G.V. Ramesh and Hemalatha vs P. Munusamy

S. Tamilvanan, J.—Heard the learned counsel appearing for the petitioners. In spite of service of notice, there is no representation for the

respondent and the respondent is also called absent. The Civil Revision Petitions have been preferred under Article 227 of the Constitution of India

challenging the order dated 01.07.2013 made in I.A. Nos. 5653 & 5654 of 2013 in O.S. Nos. 12021 & 12022 of 2010 respectively on the file

of II Additional Judge, City Civil Court, Chennai.

It is seen that the suit was filed by the respondent herein originally in C.S. No. 433 of 2002 before the original side of this Court seeking a

decree to declare that the sale deed executed in favour of petitioners who were defendants in the suit by one Perumal Naidu before the Sub

Registrar, Sowcarpet, Chennai, registered as document No. 188 dated 22.02.2002 as null and void and not binding on the respondent/plaintiff and

also consequential injunction. However, another suit was filed by the petitioners herein in C.S. No. 650 of 2003 before the original side of this

Court seeking a decree to declare that the plaintiffs as absolute owners of the suit schedule of property and consequently direct the defendant to

quit and deliver vacant possession of the suit premises and to direct the defendant to pay a sum of Rs. 90,000/- towards damages for use and

occupation at the rate of Rs. 5,000/- p.m. from 22.02.2002 till date of filing of the suit and further damages at Rs. 5,000/- p.m. till date of delivery

of vacant possession with interest at 18% per annum and permanent injunction and other consequential reliefs.

Subsequently, considering the pecuniary jurisdiction, the suit filed by the respondent was transferred to the City Civil Court and re-numbered as

O.S. No. 12021 of 2010 on the file of the II Additional Judge, City Civil Court, Chennai. The suit filed by the petitioners herein was transferred to

the City Civil Court and the suit in C.S. No. 650 of 2003 re-numbered as O.S. No. 12022 of 2010 on the file of the II Additional Judge, City

Civil Court, Chennai.

In the aforesaid suits filed by the respondent and petitioners, the respondent filed Interlocutory Applications in I.A. Nos. 5653 & 5654 of 2013

under Order VI Rule 16 and 17 of C.P.C. seeking an order to amend the pleadings and amend the written statement filed in O.S. No. 12022 of

2010. As per order dated 01.07.2013, the Court below allowed the petitions as follows:

I.A. No. 5653 of 2013:

Service sufficient. Both respondents are called absent set ex-parte. Counsel for plaintiff represents that this application is filed on liberty given by

Hon''ble High Court while disposing CRP. No. 506 of 2013 dated 14.02.2013. Copy of order available with records is perused. Petition is

allowed as liberty was given for filing this petition.

I.A. No. 5654 of 2013:

Service sufficient. Both respondents are called absent set ex-parte. Counsel for the defendant represents that this application is filed on liberty

given by Hon''ble High Court while disposing CRP. No. 506 of 2013 dated 14.02.2013. Copy of order kept in the case records perused. Petition

is allowed as liberty was given for filed this petition.

Mr. K. Ramu, learned counsel appearing for the petitioners herein submitted that the suits were filed in the year 2002 & 2003 and in the plaint in

C.S. No. 433 of 2002 at para No. 10, the respondent herein has specifically averred that with the ulterior motive to cheat the plaintiff, his father

Perumal Naidu sold the suit property on 22.02.2002 to the revision petitioners who were defendants in the suit, for a sale consideration of Rs.

11,00,000/- and that Perumal Naidu died on 11.05.2002, hence, the plaintiff removed the name of Perumal Naidu as first defendant and the

petitioners herein are shown as defendants 1 and 2, as per para No. 14 of the plaint. Contrary to aforesaid pleadings, the respondent herein filed

the I.A. No. 5653 of 2013, seeking amendment in the pleadings and add one of the grounds in the prayer in his suit stating that the signatures of

the respondent''s/plaintiff''s father is entirely deferent and which are forged signatures, hence, the Court may be pleased to declare the sale deed in

document No. 180 of 2002 is null and void.

Learned counsel appearing for the petitioners also drew the attention of this Court to Order 6 Rule 17 of C.P.C. which reads 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.

Though prior to the amendment of the CPC which came into effect on 1.07.2002 by Act 22 of 2002, seeking amendment at any stage, was a

matter of right, however, after the said amendment, after the commencement of trial, amendments of pleading could not be allowed, 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.

