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Judgment
P. Jyothimani, J.—The plaintiffs are the revision petitioners and the revision is filed under Article 227 of the Constitution of India. The
revision arises from the order passed by the Trial Court in I.A.No.64 of 2006 in O.S.No.37 of 2005 filed by the plaintiffs seeking for an
amendment to the plaint under order 6 Rule 17 r/w 151 of the Code of Civil Procedure, which was dismissed by the order dated 13.02.2006.
The first defendant Manickam @ Sellapan is the husband of the first plaintiff Chinnammal. The second defendant in the suit is the father-in-law
of the first plaintiff and father of the first defendant and the third defendant is the brother of the first defendant. There was a partition in the family of
Periyanna gounder, namely, the second defendant on 12.10.1985 and there was no division by metes and bounds. The further case of the plaintiff
is that the first defendant was married to the first plaintiff and they had no issues for 2 years and when the first plaintiff was conceived afterwards, at
the advise of astrologers, the first defendant has compelled the first plaintiff to make abortion on certain surmises and it was in those circumstances
the first plaintiff was compelled to leave away from the first defendant along with her son the second plaintiff who was born subsequently.
According to the plaintiff, there was the second partition in the family of Periyanna gounder on 29.05.2001 by which there was a division by
metes and bounds and as per the said partition certain portions have been earmarked for the purpose of common use by way of easement. The
plaintiffs have filed the suit for partition and claiming 1/2 share to the second plaintiff in respect of item 1 to 3 of the suit properties and 1/6th share
in respect of item 4 of the suit property, apart from the maintenance claimed against the first defendant.
The defendants have also filed a written statement. Thereafter, the plaintiffs filed I.A.No.64 of 2006 praying for an amendment of the plaint in
respect of the discrepancy of the property showing the common passage. In the affidavit filed in support of the said petition the plaintiffs admit that
even in the partition deed dated 29.05.2001 such a common passage has been given and by mistake that was not mentioned in the plaint, even
though a reference has been made about the partition deed dated 29.05.2001 in the plaint.
It is also the case of the plaintiffs that by omission of such common passage, ultimately even if the second plaintiff gets the partition of his
property, he will not be in position to enjoy the same, since he will be prevented even from entering into the property. In those circumstances, the
petition came to be filed.
The defendants who are the respondents herein have filed the counter affidavit stating that by the amendment the plaintiffs are seeking to
introduce a new case. It is the further case of the defendants that without even knowing the particulars about the property, the plaintiffs have filed
the suit for partition. After hearing the arguments of both the sides, the Trial Court has dismissed the said application as against which the plaintiffs
have filed the present revision petition under Article 227 of the Constitution of India.
The learned Counsel for the petitioners would submit that the purpose of order 6 Rule 17 r/w 151 of the CPC for amendment is to have an
effective final disposal in respect of the dispute and therefore, the order of the learned Trial Judge in dismissing the application for amendment will
only prevent the effective disposal of the suit in a proper manner. According to him even though in the plaint there is a mention about the second
partition deed dated 29.05.2001 in Periyanna gounders family and it is true that the said partition deed contained clauses by giving easement rights
to the parties, especially in favour of the first defendant in the suit from whom the second plaintiff is making a claim being his son and it was by
mistake the reference about the said easement right of common passage was omitted to be mentioned and by including that by way of amendment,
it cannot be said that a new case is formulated by the plaintiff.
It is also his contention that the suit itself is of the year 2005 and in February 2006 itself the present application for amendment was filed and
therefore, it cannot be said to drag on the proceedings. In any event according to the learned Counsel for the petitioners, by allowing the
amendment no prejudice was going to be caused to the defendants at all. The learned Counsel also would rely upon the judgment of the Hon''ble
Apex reported in 2002 (4) CTC 189 and judgement of this Court in Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam Vs.
Udumalpet Samayapuram Ayira Vaisya Sangam, and would contend that the learned Trial Judge has wrongly come to a conclusion as if the
application has been filed belatedly and there is a lack of bonafide.
In the revision petition the respondents have been served and in spite of it no one appeared and the names of the respondents were printed in
the cause list.
