A.K. Balasundaram vs Kruba

K. Venkataraman, J.—The present Civil Revision Petition is directed against the fair and decreetal order of the learned District Munsif-cum-

Judicial Magistrate, Ambattur dated 20/6/2008 made in I.A. No. 1777 of 2007 in O.S. No. 1238 of 1997.

The said suit has been originally filed by the deceased A.K. Balasundaram. After his demise, the Petitioners have been brought on record. They

are the Petitioners herein and the Defendant thereon is the sole Respondent herein.

The said suit was filed against the Respondent for permanent injunction restraining the Respondent herein from putting up any construction either

in the vacant portion or elsewhere in the suit property.

In the said suit, the Petitioners have filed an application to amend the plaint under Order 6 Rule 17 of the Code of Civil Procedure. The said

application was dismissed by the Court below and the present Civil Revision Petition is directed against the said order.

It is the case of the original deceased Plaintiff that an unconditional and irrevocable settlement deed was executed in his favour on 10/12/1982

and 28/8/1986. While so, subsequent to the filing of the suit, the Petitioners came to know about the cancellation of the settlement deed and

execution of the sale deed in favour of the Respondent. The said cancellation is null and void and not binding on the Petitioners and the subsequent

sale is also null and void. Hence, they filed an application for amendment of the pleadings.

The said application was resisted on several grounds. It was resisted by stating that the proposed amendment will change the cause of action.

The suit is pending for more than a decade and the application has been filed to amend the plaint only after trial.

I have heard the learned Senior Counsel appearing for the Petitioners and the learned Senior Counsel appearing for the Respondent.

The suit has been filed by the original Plaintiff before the learned District Munsif at Poonamallee in the year 1991. The then Suit number was

O.S. No. 651 of 1991. Later, the suit has been transferred to the file of the learned District Munsif-cum-Judicial Magistrate, Ambattur and it was

re-numbered as O.S. No. 1238 of 1997. The suit was posted for trial on 8/2/2000. There was no representation on behalf of the Plaintiffs and

hence the suit was dismissed for default. By an order dated 14/11/2000, the suit has been restored to file and posted for trial on 21/12/2000.

However, suit was again dismissed for default for non-appearance of the Plaintiff. Later, the order of dismissal was set aside and the suit was

restored on file, by an order dated 16/8/2005. Later, the suit was posted for trial on 23/9/2005 and in view of the non-appearance of the Plaintiff,

the matter was posted on 7/3/2006. On 7/3/2006 also, there was no representation on the side of the Plaintiffs and hence for the third time, the suit

was dismissed for default. Again, an application was filed to restore the suit and by an order dated 18/8/2006, the suit was restored to file and the

same was posted on 1/9/2006.

Thereafter, at the request of the learned Counsels appearing for both the Plaintiffs and the Defendant, the matter was posted before Lok Adalat

and the same was pending from 5/9/2006 to 19/7/2007 for nearly an year. Since, there was no settlement before the Lok Adalat, the matter has

been again taken up by the trial Court on 14/8/2007. While so, the present application for amendment was filed by the Petitioners on 17/9/2007.

The above facts will clearly disclose that the Petitioners, before them the original Plaintiff were dragging on the matter on one pretext or the

other.

Apart from the above fact, it is the case of the Petitioners that after the suit was filed, the settlement in favour of the deceased first Plaintiff was

cancelled and the sale deed was executed in favour of the Respondent and hence it has necessitated the Petitioners to file the application for

amendment to incorporate the said fact. However, in the affidavit filed in support of the application, it is not stated when such fact came to the

knowledge of the Petitioners. The affidavit is very silent over the same. In such circumstances, it has to be seen whether the application filed by the

Petitioners for amendment of the pleading has to be entertained or not.

The prayer that has been sought for by the Petitioners by way of an amendment is to set aside the cancellation of the settlement deed which

was made in favour of the deceased first Plaintiff and also to set aside the sale deed executed in favour of the Respondent as null and void. To set

aside the deed or for declaration that the said deeds are not valid and binding, the Petitioners ought to have stated when they came to know of it.

As stated already, the affidavit is silent over the same. In such circumstances, it has to be seen whether the cancellation of the settlement deed

dated 9/4/1991 and the sale deed in favour of the Respondent herein on 16/4/1991 could be set aside on an application filed by the Petitioners in

August 2007. The claim now made is admittedly hopelessly barred by limitation. The suit admittedly was filed originally before the learned District

Munsif, Poonamallee in the year 1991.

If the application for amendment is allowed, it will relate back to the date of filing of the suit. In such event, the Respondent will be adversely

affected, if the application is allowed.

Further, it has to be seen that Rule 17 of Order 6 has been amended. The new Rule, after amendment by Act 22 of 2002, is reproduced

hereunder:

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.

