Madras High Court
Anthonyammal Mankayarkarasi vs M.M.Ahamed on 11 September, 2023
C.R.P.(MD)No.1842 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1842 of 2019
and
C.M.P.(MD)No.9468 of 2019
1.Anthonyammal Mankayarkarasi
2.Babu Janakiram
Sureshvannamuthu (Died) ... Petitioners / Petitioners/Plaintiffs
Vs.
M.M.Ahamed ... Respondent / Respondent/Defendants
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order and decree, dated 05.09.2018,
passed in I.A.No.476 of 2018, in O.S.No.301 of 2013, on the file of the
Additional District Munsif, Tenkasi, Tirunelveli District.
For Petitioners : Mr.B.Prahald Ravi
For Respondent : Mr.M.P.Senthil
ORDER
The instant Civil Revision Petition has been filed against the
order, dated 05.09.2018, passed in I.A.No.476 of 2018, in O.S.No.301
of 2013, on the file of the Additional District Munsif, Tenkasi.
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C.R.P.(MD)No.1842 of 2019
2. The revision petitioners herein are the petitioners /plaintiffs
and the respondent herein is the respondent /defendant before the Court
below.
3. For the sake of convenience, the parties are referred to
according to their litigative status before the Court below.
4. It appears that the plaintiffs have filed an application for
the relief of permanent injunction in the year of June 2013. The said suit
was resisted by the defendants by filing written statement during 2013
itself. In the written statement, the defendants have also sought for a
counter claim that the second schedule property is the public passage.
In the meanwhile, the defendants moved an application for amendment
during 03.08.2018, so as to remove the encroachment made in the
public passage. The said submission was resisted by the plaintiffs by
contending that they did not put up any construction during the
pendency of the suit, and that the alleged construction has already been
constructed, even prior to filing of the suit, therefore, prayed to dismiss
the amendment application.
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C.R.P.(MD)No.1842 of 2019
5. However, the Court below has allowed the application on
the ground that though the plaintiffs have contended that the
construction were exist, prior to the filing of the suit, such disputed fact
could only be effectively gone into during trial. Therefore, the Court
below has allowed the application.
6. Aggrieved with the said finding, the plaintiffs have
approached this Court by way of this Civil Revision Petition.
7. It is the submission of the learned counsel for the plaintiffs
that the amendment sought for is after a period of 6 years from the date
of construction, and that since there are no material prima faciely
available prove the existence of the such encroachment, the trial Court
ought not to have allowed the application.
8. Per contra, the learned counsel for the defendant in their
affidavit, have categorically stated that the plaintiffs have put up
construction subsequent to the filing of the written statement, and that
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C.R.P.(MD)No.1842 of 2019
he came to know about the such encroachment belatedly, as he never
visited the village on account of his wife's ill health, therefore, he would
submit that the application for amendment is within the limitation.
9. I have given my anxious consideration to the either side
submissions.
10. It is pertinent to mention here that, the Hon'ble Supreme
Court on consideration of whole gamut of legal position, in respect of
Order 6 Rule 17 of C.P.C., has given it's final conclusion in paragraph
No.70 of the judgment reported in 2022-SCC-Online-SC-1128 (Life
Insruacne Corporation of India V. Sanjeev Builders Private Limited).
The relevant portion of the judgment is as follows-
“70. Our final conclusions may be summed up
thus:
(i) Order II Rule 2 CPC operates as a bar
against a subsequent suit if the requisite conditions for
application thereof are satisfied and the field of
amendment of pleadings falls far beyond its purview. The
plea of amendment being barred under Order II Rule 2
CPC is, thus, misconceived and hence negatived.