I have heard the learned Counsel for the petitioners and also perused the entire records in detail including the pleadings and the order of the
learned Trial Judge. A reference to the plaint shows that in paragraph 9 of the said plaint, the plaintiffs have specifically stated about the subsequent
partition in the family of Periyanna gounder dated 29.05.2001. Even though right has been claimed based on the said partition deed under which
according to the plaintiffs, a division has been effected by metes and bounds by which the first defendant gets his right from whom the second
plaintiff make a claim in respect of the all the items of properties and with a specific plea in the plaint that the first defendant was allotted B
Schedule property into the partition deed dated 29.05.2001, while narrating in the description of the properties in each and every one of the items
of the properties, there is no mention about the common passage or easement right. A reference about the said partition deed, which is relied upon
by the plaintiffs dated 29.05.2001 shows that itself is sufficient for the purpose of suit for partition, but what is sought to be introduced now by way
of amendment is only in respect of the common passages, which are stated to have been earmarked under the said partition deed dated
29.05.2001 and therefore, on the face of it, there is absolutely no difficulty to come to the conclusion that by introducing the amendment by
including the common passages as per the partition deed dated 29.05.2001, it can never be said that the plaintiffs are seeking to make out a new
case other than what was pleaded originally.
The learned Trial Judge however has taken up the issue of delay in filing such a petition for amendment. A reference to the order passed by the
learned Trial Judge would show that the amendment petition was filed without assigning the reason for the delay and therefore, the Trial Court
found that it is only with the intention of drag on the proceedings, the plaintiffs are filing the present petition for amendment. It is also found as per
the order of the learned Trial Judge that the plaintiffs have filed the suit on 04.02.2005 and the suit was posted on 06.02.2006 and after the suit
was taken up for trial, the present application for amendment was filed and therefore, the delay is not bonafide. It is for that purpose, the Trial
Court has relied upon the judgement of this Court reported in 2005 (4) MLJ 333 as narrated by the learned Trial Judge himself. That was a case
wherein the revision petitioners sought to include more properties in the suit schedule and there has been a delay and therefore, this Court has
come to a conclusion that there was no bonafide in the petition.
The learned Trial Judge has also relied upon another judgement of this Court reported in (2005) 4 MLJ 278 and has come to a conclusion that
amendment of pleading is not permissible after commencement of trial and at the stage of the pronouncing of the judgement.
As correctly pointed out by the learned Counsel for the petitioners, the Hon''ble Apex Court in the judgement rendered in Rajesh Kumar
Aggarwal and Others Vs. K.K. Modi and Others, while dealing with an amendment petition filed under Order 6 Rule 17 of the CPC has held that
the real factor which should be considered for allowing the amendment is for determining the real question in controversy between the parties,
provided such amendment does not cause injustice or prejudice to the other side. Therefore, the Hon''ble Apex Court has held that a duty is cast
on the Trial Court to decide whether such amendment is necessary to decide the real dispute between the parties. The Hon''ble Apex Court has
considered in detail the two portions of Order 6 Rule 17 of the CPC holding that in respect of the first portion it is discretionary for the court since
the term ""may"" is used and in respect of the second portion it is mandatory or imperative in nature since the term ""shall"" is used and that is for the
purpose of determining the real questions in controversy between the parties.
After analyzing the purport of the Order 6 Rule 17 of the of the CPC which runs 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, 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 Hon''ble Supreme Court in the categoric term laid down the law as follows:
The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments
that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the
other side.
Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading.
The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real
question in controversy between the parties.
In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the
basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible
for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated
in the pending suit.
As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an
amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be
refused. On the contrary, the learned judges of the High Court without deciding whether such an amendment is necessary have expressed certain
opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in
order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of
decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should
be exercised in the larger interest of doing full and complete justice to the parties before the court.
Thus the Hon''ble Apex Court has categorically laid down the law that the cardinal principle of amendment is essentially a rule of justice, equity
and it should be exercised in the larger interest of giving full and complete justice between the parties before the court. That was the view taken by
the Hon''ble Apex Court even before the said judgement. That was in B.K.N. Narayana Pillai Vs. P. Pillai and Another, , the Hon''ble Apex Court
has held about the concept of amendment on the basis of the concept of justice and to avoid multiplicity of litigation in the following term:
The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as
may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice on the basis
of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right under all
circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach
should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be
permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for
multiplicity of litigation.
