Johnson vs David Daniel

M. Kalyanasundaram, J.—The Revision Petitions arise out of the orders passed by the learned II Additional District Munsif, Kuzhithurai in I.A. Nos. 529 and 557 of 2005 in O.S. N. 163 of 1998, dated 21.07.2006.

The petitioners are defendants 2 to 5 in O.S. N. 163 of 1998, on the file of the learned II Additional District Munsif, Kuzhithurai. The respondents 1 and 2 had instituted a Suit against the petitioners and respondents 7 to 12, for declaration of title and for consequential permanent injunction, restraining the defendants from trespassing into the suit property.

Resisting the prayer, the defendants have filed their written statement and they are contesting the case.

In the suit, the plaintiffs filed an application for appointment of Advocate Commissioner to note down the physical features of the suit property, in I.A. No. 502 of 2001, an Advocate Commissioner was appointed and he filed his report with plan. The petitioners filed objections to the Commissioner''s report. Thereafter, the plaintiffs filed I.A. No. 498 of 2004, to reissue the warrant to the same Commissioner for inspecting the property and to file the report. The learned District Munsif allowed the petition. Thereafter, he filed his report, dated 25.02.2005.

After filing of the report of the Commissioner, the petitioners filed I.A. No. 529 of 2005 to scrap the report of the Advocate Commissioner, dated 07.02.2003 and 25.02.2005. The plaintiffs/respondents 1 and 2 filed an application in I.A. No. 557 seeking amendment of pleadings. The petitioners filed the application contending that as per plaint, the suit property lies in S. No. 608/2A1, but the Commissioner had inspected the property in S. No. 608/1 and thereby, he exceeded his jurisdiction. It is further contended that the reports were filed only to help the plaintiffs, which will not be useful to decide the issues involved in the Suit. The respondents 1 and 2 filed their counter denying the allegations made by the petitioners herein.

The respondents filed an application in I.A. No. 557 of 2005 contending that the old R.S. Number to the suit property was R.S. No. 1619A correlated to new R.S. No. 60/1, but, by mistake, the number was wrongly mentioned in the plaint, as R.S. No. 608/2A1 and it is further contended that inspite of pendency of the Suit and interim injunction against the defendants, the 1st respondent proceeded with construction and therefore, necessary averments have to be included in the pleadings.

The petitioners mainly contended that the amendment will change the nature and character of the Suit and the application was also filed belatedly. But, the learned District Munsif allowed the application for amendment and dismissed the petition filed to scrap the reports of the Advocate Commissioner. Aggrieved by the orders, the petitioners have filed the revision petitions.

Heard Mr. K. Sreekumaran Nair, learned counsel for the petitioners, Mr. T.S.R. Venkatarama, learned counsel for the 1st respondent, Mr. V.M. Balamohan Thambi, learned counsel for the 2nd respondent, Mr. V. Manikandan, learned counsel for the respondents 4, 5, 7 and 8 and perused the records.

The learned counsel for the petitioners submitted that substitution of R.S. No. 608/1 in the place of R.S. No. 608/2A in the schedule of property, the subject matter of the suit will be changed; that the plaintiffs had purchased the property in R.S. No. 608/2A1, by a sale deed, dated 15.09.1997 and therefore, it is not open to the respondents to amend the survey number in the suit property as R.S. No. 608/1. It is further submitted that the plaintiffs claimed right through his vendor viz., Chellian Nadar, who was 26th defendant in O.S. No. 133 of 1113 M.E. and he claimed title over the property in S. No. 1690A and further he was directed to file a separate suit to establish the title. The contention of the petitioners that the amendment will change the character and nature of the suit and therefore, it cannot be allowed.

