Madras High Court
Rani vs Jayamani on 4 October, 2021
C.R.P.No.2918 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.10.2021
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
C.R.P.(PD).No.2918 of 2016
and
C.M.P.No.14887 of 2016
Rani .. Petitioner
Vs.
Jayamani .. Respondent
PRAYER : Civil Revision Case filed under Article 227 of Constitution of
India, praying to set aside the order dated 14.06.2016 passed in I.A.No.849 of
2015 in O.S.No.87 of 2011 on the file of the Subordinate Judge, Attur.
For Petitioner : Mr.P.Jagadeesan
For Respondent : Mr.L.Mouli
JUDGMENT
The petitioner is the plaintiff in O.S.No.87 of 2011 on the file of
the learned Subordinate Judge, Attur, has preferred I.A.No.849 of 2015 under
Order VI Rule 17 and Section 151 of C.P.C. praying the Court to permit him
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C.R.P.No.2918 of 2016
to carry out the amendments in the plaint in O.S.No.87 of 2011) as described
in the petition. The defendant / respondent raised an objection. On hearing
both sides, the learned trial Judge concluded that there was no change in
nature and character of the suit, but the petition was filed with delay, so the
amendment application was dismissed. Aggrieved by the said order, he has
preferred this Revision.
2. At the time of arguments, the learned counsel for
the petitioner submitted that, the earlier counsel for the petitioner has not
filed the plaint with entire facts in detail, and so the subsequent counsel filed
the said application for amendment with the details of the facts without
changing the prayer and cause of auction. But the learned trial Judge, though
accepted this fact, but dismissed the petition merely on the ground of delay.
He further submitted that, before starting trial, the petitioner is entitled to
carry out any amendment, but without considering this legal aspect, the
learned trial Judge has erroneously dismissed the application on the ground of
delay. Hence, he prays to set aside the order passed by the learned
Subordinate Judge, Attur in I.A.No.849 of 2015. In support of his
submission, the learned counsel relied on the preposition laid in the case of
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C.R.P.No.2918 of 2016
this Court in Sellammal (now Deceased) and others Vs. M.Natesan reported
in (2004)1 M.I.J.100” as follows:
“ Pre-trial amendments are allowed more liberally
as it can be generally assumed that the defendant is not
prejudiced because he will have full opportunity of meeting the
case. The merits of the averments sought to be incorporated by
way of amendment are not to be judged at the stage of allowing
the amendment?”
3. By way of rival submission, the learned counsel for the
respondent submitted that by introducing the amendment, he denied the
factum of marriage with one Mani, which was admitted in the original plaint
and was withdrawn by way of this amendment. Besides, he also contended
that nearly 1.5 years after filing of the plaint, the alleged amendment was
filed, by indulging various facts which are not permissible under law. Hence,
he prayed to dismiss this petition.
4. On a perusal of the entire records, it reveals that, originally
the petitioner filed a suit to re-convey the suit property by declaring the sale
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C.R.P.No.2918 of 2016
deed dated 08.09.2009 standing in the name of respondent / defendant as null
and void. As per the contention of the petitioner, the said sale deed executed
by her in the name of the respondent / defendant, is a sham and nominal
document, which was created for the purpose of her brother's marriage with
the defendant with an undertaking that the said property should be re-
conveyed to her after the birth of the child to her brother. Since the defendant
refused to comply with the re-conveyance, she filed the said suit.
Subsequently after 1.5 years, she filed the application for amendment by
narrating various facts which are all necessary to establish the execution of
sham and nominal document in favour of the defendant. By way of this
amendment, the petitioner wanted to explain the facts in detail which are
necessary to adjudicate the issue involved in the suit as well as to prove the
circumstances which necessitated her to execute the alleged sham and
nominal document in favour of the defendant, that apart it is admitted fact
that the said application was filed before the suit ripe for trial. The trial Court,
though accepted the amendment, but dismissed the application for the reason
that it was filed with the delay of 1.5 years.
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C.R.P.No.2918 of 2016
5. As discussed above, the parties are entitled to file
amendment petition before trial, in order to avoid multiplicity of proceedings
and adjudicate the claim of the parties with all fairness. Further, the proposed
amendment neither changes the character of the suit, nor the relief. Therefore,
it is permissible under law. In this regard it is useful to refer Order VI Rule 17
CPC which reads as follows:
ORDER VI :
.....Rule 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 may be
necessary for the purpose of determining the real questions in
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.”
6. So the petitioner is entitled under Order VI Rule 17 to
carry out the amendment as she prayed. Hence the order passed by the learned
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C.R.P.No.2918 of 2016
trial Judge in I.A.No.849 of 2015, dated 14.06.2016 is set aside. Accordingly,
this Civil Revision Petition is allowed. No Costs. Consequently, connected
miscellaneous petition is closed.
04.10.2021
rri
Index : Yes/No
Speaking Order: Yes/No
https://www.mhc.tn.gov.in/judis/
C.R.P.No.2918 of 2016
T.V.THAMILSELVI,J.
rri
C.R.P.(PD) No.2918 of 2016
and
C.M.P.No.14887 of 2016
04.10.2021
https://www.mhc.tn.gov.in/judis/