In yet another judgement, the Hon''ble Supreme Court in Punjab National Bank Vs. Indian Bank and Another, while dealing with the duties
and powers of the court under Order 6 Rule 17 of the Code of Civil Procedure, held that that if the amendments sought merely for clarifying the
preexisting averments in the plaint, the same has to be allowed except when it is sought to make a new addition and for that purpose the law was
laid down that it is the duty of the court to arrive at a conclusion by reading the entire plaint as a whole. After considering the large number of case
laws on the issue the Hon''ble Apex Court has held in paragraph 15, which runs as follows:
A matter already contained in the original pleading can always be clarified and such an amendment should ordinarily be allowed and in such a case
the question of bar of limitation would not be attracted.
Ultimately, the position has been clearly explained by the Hon''ble Apex court in paragraph 17 as follows:
The position that emerges from the decisions referred to earlier is that an amendment would generally not be disallowed except where a time-
barred claim is sought to be introduced, there too it would be one of the factors for consideration or where it changes the nature of the suit itself or
it is mala fide or the other party cannot be placed in the same position had the plaint been originally filed correctly, that is to say, the other side has
lost right of a vlid defence by subsequent amendment. We find that no such element is present in the case in hand so as to disallow the amendment
in the plaint. No undue advantage is sought to be taken as the claim in terms of dollars is mentioned in the plaint and the relief clause and the
defendants are not to be taken by surprise. The amendment only clears the confusion, if any, as to the terms in which relief is sought. It does not
revive a time-barred and dead claim, nor changes the nature of the suit. In the facts and circumstances, it cannot be said to be mala fide either.
Narrating all the above said case laws M. Karpagavinayagam, J. (as he then was) in the case Thiru Alankadu Immudi Ahora Dharma
Sivachariar Aiyra Vaisya Madam, Nerinchipettai, Bhavani Taluk, Erode District v. Udumalpet Samayapuram Ariya Vaisya Sangam, rep. by its
President No. 5, Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam Vs. Udumalpet Samayapuram Ayira Vaisya Sangam,
has laid down 12 guidelines for the courts to deal with the amendment application under Order 6 Rule 17, which are as follows:
(1) The general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case
or cause of action is barred.
(2) It is well recognized that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts
to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of
limitation.
(3) The object of Courts and rules of procedures is to decide the rights of the parties and not to punish them for their mistakes. Further, a party is
strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already
in the pleading sought to be amended.
(4) Even though the amendment sought to be made is subject of law of limitation, if the cause of action is not going to be changed, it is open to the
affected party to take necessary steps for amendment of the plaint. No doubt, no amendment will be allowed to introduce a new set of ideas to the
prejudice of any right acquired by any party of lapse of time.
(5) For merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced that the merits of the
amended pleas have got to be adjudicated upon after allowing the opposite side to put-forth additional pleadings in answer of the same and that
certainly the additional pleadings may take in also the plea of bar of limitation.
(6) By allowing the amendment, no injury or injustice is caused to the other side. No jurisdictional error is also involved in this case because of the
amendment being ordered. The amendment application should be allowed, since it is not going to change the nature of the plea nor does it affect
the rights of the defendants. The defendants are entitled to put forward all their contentions even after the amendment is allowed.
(7) The question of limitation should not have been decided by the Court below at present, since it is a question to be decided on merits with oral
and documentary evidence. At present, we are concerned with the amendment application, which is governed only under Order 6, Rule 17,
C.P.C. The amendment application should be allowed, if it is not going to change the nature of suit nor does it affect the rights of the defendants.
(8) The basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought for by the
plaintiff. In the opinion of the trial Court, it is open to the plaintiff to file a fresh suit and that is one of the reasons, which has prevailed with the trial
Court. We fail to understand, if it is permissible for the plaintiff to file an independent suit, why the same relief, which could be prayed for in a new
suit, cannot be permitted to be incorporated in the pending suit.