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C.R.P.(MD)No.1842 of 2019
(ii) All amendments are to be allowed which
are necessary for determining the real question in
controversy provided it does not cause injustice or
prejudice to the other side. This is mandatory, as is
apparent from the use of the word “shall”, in the latter
part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective
and proper adjudication of the controversy between the
parties, and
(ii) to avoid multiplicity of proceedings,
provided
(a) the amendment does not result in injustice
to the other side,
(b) by the amendment, the parties seeking
amendment does not seek to withdraw any clear
admission made by the party which confers a right on the
other side and
(c) the amendment does not raise a time barred
claim, resulting in divesting of the other side of a
valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally
required to be allowed unless
(i) by the amendment, a time barred claim is
sought to be introduced, in which case the fact that the
claim would be time barred becomes a relevant factor for
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C.R.P.(MD)No.1842 of 2019
consideration,
(ii) the amendment changes the nature of the
suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a
valid defence.
(v) In dealing with a prayer for amendment of
pleadings, the court should avoid a hypertechnical
approach, and is ordinarily required to be liberal
especially where the opposite party can be compensated
by costs.
(vi) Where the amendment would enable the
court to pin-pointedly consider the dispute and would aid
in rendering a more satisfactory decision, the prayer for
amendment should be allowed.
(vii) Where the amendment merely sought to
introduce an additional or a new approach without
introducing a time barred cause of action, the
amendment is liable to be allowed even after expiry of
limitation.
(viii) Amendment may be justifiably allowed
where it is intended to rectify the absence of material
particulars in the plaint.
(ix) Delay in applying for amendment alone is
not a ground to disallow the prayer. Where the aspect of
delay is arguable, the prayer for amendment could be
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C.R.P.(MD)No.1842 of 2019
allowed and the issue of limitation framed separately for
decision.
(x) Where the amendment changes the nature
of the suit or the cause of action, so as to set up an
entirely new case, foreign to the case set up in the plaint,
the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the
plaint, and is predicated on facts which are already
pleaded in the plaint, ordinarily the amendment is
required to be allowed.
(xi) Where the amendment is sought before
commencement of trial, the court is required to be liberal
in its approach. The court is required to bear in mind the
fact that the opposite party would have a chance to meet
the case set up in amendment. As such, where the
amendment does not result in irreparable prejudice to the
opposite party, or divest the opposite party of an
advantage which it had secured as a result of an
admission by the party seeking amendment, the
amendment is required to be allowed. Equally, where the
amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between the
parties, the amendment should be allowed. (See Vijay
Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC
OnLine Del 1897)”
(Emphasis supplied by this Court)
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C.R.P.(MD)No.1842 of 2019
11. The Hon'ble Supreme Court after elaborately gone into the
various precedents and provisions of Specific Relief Act and Code of
Civil Procedure, has ultimately laid down the conclusion as above. As
per the ratio of the Hon'ble Supreme Court, when ever the amendment
is necessary for determining the real question of controversy and that
when the same does not prejudice the case, then the amendment
generally required to be allowed, unless the amendment is time barred,
and changes the nature of the suit.
12. While keeping the above ratio in the mind, if we look at
the facts of this case, here the defendant contends that during the
pendency of the suit, such an encroachment came into existence and the
he moved an application within a period of limitation from the date
when we first came to know about the such encroachment.
13. It is the submission of the defendant that he came to know
about such encroachment recently, as he was away from the suit
property. The above factum was disputed by the plaintiffs. As rightly
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C.R.P.(MD)No.1842 of 2019
observed by the Court below, unless the amendment is permitted, the
real question of controversy could not be decided effectively. Though
the question of limitation lingering in such amendment that also can be
effectively answered during the disposal of this case.
14. Therefore, this Court is of the firm view that the plaintiffs
did not put forth any positive grounds so as to interfere with the order
of the well considered order.
15. In the result, the instant Civil Revision Petition stands
dismissed, by confirming the order of the Court below. There shall be
no order as to cost. Consequently, connected Miscellaneous Petition is
closed.
11.09.2023
NCC : Yes/No
Index :Yes/No
Ls
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C.R.P.(MD)No.1842 of 2019
C.KUMARAPPAN.,J.
Ls
To
1.The Additional District Munsif,
Tenkasi.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
Order made in
C.R.P(MD)No.1842 of 2019
11.09.2023
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