The learned counsel further submitted that the plaintiffs filed a petition to note down the physical feature in R.S. No. 608/2A1. But the Commissioner filed report in respect of the adjacent property and therefore, it is liable to be scraped by this Court. The learned counsel further submitted that the revision petitioners has identified the property in R.S. No. 608/2A1, but it was not recorded by the Commissioner; that warrant was issued only to note down the property in R.S. No. 608/2A1 and without a specific direction to the Commissioner, he filed a report for R.S. No. 608/1 and hence, the report of the Commissioner is liable to be scrapped by this Court.

Per contra, the learned counsel for the respondents made submission in support of the order passed by the Court below.

In the Judgment of this Court reported in 2006(4) CTC 239 (Synam Beevi Ammal Vs. Seeni), it has been held that by amending the survey number, cause of action would not change.

(i) The Full Bench of this Court in the Judgment reported in Dr. S.H. Sithik Basha Vs. Fazal Ahmed, has held as follows:-

"12........the Court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case and it should not record the finding on the merits of the amendment as it should be done only during the trial of the suit."

(ii) In the Judgment of the Hon''ble Apex Court reported in Abdul Rehman and Another Vs. Mohd. Ruldu and Others, in paras 10 and 11, it has been held as follows:-

"10. Before considering the factual details and the materials placed by the appellants praying for amendment of their plaint, it is useful to refer Order VI Rule 17 which is as under:-

"17. 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."

It is clear that parties to the suit are permitted to bring forward amendment of their pleadings at any stage of the proceeding for the purpose of determining the real question in controversy between them. The Courts have to be liberal in accepting the same, if the same is made prior to the commencement of the trial. If such application is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The original provision was deleted by Amendment Act 46 of 1999, however, 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 above proviso, to some extent, curtails absolute discretion to allow amendment at any stage. At present, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that 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. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in J. Samuel and Others Vs. Gattu Mahesh and Others, and Rameshkumar Agarwal Vs. Rajmala Exports Pvt. Ltd. and Others, . Keeping the above principles in mind, let us consider whether the appellants have made out a case for amendment."

It is true that the plaintiffs had instituted a suit claiming right over the property in R.S. No. 608/2A1 on the basis of the sale deed, dated 15.09.1997. But it is an admitted fact that the original R.S. Number for the suit property was R.S. No. 1619/A and the correlated new R.S. No. 608/1. It is the contention of the plaintiffs that there was a mistake in mentioning the R.S. Number in the sale deed, but the revenue records would show that for the old S. No. 1619/A1 and the new S. No. 608/1. The plaintiffs have filed the application for amendment of Survey Number and also for amendment of the pleadings.

It is an admitted fact that the trial has not commenced in the suit. It is settled law that the Court should be liberal in ordering prior trial amendment to avoid multiplicity of proceedings. Moreover, in the case on hand, the plaintiffs seek for amendment of only survey number of the property, which in my opinion will not change the character and nature of the suit.

The main grounds of the petitioners is that the Commissioner has noted down the physical feature of the property in R.S. No. 608/1 for which, the Commissioner was not issued warrant by the civil Court. The report of the Commissioner shows that the suit property is lying in R.S. No. 608/1, as per the revenue records. Merely because, the Commissioner has inspected the property in R.S. No. 608/1, when the warrant was issued to note down the physical feature of the property in R.S. No. 608/2A1, cannot be a ground to scrap the reports of the Commissioner. As held by the learned District Munsif, the report of the Commissioner is not a conclusive proof to establish the case of the plaintiffs and it has to be proved during the trial.

Keeping in mind the principles laid down by this Court and in view of my findings supra, I do not find any illegality or irregularity in the order passed by the learned II Additional District Munsif, Kuzhithurai in I.A. Nos. 557 and 529 of 2005 in O.S. N. 163 of 1998, dated 21.07.2006.

In the result, both the Civil Revision Petitions are dismissed and the orders passed in I.A. Nos. 557 and 529 of 2005 in O.S. N. 163 of 1998, dated 21.07.2006, on the file of the learned II Additional District Munsif, Kuzhithurai is confirmed. However, there is no order as to costs.