K. Duraisamy vs I.C. Subramaniam

S. Tamilvanan, J.—Heard the learned Counsel appearing for the Petitioner as well as Respondents 1 to 3.

The Civil Revision Petition has been preferred under Article 227 of the Constitution of India challenging the Order dated 27.2.2013 made in I.A. No.49 of 2013 in O.S. No.18 of 2012 on the file of Principal District Judge, Erode.

The Suit was filed by Respondents 1 to 3 as Plaintiffs seeking partition and separate possession of 1/6th share in the Schedule of property. It is not in dispute that Written Statement was already filed by the Defendants in the Suit including the Petitioner, who was arrayed as Fifth Defendant in the Suit.

After framing of issues, the case was posted for trial, PW1 was examined and the Plaintiffs'' evidence was closed then the matter was posted for Defendants'' evidence. At that stage, Respondents 1 to 3/Plaintiffs filed an Interlocutory Application in I.A. No.49 of 2013 under Order 6, Rule 17 of C.P.C. to amend the Plaint in order to include certain properties.

It is not the case of the Petitioner/Fifth Defendant that the Suit property is exclusively owned by him. The Petitioner/Fifth Defendant raised an objection stating that it was a part-heard case, allowing the Petition filed by Respondents 1 to 3/Plaintiffs seeking amendment belatedly, would prejudice the rights of the Petitioner herein. However, considering the facts and circumstances, the Court below allowed the Interlocutory Application in I.A. No.49 of 2013. Aggrieved by which, the present Revision has been preferred by the Petitioner/Fifth Defendant.

Mr. N. Manokaran, learned Counsel appearing for the Petitioner submitted that the Court below without considering the delay and the fact that it is a part heard case, simply allowed the Petition, filed by Respondents 1 to 3 against the mandatory provisions under Order 6, Rule 17 of C.P.C.

Per contra, Ms. P.T. Asha, learned Counsel appearing for Respondents 1 to 3 submitted that in the Written Statement itself, the Petitioner/Fifth Defendant had stated that some of the properties were left out in the Suit, hence, the Suit was bad on the ground of partial partition. However, the Petitioner/Fifth Defendant has not given any details about the properties left out in the Suit Schedule. However, after getting the details regarding the property that was left out by Respondents 1 to 3, being plaintiffs, they filed the Interlocutory Application in I.A. No.49 of 2013 so as to include the property, hence, which could not be construed as delay tactics.

In this regard, learned Counsel for the Petitioner relied on the following decisions rendered by the Hon''ble Apex Court:

In Samuel and others v. Clattu Mahesh & others, 2012 (2) CTC 94, the Hon''ble Apex Court has held that the claim of typographical error/mistake would be baseless and omission of mandatory requirement running into few sentences, would not be typographical error. Had the person, who prepared the Plaint, signed and verified the same, showed some attention, omission could have been noticed and rectified then and there. Hence, it was a case of lack of due diligence, accordingly, the rejection of Amendment Petition filed under Order 6, Rule 17 of C.P.C. by the Lower Court was confirmed.

Learned Counsel for the Petitioner also drew the attention of this Court to the ruling of Hon''ble Apex Court at Page No. 102, as follows:

" ... Though the Counsel for the Appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6, Rule 17, with Proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6, Rule 17, as introduced in 2002 is to stall filing of Application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other''s case. It also helps checking the delays in filing the Applications...."

In Vidyabai and others v. Padmalatha and another, 2009 (2) SCC 409, the Hon''ble Supreme Court has held that Order 6, Rule 17 of C.P.C. is couched in a mandatory form. Unless the jurisdictional aspect, as envisaged in the Proviso to Order 6, Rule 17, C.P.C. is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the Plaint. The Court''s jurisdiction to allow such an Application is taken away in view of the Proviso, unless the conditions precedent therefor are satisfied viz. in order to allow the Petition, the Court must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. It was further held from the Orders passed by the Trial Judge, it was evident that the Respondents therein had not fulfilled the said precondition.

It has been made categorically clear by the decisions that if the relief sought for in I.A. is filed seeking amendment of the Plaint, after commencing of the Trial, unless it is established by the Applicant that in spite of due diligence steps could not be taken for the said amendment, at the pre-trial stage, the same would not be permitted.

