Angamuthu vs Saroja and Others

S. Palanivelu, J.—The Petitioner is the 1st Defendant in O.S. No. 461 of 2004 on the file of the II Additional District Munsif Court,

Bhavani. This is a Suit for partition filed by the Respondents 1 to 3. The trial was taken up. The Plaintiffs'' evidence was over and the 1st

Defendant was also examined before the court. At that time, the Plaintiffs filed the petition in I.A. No. 62 of 2009 under Order 6 Rule 17 of CPC

for amending the plaint to include a relief of declaration that the Gift Settlement Deed dated 1.2.1997 executed by the deceased Chinnasamy is not

binding upon the Plaintiffs and also certain pleadings with regard to jurisdiction and court fee.

In the affidavit, the Plaintiffs have alleged that the 1st Respondent filed an additional Written Statement, in which he has pleaded that his father

Chinnasamy had executed a Gift Settlement Deed dated 1.2.1996 in his favor, that the said Chinnasamy was not commanding good health and

was bedridden at that time and the settlement deed was obtained from him by misrepresentation and unlawfully and hence the relief of declaration

that the Deed is not binding upon the Plaintiffs is to be incorporated in the plaint and so the amendment petition may be allowed.

In the counter filed by the 1st Respondent/1st Defendant, it is stated that after this Respondent was examined before the court in part, the

amendment petition came to be filed. This Defendant has filed written statement and additional written statement on 4.12.2002 and 7.9.2004

respectively. In the additional written statement, a defense has been raised to the effect that the deceased Chinnasamy on 1.2.1996 executed a Gift

Settlement Deed in favor of the 1st Defendant in the presence of the Plaintiffs. On 7.9.2004 itself, the Plaintiffs were put on notice with regard to

the above said Gift Settlement Deed, but only on 15.10.2009, after a lapse of five years, the petition has been filed. The Gift Settlement Deed

came to existence on 1.2.1996, which was not executed on 1.2.1997 as mentioned by the Plaintiffs. The other particulars with regard to market

value of the property are also incorrect. There is no averment with regard to the proper payment of court fee. Even in the plaint, the Plaintiffs have

not stated that the Settlement Deed does not bind them. Hence, the petition may be dismissed with costs.

In the counter filed by the 7th Defendant, adopted by the 3rd Defendant and in the counter filed by the 14th Defendant, identical allegations, as

contained in the counter filed by the 1st Defendant are available.

After hearing both parties, the learned II Additional District Munsiff has allowed the application by observing that to enable the Plaintiffs to

establish their case and to afford opportunity to them to bring the real factors before the Court the petition has to be allowed and even in a Second

Appeal, an amendment application may be allowed. It is the order under challenge before this Court.

Prior to the Act 22 of 2002 in CPC Code, amendment to the pleadings were liberally allowed. But Act 22 of 2002 puts a restriction on the

powers of the Court to entertain an amendment petition. When petition for amendment is filed after the trial is commenced in the Suit, the party

who seeks to amend shall show before the Court that he could not make the amendment petition earlier to the commencement of the trial, in spite

of his due diligence. The present provision in Order 6 Rule 17 of the CPC, is as follows:

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 or 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 conclusion that in spite of

due diligence, the party could not have raised the matter before the commencement of the trial.

The learned Counsel for the Petitioner Mr. N. Manokaran would submit that unless the Plaintiffs establish that they could not file the amendment

application earlier to the commencement of the trial in spite of their due diligence, the petition cannot be allowed. It is his further contention that the

relief, having been prayed in the suit after five years from the date of their knowledge as to the document, is barred by time and such amendment

could not be entertained.

In support of his contention, the learned Counsel for the Petitioner placed reliance upon a Full Bench decision of the Supreme Court in T.N.

Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, , in which the learned Judge has observed as follows:

The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., it was held that the

Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the

application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not

affect the power of the court to order it.

It is further contention of the learned Counsel for the Petitioner that the relief for declaration that the Gift Settlement Deed is not binding upon the

Plaintiffs, should have been prayed for within three years from the date of knowledge, that the Plaintiffs were made known to the fact as early as on

7.9.2004 and the present petition for amendment has been filed on 15.10.2009 fairly after five years and hence the claim is time barred. This Court

finds considerable force in his arguments.