As per the said amendment, the Court may at any stage of the proceeding, on request by either party, amend the pleading, but however, the

proviso contemplates that no application for amendment could be entertained after the trial has commenced, unless the Court comes to the

conclusion that in spite of due diligence, the party could not raise the matter before the commencement of trial.

In the present case on hand, it is not the case of the Petitioners that in spite of due diligence, they were not aware about the cancellation of the

settlement deed made in favour of the deceased first Plaintiff and the sale deed executed in favour of the Respondent herein. In such circumstances,

I am of the considered view that the application filed by the Petitioners for amendment of the pleadings cannot be permitted.

The learned Senior Counsel appearing for the Respondent relied on the decision reported in 2007 (14) SCC 120 Shiv Gopal Sah @ Shiv

Gopal Sahu v. Sita Ram Saraugi and Ors., wherein the Honourable Apex Court has held as follows:

We have gone through the amendment application carefully where we do not find any explanation whatsoever for this towering delay. We

would expect some explanation, atleast regarding the delay since the delay was very substantial. The whole amendment application, when carefully

scanned, does not show any explanation whatsoever. This negligent complacency on the part of the Plaintiffs would not permit them to amend the

plaint, more particularly when the claim has, apparently, become barred by time.

It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time.

However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the Plaintiffs and

a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that

amendment an apparently time barred claim is being introduced for the first time, there would have to be some explanation and secondly, the

Plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights

created in the Defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the Plaintiffs anywhere more

particularly in the amendment application.

In an another decision in Rajkumar Gurawara (Dead) Through L.Rs. v. S.K. Sarwagi and Company Private Limited and Anr. reported in

(2008) 14 SCC 364, the Honourable Apex Court has held as follows:

In order to consider whether the Appellant/Plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17

Code of CPC which reads as under:

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.

The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be

necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule

with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no

application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could

not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement

of the trial.

To put it clear, Order VI Rule 17 Code of CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any

stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between

the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the

commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have

an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after

completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to

satisfy the conditions prescribed in the proviso.

Further it is relevant to point out that in the original suit, the Plaintiff prayed for declaration of his exclusive right to do mining operations and to

use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and

damages from the second Defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely,

(i) when the nature of it is changed by permitting amendment;

(ii) when the amendment would result introducing new cause of action and intends to prejudice the other party;

(iii) when allowing amendment application defeats the law of limitation. The Plaintiff not only failed to satisfy the conditions prescribed in proviso to

Order VI Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and

rightly set aside the order dated 10.3.2004 of the Additional District Judge.

However, the learned senior Counsel appearing for the Petitioners relied on a decision in B.K.N. Narayana Pillai Vs. P. Pillai and Another, .

By relying on the said judgment, the learned Senior Counsel appearing for the Petitioners contended that, it has been held by the learned Apex

Court in the said decision that, the amendment should be permitted where it would result in solution to real controversy between the parties,

without altering original cause of action.

But, however, in the case on hand, as stated already, the Petitioners have not pleaded, when they came to know of the cancellation of the

settlement deed made in favour of the deceased first Plaintiff and the sale deed executed in favour of the Respondent. That apart, as stated already,

the application for amendment has been filed after the trial was started.

Yet another decision that was relied on by the learned Senior Counsel appearing for the Petitioners is reported in Sampath Kumar Vs.

Ayyakannu and Another, . By relying on the said decision, the learned Senior counsel appearing for the Petitioners contended that though normally

amendment after the date of execution relates back to the year of the suit, the Court can direct otherwise. However, in the case on hand, as stated

already, the proposed amendment changes the entire cause of action and it is barred by Limitation and the said judgment may not be applicable to

the present case on hand.

Yet another decision that was cited by the learned Counsel appearing for the Petitioners is the Full Bench decision of this Court reported in

Commissioner of Income Tax Vs. Andhra Pradesh State Road Transport Corporation, . Even in the said decision, it has been held that

amendment can be allowed if it does not affect cause of action; if it does not introduced new cause of action, and if it would not cause serious

prejudice to opposite party. Though in the said decision, it has been held that the amendment even if barred by limitation, cannot be a ground for

rejection for amendment, in the case on hand, as discussed earlier, the amendment sought for by the Petitioners is not only barred by limitation but

also the Petitioners have not stated when they came to know about the cancellation of the settlement deed executed in favour of the deceased first

Plaintiff and when the sale deed was executed in favour of the Respondent. That apart, the facts narrated above would disclose that the matter is

being dragged on for several years by the Petitioners and before them, the deceased/first Plaintiff endlessly from 1991. Hence, the said judgment

may not be of any use to the Petitioners.

Considering the overall circumstances of the case, I am of the considered view that the Court below has rightly rejected the application filed by

the Petitioners for amendment of the pleadings.

In fine, the Civil Revision petition stands dismissed. No costs.