C. Devadhasan (died) and Others vs N. Yesudhas

The Honourable Mr. Justice P.P.S. Janarthana Raja

This Civil Revision Petition has been filed against the order passed by the learned Additional District Munsif Court, Padmanabhapuram dated 10.01.2009 in I.A. No. 270 of 2008 in O. S. No. 262 of 2004.

The first Petitioner herein (deceased) was the Defendant and the Respondent herein is the Plaintiff in the suit. The Respondent/ plaintiff filed a suit in O.S. No. 262 of 2004 on the file of the Additional District Munsif Court, Padmanabhapuram for the following reliefs:

a) Plaintiff may be given a decree declaring Plaintiff''s title over ''C'' Schedule property;

b) Plaintiff may be given a decree of demarcation of ''A'' Sc hedule property;

c) Plaintiff may be given a decree for mandatory injunction to remove the obstruction made by the Defendant over C and D schedule property at the cost of the Defendant within reasonable time fixed by the Court and if he failed to do so, the same may be removed through Court and the cost of the same may be recovered from the Defendant;

d) Plaintiff may be given a decree declaring ''D'' schedule property as a pathway.

e) Plaintiff may be given a decree to realise the costs of the suit and

f) Such other relief which the Court may deem fit and proper in the nature and circumstances of the case.

The first Petitioner/defendant also filed written statement denying all the allegations made in the plaint and submitted that the suit is devoid of merits and hence the same should be dismissed. Subsequently, the Respondent/plaintiff filed I.A. No. 270 of 2008 for amendment of the plaint. The first Petitioner/defendant also filed counter and opposed the same. After hearing the arguments advanced on both the sides, the Trial Court allowed the I.A. for amendment of the plaint. Aggrieved by the same, the present Civil Revision Petition has been filed. The Petitioners 2 to 6 were brought on record as legal heirs of the deceased/first Petitioner, before this Court.

Learned Counsel for the Petitioners vehemently contended that the impugned order passed by the Trial Court is wrong, illegal and without any basis and justification. Further he submitted that the proposed amendment will certainly change the nature of the suit and that the proposed pleading is inconsistent with the original pleading. He also submitted that the Trial Court ought to have dismissed the I.A. on the ground that the proposed amendment will change the character of the suit. Further he submitted that the amendment application has been filed after the commencement of trial, and relied on the following judgments in support of his proposition:

1)Rajamani v. Kumarasamy 2010 (1) MWN (Civil) 393 and

2) Vidyabai and Others Vs. Padmalatha and Another, .

Therefore, the Learned Counsel for the Petitioners has submitted that the impugned order passed by the Trial Court is not in accordance with law and hence the same should be set aside.

Learned Counsel for the Respondent/plaintiff has submitted that, while drafting the plaint, some mistakes were crept in and they are typographical errors and omissions and the same were found out only when the Plaintiff studied the case to give evidence before the Trial Court. He further submitted that there is a mistake in the cause-title also. He further stated that the amendment will not cause any prejudice to the Petitioners herein and it will not change the nature of the suit; that typographical errors and omissions were committed by the earlier Advocate and these mistakes were committed by oversight. He relied on the following judgments in support of his contention:

North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) by Lrs., ;

Puran Ram Vs. Bhaguram and Another, ;

Usha Devi Vs. Rijwan Ahamd and Others, ;

State of Madhya Pradesh v. Union of India and Anr. CDJ 2011 SC 783;

State of A.P. and Ors. v. Pioneer Builders, A.P. (2006) 12 SCC 119 and

Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, .

Hence, according to the Learned Counsel for the Respondent / Plaintiffthe impugned order passed by the Trial Court is in accordance with lawand hence the same should be confirmed.

Heard the counsel and perused the materials available on record. The amendments sought for in the plaint are as follows:

In the long cause title of the plaint in the name of Plaintiff, the last letters "on" be deleted.

