Kasiappa Gounder vs Karuppan and Others

R. Banumathi, J.—These Civil Revision Petitions are preferred against the order of the Principal District Munsif, Coimbatore dated

4.2.2003 in I.A. Nos. 1588 and 1517 of 2002 in O.S. No. 1641 of 1994, allowing the Application in I.A. No. 1517 of 2002 to deposit the

Mortgage amount and allowing the Amendment in I.A. No. 1588 of 2002. The First Defendant is the Revision Petitioner.

Case of the Respondents/Plaintiffs is that the Suit Property and other properties comprising the total extent of 8.88 acres originally belonged to

Chinnavadukan, who is the great grandfather of the Plaintiffs. He owned the said Properties under Inam patta No. 3 dated 01.10.1910. After the

death of Chinnavadukan, the Property devolved upon his four sons. Chinna Sadayandi, who is the grandfather of the Plaintiffs had got 2.22 acres,

out of which, the Plaintiffs'' father Karuppan had acquired 74 cents. Plaintiffs'' father Karuppan was the absolute owner of the said 74 cents, which

the suit property herein and he was in possession and enjoyment of the same. After the death of Karuppan, the Plaintiffs have acquired the Suit

Property - 74 cents and they have been in possession and enjoyment of the same till 1985. They were living in a small hut in the said Property.

Since the Plaintiffs could not cultivate the lands due to lack of irrigation facilities, eking out their livelihood, the Plaintiffs were forced to leave their

lands seeking for employment elsewhere. Taking advantage of the absence of the Plaintiffs, the Defendants have illegally taken possession of the

properties. The Plaintiffs have been obstructed from entering their own lands. The Defendants have also tampered the Revenue Records, which are

not binding on the Plaintiffs. The Plaintiffs have issued legal notice on 16.7.1993 to the First Defendant. Having received the Notice, the First

Defendant had sent a reply through his counsel claiming that the property originally belonged to one Mangammal as per the Sale Deed dated

24.4.1954. The said Mangammal was not the owner of the suit property at any point of time. The claim of the Defendants that the First Defendant

purchased the Suit Property under Sale Deed dated 11.4.1979 is incorrect. Hence, the Plaintiffs have filed the Suit for delivery of vacant

possession and for costs.

Denying the allegations in the Plaint, the First Defendant has filed the Written Statement adopted by the Second Defendant. In their Written

Statement, the Defendants have alleged that the Plaintiffs father Karuppan for himself and on behalf of the Plaintiffs have executed a Registered

Mortgage Deed dated 28.4.1954 in favour of one Mangammal wherein they have agreed to redeem the Mortgage within six years, failing which

the Mortgage Deed to be treated as the Sale Deed. Since the Mortgage was not redeemed within the period of six years, the Father of the Plaintiff

has lost the interest. The Second Defendant is the only legal heir of the said Mangammal. The Second Defendant has sold the suit property to the

First Defendant under a Sale Deed dated 9.4.1979 for a sum of Rs. 2,000. Eversince the date of purchase, the First Defendant is in possession

and enjoyment of the Suit Properties. In recognition of his enjoyment of the Suit Properties, Revenue Authorities have also effected mutation of the

records. The First Defendant is paying the land Revenue. The First Defendant has also perfected Title to the Suit Property by adverse possession.

The Plaintiffs cannot have any valid claim in the Suit Property and hence they are not entitled for the relief of possession sought for in the plaint.

When the Trial commenced and P.W.1 was examined in Chief, the Plaintiffs have filed I.A. No. 1588 of 2002 for amending the Plaint. In the

supporting Affidavit, it is alleged that in the Written Statement, the Defendants have referred to the Mortgage executed by the Plaintiffs'' father on

28.4.1954 in favour of one Mangammal. After the death of the Plaintiffs'' father, the Plaintiffs are the owners of the suit property. Hence, the

Plaintiffs are entitled to redeem the mortgage and possession of the suit property. The Plaintiffs have also filed I.A. No. 1517 of 2002 for deposit

of Rs. 350 payable towards the Mortgage amount. The Mortgage of the suit property has to be redeemed by the Plaintiffs. Hence, the amendment

has been sought for converting the suit as one for redemption of mortgage dated 28.4.1954 and also for possession of the Suit Property.