In the instant case, the respondent has categorically admitted the fact in his plaint as well as in his written statement in the other suit that his father

Perumal Naidu had sold the property to petitioners on 22.02.2002 itself and that was registered as Document No. 188 of 2002, on the file of Sub

Registrar Office, Sowcarpet, Chennai for which the consideration was Rs. 11,00,000/- and he has also admitted that his father died on

11.05.2002. Totally contra to his own averments, the respondent herein had sought the amendment whereby he has stated that the signatures

available in the sale deed is entirely deferent which are forged signatures. The respondent is not entitled to seek such an amendment, contra to his

own admission and the same cannot be construed to be hold that he was diligent and in spite of his due diligence, he could not have raised the

matter before the commencement of the trial. According to Mr. K. Ramu, learned counsel for the petitioners, the proposed amendment is only an

abuse of process of law and therefore, the respondent was not entitled to seek such an amendment, in order to erase his earlier admission that the

suit sale deed was executed by his father for consideration of Rs. 11,00,000/-, however, the Court below has allowed the petitions. Aggrieved by

which, the petitioners preferred the revisions.

In support of his contention, learned counsel appearing for the revision petitioners relied on the decision, J. Samuel and Others Vs. Gattu

Mahesh and Others, , the Hon''ble Apex Court has held as follows:

Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a

requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage

in due diligence to determine that the representations made are factually accurate and sufficient. The term ''Due diligence'' is specifically used in the

Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of

trial.

In Vidyabai and Others Vs. Padmalatha and Another, , the Hon''ble Apex Court in para 11 has held as follows:

From the order passed by the learned trial judge, it is evident that the respondents had not been able to fulfill the said pre condition. The

question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the

issues are framed is the date of first hearing. Provisions of the CPC envisage taking of various steps at different stages of the proceeding. Filing of

an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to ""commencement of proceeding"".

In Kailash Vs. Nanhku and Others, , the Hon''ble Supreme Court has held as follows:

At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word ''trial''

in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All

the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in

several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings

commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word ''trial''.

As per proviso to Order 6 Rule 17 of C.P.C., after the commencement of the trial, 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 the trial. If the suit is at the pre-trial stage, permitting amendment

would certainly be the discretion of the trial Court. However, after the commencement of trial, the Court cannot permit any amendment to the

pleadings, unless the court is satisfied that in spite of diligence, the party could not have raised the matter. The Hon''ble Supreme Court has

interpreted the term ''due diligence'' and accordingly, the term ''due diligence'' determines the scope of a party''s constructive knowledge, claim and

is very critical to the outcome of the suit.

Had it been known to the plaintiff/party on the date of filing of the suit or filing of written statement in case of the party being a defendant, he

could have incorporated necessary averments in his pleadings seeking amendment for the already known facts. After the commencement of trial, it

could not be construed within the ambit, as a matter of right, hence, the Court must be satisfied that in spite of due diligence by the party, he could

not make the amendment to allow the petition filed under Order VI Rule 17 of the Code of Civil Procedure. In the instant case, the suit in O.S.

No. 12021 of 2010 was filed by the respondent before this Court as C.S. No. 433 of 2002, wherein he has categorically stated that Perumal

Naidu, father of the respondent herein, with an ulterior motive had sold the suit property in favour of the revision petitioners on 22.02.2002 for the

sale consideration of Rs. 11,00,000/- and he has also stated that his father Perumal Naidu died on 11.05.2002. However, as per the proposed

amendment sought for under Order 6 Rule 17 C.P.C., the respondent had sought an order to incorporate averments in the petition filed in I.A. No.

5653 of 2013, totally contra to the averments and admissions made in the plaint in O.S. No. 12021 of 2010 and also in his written statement filed

in the other suit filed by the revision petitioners herein, which cannot be construed as due diligence of the respondent herein for allowing the

application filed by him.

In the light of decisions rendered by the Hon''ble Supreme Court, referred to above, it is clear that the Court cannot presume that in spite of

due diligence by the respondent herein, could not have carried out the amendment in the year 2002 and filed the I.A. in the year 2013 to

incorporate the same. The Court below has passed only a crippled order whereby the respondent herein sought an order to amend the plaint in

I.A. No. 5653 of 2013 and to amend the written statement filed in O.S. No. 12022 of 2010 in I.A. No. 5654 of 2013, which are against the

proviso to Order 6 Rule 17 C.P.C., hence, this Court is of the view that the impugned orders passed in I.A. Nos. 5653 & 5654 of 2013 by the

Court below are to be set aside and accordingly the revisions preferred by the petitioners have to be allowed.

Considering the submission made by the learned counsel for the petitioner, since the suit is pending for a long time, the Court below is directed

to dispose the suits relating to the revision petitions within a period of three months from the date of receipt of a copy of this order, according to

law, on merits. With the above observation, the Civil Revision Petitions are allowed with costs. Consequently connected M. Ps are closed.