Learned Counsel for Respondents 1 to 3 relied on the following decision referred to by the Hon''ble Apex Court:

In Revajeetu Builders and Developers v. Narayanaswamy and sons and others, 2010 (1) MWN (Civil) 460 (SC) : 2010 (2) LW 917, the Supreme Court has ruled that the Appellant while seeking permission to amend the Plaint was trying to introduce a new case which was not his case in the original Plaint and proposed amendment, if allowed, would certainly affect the rights of the Respondents adversely, hence, it cannot be permitted, under Order 6, Rule 17, C.P.C.

Referring various decisions, the Hon''ble Apex Court in Para 70 of the decision held as follows:

"70. 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 this ruling it has been made clear by the Apex Court that Petition filed under Order 6, Rule 17 of C.P.C. cannot be decided in a casual manner and the Court has to find whether refusal of the pica seeking amendment would meet the ends of justice. If seeking amendment is bona fide, legitimate, honest and necessary, the same be permitted, however, the Court should never permit mala fide, worthless or dishonest amendments.

In the instant case admittedly Respondents 1 to 3/the Plaintiffs in the Suit have sought for partition of 1/6th share in the Suit Schedule of property and the Petitioner/Fifth Defendant is also in the same putting in claiming share in the property. In a Partition Suit, even a Defendant is in the same putting as that of the Plaintiff, if he has any right of the share in the property, for which such Defendant should seek allotment of his share and pay necessary Court-fees.

A perusal of the copy of the Written Statement filed by the Defendants would show that the Defendants have raised a plea that there is a partial partition, on the ground that some of the properties were left out by Respondents 1 to 3/Plaintiffs, without furnishing any details for such properties. However, in the part-heard Suit, Respondents 1 to 3 as Plaintiffs have taken steps to include the properties shown in the Application for the Partition. On the aforesaid circumstances, it cannot be said that there was no cause of action for filing the Suit or change of character of the Suit and the Application seeking amendment w as also allowed by the Court below. As contended by the learned Counsel for Respondents 1 to 3, in pursuance of the Written Statement filed by the Defendants, Respondents 1 to 3/Plaintiffs filed the Application seeking amendment, so as to include the properties that were left out. Merely because it is a part-heard case, if the bona fide requirement of Respondents 1 to 3/Plaintiffs are rejected, that would certainly prejudice the claim of the Respondents 1 to 3, who are Plaintiffs in the Suit.

It is not the case of the Petitioner/Fifth Defendant that the property stated in the Interlocutory Application are his exclusive properties. Similarly, the Court cannot presume that Respondents 1 to 3/Plaintiffs have adopted any delay tactics in filing the Petition, seeking amendment of the Plaint. As decided by the Hon''ble Apex Court in Revajeetu Builders and Developers v. Narayanaswamy & Sons and others, 2010 (2) LW 917, the amendment sought for by Respondents 1 to 3 as Plaintiffs is bona fide, legitimate and honest and not a delay tactics with any mala fide intention. In such circumstances the delay alone could not be a ground to dismiss the Application filed by Respondents 1 to 3/Plaintiffs. After hearing both sides and the averments made in the Counter, the Court below properly considered and allowed the Amendment Petition.

Having considered the impugned Order, this Court is of the view that the Court below has exercised its power properly and there is no improper exercise of its power. It cannot be disputed that law is only the means and justice is the end. In the Partition Suit, if the property is left out, though Respondents 1 to 3/Plaintiffs have prima facie established that the property to be included for partition, only allowing the Petition would be proper and complete justice.

In the light of decisions of the Hon''ble Apex Court and this Court, referred to above, this Court is of the view that there is no error or infirmity in the impugned Order so as to warrant any interference by this Court, hence, the Revision is liable to be dismissed as not legally sustainable.

Having considered the submissions made by both the learned Counsel, the Court below is directed to dispose the Suit, solely on merits, within a period of three months from the date of receipt of a copy of this order, un-influenced by the findings, if any, by this Court, in this order.

In the result, the Civil Revision Petition is dismissed. No order as to costs. Consequently, connected M.P. is also dismissed.