At the outset, following the decisions rendered by the Supreme Court, it has to be observed that the claim of the Plaintiffs is barred by time,

since they had knowledge about the execution of the Gift Settlement Deed as early as 7.9.2004 itself and they have approached the Court only on

15.10.2009.

He also garnered his support from another decision of the Supreme Court in Vidyabai and Others Vs. Padmalatha and Another, , in which

their Lordships have dealt with the import of amended provisions in Order 6 Rule 17 of Code of Civil Procedure. The relevant portions are as

follows:

We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. this Court noticed the decision of this Court in Kailash to

hold: (Ajendraprasadji case, SCC p.13, paras 35-36)

By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not

permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.

Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f 1.7.2002. It had a provision

permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar

introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the

conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which

falls for consideration.

This Court also noticed Salem Advocate Bar Assn. v. Union of India to hold: (Ajendraprasadji case, SCC pp. 14-15 paras 41-43)

We have carefully considered the submissions made by the respective Senior counsel appearing for the respective parties. We have also

carefully perused the pleadings, annexure, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit

filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the court has been elaborately spelt out which in

our opinion, would show that the Appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his

pleadings.

It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act 2002.

Under the proviso, no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter

could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading

shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission

since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation

and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much

controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the CPC (Amendment) Act, 2002, provision

has been restored by recognizing the power of the court to grant amendment, however, with certain limitation which is contained in the new proiso

added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be

raised by way of amendment by the Appellants were well within their knowledge on their court case, and manifests the absence of due diligence on

the part of the Appellants disentitling them to relief.

The ratio in Kailsh was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of

evidence.

An identical view has been expressed by the Supreme Court in Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., .

Mr. T. Murugamanickam, learned Counsel appearing for the Respondents/Plaintiffs would cite a decision of the Supreme Court in Revajeetu

Builders and Developers Vs. Narayanaswamy and Sons and Others, , in which the Apex Court has held as follows:

Whether amendment is necessary to decide real controversy:

The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the

determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which

should govern the courts'' discretion in grant or refusal of the amendment. No prejudice or injustice to other party:

The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be

caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants

actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of pleadings but court''s powers must be

exercised judiciously and with great care.

It is the contention of the learned Counsel for the Respondents that when there is no material to show that by allowing the amendment

application, the Defendants will be prejudiced, then there is no legal impediment for the Court to allow the amendment petition and the proposed

amendment will not alter the character and nature of the suit, so also the cause of action. He also brought to the notice of this Court a decision of

this Court in A.A. Ganga and Anr. v. A.R. Usha and Ors. reported in (2010) 6 MLJ 537, in which the learned Judge has observed that it is the

primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties and only if such a

condition is fulfilled, the amendment is to be allowed as held by the Supreme Court in Vidyabai and Others Vs. Padmalatha and Another, . In view

of the earlier decision of this Court, Order 6, Rule 17 of CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda

Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, which still holds good, it was held that all amendments ought to be allowed following

the two conditions:

i) of not working injustice to the other side.

ii) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only

where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an

injury which could not be compensated in costs.

Following the principles laid down by the Supreme Court and in view of the legal restriction placed on the court to entertain the amendment

application, it has to be held that the amendment application cannot be allowed. The affidavit is silent as to the exercise of due diligence by the

Plaintiffs to bring the amendment into the suit anterior to the commencement of the trial. I am of the considered opinion that as per the rule position,

the Court has to record its reasons for allowing the amendment application, that in spite of exercise of due diligence by the party, who seeks

amendment after the starting of the trial, he could not prefer amendment petition earlier.

In the absence of such material, the amendment petition could not be allowed. To put it in nutshell, the Respondents 1 to 3 / Plaintiffs have

miserably failed to show that they were unable to file the amendment application before commencing the trial in spite of their exercising due

diligence and hence they have to be non-suited for the relief claimed in the amendment application. To add this, their claim is also barred by time.

For the aforesaid reasons, this Court does not put seal of approval on the order challenged before this Court, which is liable to be set aside

and is accordingly set aside.

In the result, the Civil Revision Petition is allowed. I.A. No. 62 of 2009 in O.S. No. 461 of 2004 on the file of the trial court is dismissed. No

costs. Consequently, the connected Miscellaneous Petition is closed.