In line two of para-one of the plaint, "9" be deleted and in its place "11" be inserted.

In para-2 of the plaint in the last but one sentence the number "9" be deleted and in its place "11" be inserted.

The eastern property of plaint A-Schedule stated as "Chellam house property" be deleted and in its place the "Defendant''s property" be inserted.

The western boundary description for plaint B-Schedule property stated as "Pathway" be deleted and in its place "The property of the Plaintiff" be inserted.

The extent stated as "5" links for the Plaint C-Schedule property be deleted, and in its place "645 squire links" be inserted.

The eastern boundary description for the plaint C-Schedule as "Chellam Property" be deleted and in its place "Defendant''s property" be inserted.

The extent of plaint D-Scheduled property stated as "5 links" be deleted and in its place "445 squire links" be inserted.

After C-relief "C1 relief" be inserted and states as follows:

The Plaint C-Schedule property be recovered to the Plaint from the Defendant through Court.

After para-8 of the Plaint, Para 8(1) be inserted as follows:

The C1-relief of recovery of possession over the Plaint Schedule Property is valued as Rs. Two thousand and a further Court Fee of Rs. 150.50 ps. is paid under Sections 25(b) of abovesaid Court Fees Act.

The Court Fee column in the docket of the plaint be corrected accordingly.

From a reading of the above, it is clear that the mistakes found were typographical errors and omissions which were committed while drafting the earlier plaint, and the schedule mentioned properties not described correctly in the earlier plaint. The proposed amendment is nothing but to correct the omissions and errors and it is only in respect of the description and extent of the properties mentioned in the schedule. Therefore, there is no dispute that the amendment does not change the character of the suit and also, the same is necessary for the purpose of determining the controversy between the parties. Further it is seen that the Respondent/plaintiff also explained that the earlier Advocate who prepared the plaint had committed the mistake by oversight, and the subsequent Advocate engaged found out the mistakes crept in due to oversight. Therefore, the Respondent/plaintiff is correct in filing the application for amendment of the plaint.

(i) In the case of State of Madhya Pradesh v. Union of India and Anr. (cited supra), the Apex Court has held that the amendment to plaint can be made at any stage of the proceedings. In paragraph-8 of the judgment, it has been held as under:

In order to consider the claim of the Plaintiff and the opposition of the Defendants, it is desirable to refer the relevant provisions. Order VI Rule 17 of the Code of Civil Procedure, 1908 (in short `the Code'') enables the parties to make amendment of the plaint 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 above provision deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations.

From a reading of the above, it is clear that amendment to the plaint can be made at any stage of the proceedings and also, the proposed amendment is necessary for the purpose of determining the real controversy between the parties.

(ii) In the case of Puran Ram v. Bhaguram and Another, cited supra, the Apex Court has considered the scope of amendment of plaints and held in paragraph-20 of the judgment as under:

It is well settled by a catena of decisions of this Court that allowing and rejecting an application for amendment of a plaint is really the discretion of the court and amendment of the plaint also should not be refused on technical grounds. In this connection reliance can be placed on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply. In para 8 of the said decision this Court observed that: (SCC p. 873)

Since the name in which the action was instituted was merely a misdescription of the original Plaintiff, no question of limitation arises: the plaint must be deemed on amendment to have been instituted in the name of the real Plaintiff, on the date on which it was originally instituted.

A reading of this observation would amply clear the position that no question of limitation shall arise when misdescription of the name of the original Plaintiff or misdescription of the suit property arose in a particular case. Apart from that in the present case, although, the relief claimed before as well as after the amendment remained the same i.e. a decree for specific performance of the contract for sale, even then, in the facts and circumstances of the present case, as noted hereinearlier, we do not find why the High Court should have interfered with the discretion used by the trial court in allowing the application for amendment of the plaint.

