implead themselves and to add para 5(a) to
the plaint. Though the defendants have expressed no objection for
impleading the legal representatives of the plaintiff, they have
specifically objected to adding of para 5(a).
17. In the Affidavit filed in support of I.A.No.186 of 2017, the
respondents have not pleaded that inspite of due diligence their father
could not raise the matter before the trial had commenced. The Trial
Court also did not return a finding that the court is satisfied that
inspite of due diligence, the plaintiff could not raise the matter before e
commencement of trial.
18. In M.REVANNA v. ANJANAMMA (DEAD) BY LEGAL
REPRESENTATIVES AND OTHERS ((2019) 4 SCC 332), the
Hon'ble Apex court, 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
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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,
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
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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.
..... .....
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
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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
dismissed."
19. In the case on hand, the original plaintiff, father of the
respondents, had never taken a stand in his plaint that his family
members were also contributing their labour in the cultivation of the
suit schedule property. In fact, he himself has admitted in his cross
examination that there was no cultivation in that area for about 20
years. Further, the other witnesses viz., P.Ws.3 and 4 have admitted in
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their cross examination that the suit property and other similarly
placed lands had been cultivated by using the nearby lake water and
now, after an acquisition of lands by the Tamil Nadu Housing Board for
housing scheme in that area, due to lack of water in the lake, there
had been no cultivation of any land. But, now, strangely, after the
death of the original plaintiff, his legal representatives, who seek to
implead themselves in the suit by stepping into the shoes of the
plaintiff, also seek to introduce such a new pleading as if they had
worked with their father in cultivating the suit schedule property.
When the deceased plaintiff himself had contradicted his own claim of
cultivation of the suit schedule property, it is beyond the level of
imagination that his legal representatives had contributed their labour
in cultivating the suit schedule property.
20. 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
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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,
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
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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
High Court as well as of the Civil Judge, the
amendment application stands dismissed."
21. In the instant case, though the original plaintiff had not
taken any steps to raise the additional pleadings to the effect that his
family members were also contributing their labour in cultivating the
suit schedule property till the evidence on the side of the plaintiff was
completed and DW1 was also examined and cross examined. The
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worst case being that not only the plaintiff but also the other witnesses
examined on the side of the plaintiff have admitted, during the cross
examination, that there was no cultivation for about 20 years in that
area.
22. 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
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.
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23. In this case, as stated above, the case is at the fag end of
trial. The father of the respondents had, nowhere, claimed that he
was cultivating the lands alongwith his family members contributing
their manual labour.
24. The court below, without considering the above aspects, has
mechanically allowed the Application seeking to raise additional
pleadings while permitting the impleadment sought for. The order of
the Trial Court, without there being a finding with regard to diligence
on the part of the plaintiff to raise the additional pleadings before
commencement of trial and his inability to do so, is erroneous. In view
of the same, the civil revision petition stands partly allowed. The order
passed by the Trial Court in impleading the legal representatives alone
is confirmed and it is set aside so far as permitting the additional
pleadings as para 5(a).
25. 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.
28.6.2021.
https://www.mhc.tn.gov.in/judis/
Index: Yes/No.
Internet: Yes/No.
ssk.
To
The District Munsif,
Thiruvallur.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
C.R.P.(PD) No.3157 of 2017
and
C.M.P.No.14813 of 2017
28.6.2021.
https://www.mhc.tn.gov.in/judis/