The Application for amendment was strongly opposed by the Defendants contending that the Application has been belatedly filed after the

commencement of Trial. The Suit was originally filed for delivery of possession. Now, the proposed Amendment for redemption or mortgage

completely changes the character of the suit and the original claim and hence, Amendment cannot be allowed. The Mortgage is of the year 1954

and the claim of the Amendment is of the year 2002. In view of the pre-suit notice and the reply and the Written Statement, the Plaintiffs claim is

not only without basis but also a time barred one and hence, the Amendment cannot be allowed.

Upon consideration of the averments in the Affidavit and in the Counter Statement, the Trial Court found that the proposed Amendment does

not change the character of the suit. After certain calculations, finding that the period of 30 years for redemption expires on 28.4.1984 and six

years of time for redemption expires in 1990 and that the suit could be filed within 12 years and thereafter (after 1990) and that the Amendment is

not barred by limitation. It has been further held that the proposed Amendment for redemption of mortgage is not a new case altering the character

of the suit and that merely on the ground of delay, the Amendment cannot be disallowed. On those findings, learned District Munsif allowed the

Amendment Application (I.A. No. 1588 of 2002). I.A. No. 1517 of 2002 was also allowed permitting the Plaintiffs to deposit a sum of Rs. 350

towards the Mortgage amount.

Aggrieved over the allowing of Amendment Application and I.A. No. 1517 of 2002 permitting the Plaintiffs to deposit the mortgage amount, the

Defendants have preferred these Revision Petitions. Assailing the impugned orders, learned counsel for the Revision Petitioner has contended that

the Amendments ought not to have been allowed in view of the unconscionable delay. Drawing the attention of the Court to the Plaint averments

and the proposed amendment, learned counsel has submitted that the proposed Amendment inter alia changes the nature and character of the suit,

which was not properly appreciated by the Trial Court. It is further submitted that after the C.P.C. Amendment, no application for Amendment

shall be allowed after the commencement of the trial. When the Trial had been commenced and Chief Examination of P.W.1 was completed, the

Trial Court was nor right in allowing the application unmindful of the spirit of the Amendment and Revision Petitioner prays for setting aside the

Impugned Order.

Supporting the order of the Lower Court, learned counsel for the Respondents/Plaintiffs submitted that proper opportunity ought to be given to

the Plaintiffs to set forth their case. It is further submitted that the power of the Court to allow the Amendment is very wide and is to be liberally

exercised in allowing the Amendments. Learned counsel has submitted that any defence plea of limitation adverse possession, etc., could be set

forth by giving opportunity to the Defendants to file Additional Written Statement. Learned counsel has further submitted that the proposed

amendment would not in any way cause prejudice to the rights of the Defendants.

Upon careful consideration of the pleadings, impugned order, proposed amendment and the submissions of both sides, the following points arise

for consideration in these Revision Petitions :

(i) Would not the proposed Amendment for redemption of the Mortgage by deposit of the amount alter the character of the suit ?

(ii) Impugned order that the proposed amendment does not alter the character of the suit whether there is proper exercise of discretion ?

Generally, all averments are to be made for the purpose of determining the real question in controversy between the parties to any

proceedings. All amendments of pleadings which are necessary for determination of the real controversies in the suit are to be allowed. It is no

doubt true that the Courts should be liberal in allowing the application for amendment of the Plaint. But, can it be extended to such an extent in

allowing the amendment which inter alia alters the character of the suit and making inter alia a new case is the main point involved. The Suit

Property relates to 74 cents. Case of the Plaintiff is that the Suit Property 74 cents was acquired by his father - Karuppan through his grandfather

and the suit property is the ancestral property of the Plaintiffs. Further case of the Plaintiffs is that they have been in possession and enjoyment of

the property till 1985 and they were living in a small Salai in the suit Property. Due to lack of irrigation facilities, the Plaintiffs could not cultivate the

lands and the Plaintiffs were forced to leave their lands seeking employment elsewhere. It is the further case of the Plaintiff that taking advantage of

their long absence, the Defendants have illegally taken possession of the properties of the Plaintiffs. On those pleadings, the Plaintiffs have filed the

Suit for Recovery of Possession. The definite allegations in the Plaint are to the effect:

(i) The defendants have illegally taken possession of the suit property and are in illegal occupation;

(ii) Possession of the Defendants is illegal and the Revenue Records have been tampered by the Defendants.

