Madras High Court
R.Nambi vs P.Parvathi Nathan on 5 April, 2024
C.R.P.(MD)No.2139 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 22.02.2024
Pronounced on : 05.04.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(MD)No.2139 of 2019
and
C.M.P.(MD)No.11229 of 2019
1. R.Nambi
2. R.Sankarammal
3. R.Shanmugavel
4. R.Subramanian ... Petitioners/
Appellants/
Plaintiffs 2 to 5
Vs.
P.Parvathi Nathan ... Respondent/
Respondent/
Defendant
Prayer : This Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the fair and decretal order passed in
I.A.No.150 of 2015 in A.S.No.4 of 2015 dated 08.02.2018 on the file of
the Additional Sub Court, Tirunelveli.
1/12
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.2139 of 2019
For Petitioners : Mr.H.Arumugam
For Respondent : No appearance
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.No.150 of 2015 in A.S.No.4 of 2015 dated 08.02.2018 on the file of
the Additional Subordinate Court, Tirunelveli, dismissing the application
filed under Order 6 Rule 17 of the Code of Civil Procedure.
2. The revision petitioners are the appellants/plaintiffs 2 to 5 and the
respondent is the respondent/defendant.
3. The father of the revision petitioners Rengasamy Konar has filed
a suit in O.S.No.572 of 2007 against the respondent claiming declaration
that the east boundary of the first schedule property is AB wall and for
mandatory injunction directing the respondent for removal of windows,
sunshades and ventilators erected in AB wall, in the second schedule
property. The respondent has filed a written statement. Pending suit, the
original plaintiff Rengasamy Konar had died and his sons and daughter
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got themselves impleaded as plaintiffs 2 to 5. The learned II Additional
District Munsif, after full-trial, has passed a judgment and decree dated
18.09.2014 dismissing the suit. Aggrieved by the dismissal of the suit, the
revision petitioners have preferred an appeal and the same is pending in
A.S.No.4 of 2015 on the file of the Additional Subordinate Court,
Tirunelveli. Pending appeal, the revision petitioners have filed the present
application in I.A.No.150 of 2015 under Order 6 Rule 17 C.P.C. seeking
permission to amend the plaint as detailed in the application. The
respondent has filed a counter statement raising serious objections. The
learned appellate Judge, after enquiry, has passed the impugned order
dated 08.02.2018 dismissing the amendment application. Aggrieved by the
order of dismissal, the present revision came to be filed.
4. The case of the revision petitioners, in the affidavit filed in
support of the amendment application, is that their father, while giving the
description of the property in the plaint, has given the boundaries shown
in the sale deed dated 21.06.1956 executed by his brother, that north-south
street belonging to the municipality is lying on the west of the suit first
schedule property, that their father's property is situated on the east of the
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said street, that the Government records would go to show that street is
lying on the west of first schedule property in T.S.No.477/29, that the
original plaintiff instead of showing street as western boundary has shown
manakavalakonar site and on that basis, the trial Court has proceeded with
the trial and dismissed the suit, that the revision petitioners were
impleaded on 28.01.2014 and at that time, they were not aware of the
wrong description of their western boundary, that they came to know
about the wrong description subsequent to the dismissal of the suit and
that therefore it has become just and necessary to amend the plaint so as to
rectify the mistake occurred in describing the suit property or else, the
revision petitioners will be put to irreparable loss and hardship.
5. The defence of the respondent is that manakavalakonar site alone
is situated on the west of the suit first schedule property, that the
description shown in the plaint as well as in the sale deed dated
21.06.1956 are correct, that the present contention of the revision
petitioners that north-south street is lying on the west of the first schedule
property is incorrect, that the revision petitioners, after admitting the case
of the respondent that manakavalakonar site is situated on the west of the
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first schedule property, have been attempting to withdraw the said
admission and the same cannot legally be entertained and that the present
application is liable to be dismissed.
6. It is pertinent to note that original suit was filed by the revision
petitioners' father in 2007 and the respondent has filed his written
statement in 2008 and that the suit after full-trial was dismissed on
18.09.2014.
7. It is evident from the records that the revision petitioners'
application for impleadment in I.A.No.562 of 2013 was allowed on
18.12.2013 and the consequential amendment application was allowed on
28.01.2014. Even according to the revision petitioners, they were not
aware of the boundary particulars given to the suit property after their
impleadment, but they came to know that only after the dismissal of the
suit. Though the appeal was filed in January-2015, the present application
came to be filed on 27.10.2015. It is pertinent to note that by virtue of the
amendment in C.P.C. with effect from 01.07.2002, the proviso has been
added to Order 6 Rule 17 and the same reads as follows:
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“Order 6 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.”
8. No doubt, amendment to pleadings can be sought for at any stage
of the suit but subject to the proviso incorporated vide amendments. It is
pertinent to note that since the amendment application is filed in the
appeal, the first thing which is to be seen is as to why the amendment
application has not been filed before the trial Court.