(iii) In the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons, cited supra, the Apex Court has considered the scope of amendment and formulated certain guidelines, i.e., what are all the facts that have to be taken into consideration in dealing with the application for amendment and held in paragraphs-63 and 64 of the judgment as under:

On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.

The decision on an application made under Order 6 Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.

From a reading of the above, it is clear that the Courts have ample powers to allow the application for amendment of the plaint.

(iv) In the case of State of A.P. and Ors. v. Pioneer Builders, A.P. (cited supra), the Apex Court has considered the scope of amendment of plaint and held that the amendment can be made at any stage of the proceedings. In paragraph-21 of the judgment, it has bee n held as under:

Principles governing amendment of pleadings are well settled. Order 6 Rule 17 CPC deals with the amendment of pleadings and provides that the court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hyper technical approach, particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings. (See L.J. Leach & Company Ltd. v. Jar dine Skinner & Company, Ganga Bai v. Vijay Kumar and B.K. Narayana Pillai v. Parameswaran Pillai.) Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: (IA pp. 216-17)

All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit.

(v) In the case of North Eastern Railway Administration v. Bhagwan Das (cited supra), the Apex Court has taken a view that amendment can be made at any time and held in paragraph-16 of the judgment as under:

Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions 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. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar.)

After considering the principles enunciated in the above judgments, it is crystal clear that the Courts have powers to give direction to amend the plaint and also the amendment can be preferred at any stage of the proceedings. Also, the amendment should be a bona fide one and it should determine the real issue in controversy between the parties, provided the amendment does not change the character of the suit. In the present case, the Trial Court has considered all the facts and circumstances of the case and held that the amendment will not change the character of the suit and it is only a mistake committed earlier and the same can be rectified by way of amendment.

Learned Counsel for the Petitioners relied on the decision of the Apex Court in the case of Vidyabai v. Padmalatha (cited supra). On the facts, it was held that the Courts must see that the amendment is necessary to decide the real dispute between the parties and unless and until the condition is fulfilled, the amendment has to be allowed. Further it is stated in the above judgment that proviso appended to Order 6 Rule 17 of the Code restricts the power of the Court and it puts and embargo on exercise of its jurisdiction. In the above case, a factual finding has been given by the Apex Court that the nature of the statutory precondition was not considered. Therefore, the above Apex Court judgment is not helpful to the Petitioners herein. Learned Counsel for the Petitioners also relied on a judgment given by me in the case of Rajamani v. Kumara Amy (cited supra). In that case, a specific finding has been given that the Plaintiff had not stated any reason in the amendment petition for belated filing. Therefore, the facts in the above judgment are distinct and different from the facts involved in the present case. Therefore the said judgment is also not helpful to the Petitioners herein. Further it is pertinent to note that in the present case, the Trial Court has considered the reasons given by the Plaintiff for belated filing and also the same is based on valid materials and evidence. Also, the Trial Court has considered all the facts and circumstances of the case and also the scope of the amendment of plaint and correctly came to the conclusion by allowing the amendment application.

Under these circumstances, after considering the principles enunciated in the Apex Court judgments relied on by the Learned Counsel for the Respondent and also the provision of Article 227 of the Constitution of India, this Court is of the considered view that the impugned order passed by the Trial Court is in conformity with law and it is not a perverse order and it does not requires any interference by this Court. Hence, the impugned order passed by the learned Additional District Munsif Court, Padmanabhapuram dated 10.01.2009 in I.A. No. 270 of 2008 in O.S. No. 262 of 2004, is confirmed and the Civil Revision Petition is dismissed. Consequently, M.P.(MD) No. 1 of 2009 is closed. No costs.

However, the Learned Counsel appearing for both the parties have requested that a direction may be issued to the Trial Court to take up the suit itself and dispose of the same. After considering the submission made on either side, I direct the Trial Court to take up the suit in O.S. No. 262 of 2004 and after giving opportunity to both the parties to substantiate their case, dispose of the same in accordance with law as expeditiously as possible.