(9) Where a suit was filed without seeking an appropriate relief, it is a well settled rule of practice not to dismiss the suit automatically, but to allow
the plaintiff to make necessary amendment, if he seeks to do so.
(10) Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after
conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudice because he will have full opportunity of meeting
the case of the plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be answered
by inference to the facts and circumstances of each individual case.
(11) The law in this regard is quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation
an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. The jurisdiction to allow or not
allow an amendment being discretionary, the same will have to be exercised on a judicious evaluation of the facts and circumstances. If the granting
of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed.
(12) In regard to the stand of the defendants that the declaration sought by the plaintiffs is barred by limitation, there is dispute and it is not an
admitted fact. While the defendants pleaded that under Entry 58 of the Schedule to the Limitation Act, the declaration sought for by the plaintiffs in
this case ought to have been within three years when the right to sue first accrued, the plaintiffs contend that the same does not fall under the said
entry but falls under entry 64 or 65 of the said Schedule to the Limitation Act, which provides for a limitation of 12 years, therefore, according to
them, the prayer for declaration of title is not barred by limitation. In such a situation, where there is a dispute as to the bar of limitation, the
amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea of limitation,
being disputed, could be made a subject matter of the issue, after allowing the amendment prayed for.
The said judgement of the Hon''ble Supreme Court, pronouncing categorically the legal position in Rajesh Kumar Aggarwal and Others Vs.
K.K. Modi and Others, and the entire case law on the subject was again referred by a Full Bench of this Court in the order passed in Hi. Sheet
Industries, a partnership firm, carrying on business at 61-D, D.V. Road, Ambur Town, Vellore District v. Litelon Limited having its Office at No.
68, Commissioner of Income Tax Vs. Andhra Pradesh State Road Transport Corporation, while dealing with the proviso to Order 6 Rule 17 of
CPC which was introduced in 2002 and also the period of limitation have held, the ultimate test is to safeguard the rights of both parties and sub
serve the ends of justice in the following words:
11.11. With great respect to the learned Judges of the Division Bench, we differ in that view. The two latest landmark judgments of the Supreme
Court in Baldev Singh Case and Rajesh Kumar Aggarwal case clarify that the point of limitation is immaterial when the Court is called upon to
determine the real question in controversy between the parties and in that direction when there is no prejudice caused to the other side. The
Supreme Court also clarified that the Court should take notice of the subsequent events and should shorten the litigation to preserve and safeguard
the rights of both parties and subserve the ends of justice.
Therefore, the analysis of the entire case laws on the subject as well as the term used in Order 6 Rule 17 of the CPC shows that it is ultimately
to decide and determine the real questions in controversy between the parties, the amendment has to be used, which means that the amendment
need not be denied only on the technical ground, for, such denial would only lead to multiplicity of proceedings, which is uncalled for, especially in
the present era of docket explosion.
Applying the said legal position to the facts of the present case I have elaborately discussed above, I have no hesitation to come to the
conclusion that the amendment sought for is not in any manner altering or affecting the original suit filed by the plaintiff or introducing any new case
and by amendment it is only the existence of the common passage, which is available as per the partition deed dated 29.05.2001 is sought to be
explained and clarified and therefore, as per the cardinal rules laid down by the Hon''ble Apex Court, this should be taken only as clarificatory in
nature and in my considered view there was absolutely no bar on the part of the Trial Judge in considering the same and ought not have rejected
only on the technical ground of delay. Even the proviso to Order 6 Rule 17 of the CPC has to be read based on the cardinal principles laid down
by the Hon''ble Apex Court, namely, to determine the real question in controversy between the parties.
On the facts and circumstances of the case, I am of the considered view that order of the learned Trial Judge in rejecting the application for
amendment is improper and not in the interest of settling the dispute between the parties on the basis of justice and equity.
In view of the same, the C.R.P. stands allowed and the order of the learned Trial Judge passed in I.A.No.64 of 2006 in O.S.No.37 of 2005
dated 13.02.2006 is set aside with a direction to the Trial Court to permit the petitioners to make amendment and after giving opportunity to the
defendants to file additional written statements and framing the additional issue if necessary and there after proceed with the trial and complete the
same expeditiously. No Costs. Consequently, connected C.M.P. is closed.