9. The learned counsel appearing for the revision petitioners has
relied on the judgment of the Hon'ble Supreme Court in the case of Sajjan
Kumar Vs. Ram Kishan reported in (2005) 13 SCC 89, wherein, the
landlord has filed a suit for eviction against the tenant and when the suit
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was in the final stage, the plaintiff-landlord has filed an application to
amend the plaint for correcting the description of the premises in the
plaint. The Hon'ble Supreme Court, by observing that the plaintiff ought to
have been diligent in promptly seeking the amendment in the plaint at an
early stage of the suit, but refusing to permit the amendment would create
needless complications at the stage of execution in the event of the
plaintiff succeeding in the suit, allowed the appeal and permitted the
proposed amendment.
10. The learned counsel appearing for the revision petitioners has
also relied on the following decisions of the Hon'ble Supreme Court;
(i) 2006 (5) CTC 609 (FB)
(Hi. Sheet Industries, a partnership firm Vs. Litelon
Limited represented by its Managing Partner and others):
“Code of Civil Procedure, 1908 (5 of 1098) (as amended by
Amendment Act 22 of 2002), Order 6, Rule 17, Proviso to –
Pleadings can be amended even after commencement of
trial – Court has to examine in detail amendment in such
cases and commencement of trial must be understood as
final hearing of Suits namely examination of witness, filing
of documents, addressing of arguments, etc. and Court
should not forget that it has unfettered discretion to allow
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amendment in its judicial discretion if there is no negligence
on part of party claiming amendment.”
(ii) 2023 SAR (Civ) 570
(Ganesh Prasad Vs. Rajeshwar Prasad and others):
“Civil Procedure Code, 1908 – Order VI Rule 17 -
Amendment of Plaint – Inconsistent Plea – Plea in
Alternative – If the pleas sought to be introduced by plaintiff
by way of an amendment is also the plea, which the
defendant has set up in his written statement and such a
plea of the plaintiff is an alternative plea, even though it is
inconsistent with the original plea, since there is no
prejudice caused to the defendant, the Court is not
precluded from allowing the amendment.”
11. The Hon'ble Supreme Court has reiterated the settled legal
position in the above decisions. The Hon'ble Apex Court has specifically
observed that the provisions of the Amendment Act (Act 22 of 2002)
relating to amendment of pleadings shall not apply in respect of any
pleading instituted before the commencement of amended Code (namely
01.07.2002). In the present case, as already pointed out, the suit was
instituted after the amended provision came into force.
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12. Though the suit was pending from 2007 onwards for more than
7 years, the revision petitioners have nowhere whispered as to why the
amendment application has not been filed at that stage by the original
plaintiff or by the revision petitioners, who were impleaded subsequently.
13. It is pertinent to note that the contention that the revision
petitioners were not aware of the boundary particulars cannot be accepted,
as the trial was proceeded after their impleadment and the second revision
petitioner has been examined as witness on their side. It is pertinent to
note that the respondent has raised necessary averments in the written
statement and has taken a specific plea that the description regarding AB
wall in rough plan is not clear and is ambiguous and that the plaintiff has
not properly described the AB compound and others and the plaintiff has
to prove the lie and location of the property. Despite the specific defence,
the revision petitioners have not chosen to take any steps for changing the
boundary. Even at the time of filing the appeal, they have not filed any
amendment application along with appeal memorandum, but subsequently
filed the application.
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14. As rightly contended by the learned appellate Judge, the learned
trial Judge, taking note of the description shown by the parties and the
Commissioner's report and plan filed before the trial Court, has given
findings against the revision petitioners.
15. As already pointed out, the revision petitioners have not
produced any iota of materials before the appellate Court or before this
Court so as to enable the Court to come to a conclusion that inspite of due
diligence, the revision petitioners could not have raised the matter before
the trial Court.
16. Considering the entire facts and circumstances of the case and
also the stage at which the amendment application came to be filed and in
the absence of any valid or acceptable reason for not raising before the
trial Court, the impugned order of the appellate Court dismissing the
amendment application cannot be found fault with. Hence, this Court
concludes that the revision is devoid of merit and the same is liable to be
dismissed.
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17. In the result, this Civil Revision Petition is dismissed and the
impugned order dated 08.02.2018 passed in I.A.No.150 of 2015 in
A.S.No.4 of 2015 stands confirmed. Since the appeal is pending from
2015 onwards, the learned Additional Subordinate Judge, Tirunelveli, is
directed to hear the appeal in A.S.No.4 of 2015 and dispose of the same
within a period of two months from the date of receipt of a copy of this
order. Consequently, connected Miscellaneous Petition is closed. No costs.
05.04.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Additional Subordinate Court,
Tirunelveli.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
and
Dated : 05.04.2024
https://www.mhc.tn.gov.in/judis