Now, the proposed Amendment is for redemption of Mortgage. It is relevant to refer to the details of the Amendment set forth in the petition:

....Any recital in Mortgage that the Mortgage will become a sale after the expiry of the redemption period is a clog on the mortgage and it is not

valid. It is settled law that once a mortgage is always a mortgage. The details of the mortgage is as follows:

Name of the Mortgagors : 1. Karuppan (died)

Karuppan

Chinnakannan @ Vadukan

Masani

Rangaswamy

Name of the Mortgagee : Mrs. Mangammal (died)by

Legal Representative,

Maruthakutty Gounder

(IInd Defendant)

Kasiappa Gounder

(Purchaser of the Mortgage

property and 1st Defendant)

Date of Mortgage : 28.4.1954

Amount secured : Rs. 350

Rate of Interest : Since it was an usufractuary

mortgage only principal is due.

Period of redemption : Six years (Since the mortgage is

usufractuary mortgage, it can be

redeemed at any time before it was

fore closed.)

ADD in the PRAYER : holding that the Plaintiffs

discharged the mortgage dated

28.4.1954 in favour of Mrs.

Mangammal and redeemed the

Mortgage"".

Thus, the case for recovery of possession is now sought to be amended as the one for redemption of Mortgage. It is not an additional

approach on the same facts. The proposed amendment to change the suit as the one for redemption of Mortgage and possession is contradictory

to the original plea that the possession of the Defendants is illegal. By the proposed amendment, the averment ""Illegal possession"" of the

Defendants is sought to be altered as ""lawful possession"" and they are bound to deliver the same in view of the deposit of the Mortgage amount.

The proposed amendment sought to be introduced is totally inconsistent with the earlier case. The amendment amounts to making out a new case,

introducing entirely a new case, seeking to completely displace the defence. Such an amendment changing the whole nature of the suit cannot be

allowed. The lower Court ought to have considered that the proposed amendment that it totally changes the character of the suit.

The stage in which the Amendment Application has been filed is to be noted:

Suit O.S. No. 1641 of 1994 filed.... 1994

Written Statement filed .... November 1995

P.W.1 examined .... 2002

Amendment Application filed after .... September 2002

commencement of Trial.

It is clear that the Amendment Application has been filed nearly eight years after the suit was filed. The inordinate delay in making the Amendment

application is yet another reason to refuse the amendment. No doubt, delay cannot be the ground for refusal of the Amendment. Belated

applications for Amendment can also be amended on payment of costs, if necessary. But, where there is inordinate and unexplainable delay, such

amendment cannot be allowed.

On the doctrine of relation back, which in general governs amendment of pleadings unless for reasons the Court excludes the applicability of

the rule in a given case, the pleadings would be deemed to have been filed originally as such and the evidence shall have to be appreciated in the

light of the amended pleadings -- Siddalingamma and Another Vs. Mamtha Shenoy, .

Due to the long pendency of the suits and the period, valuable right must have been accrued to the Defendants. In the facts and circumstances

of the case, if the proposed Amendment is allowed eight years after the filing of the Suit, it would cause serious prejudice to the Defendants

seriously affecting their rights accrued over the years. This aspect was also not taken note of by the Trial Court.

Order 6, Rule 17, C.P.C. has been amended by the C.P.C. Amendment Act with effect from 1.7.2002. A new proviso has been added to the

rule, namely that no application for amendment of the pleadings 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. Thus after the trial of the case

has commenced, no application for amendment of the pleading shall, 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 this case, Chief-examination of P.W.1 was completed

and the Amendment Petition filed after the Trial is not maintainable.

After the Trial has commenced, the Amendment Applications may be allowed in case where the Court comes to the conclusion that inspite of

due diligence, the party could not have raised the matter before the commencement of the Trial. In this case, there is nothing to conclude that in

spite of due diligence, the Plaintiff could not have filed the Amendment Application. On the other hand, circumstances only indicate lack of

diligence and that the Plaintiffs could have filed the suit for redemption (if necessitated). Let us elaborate this. As averred in Paragraph 7 of the

Plaint, the Plaintiff issued pre suit notice on 16.7.1993 to the First Defendant. To the said Notice, the First Defendant had sent a reply through his

counsel setting forth his defence - that the property belongs to Mangammal as per the Sale Deed dated 24.4.1954 and that Mangammal was in

possession and enjoyment of the suit property as absolute owner. In the reply Notice, it has also been stated that after the death of Mangammal,

the Second Defendant has sold the property to the First Defendant under the Sale Deed dated 11.4.1979 and that the First Defendant is in

possession of the suit property. Thus, even prior to the filing of the Suit, the Plaintiffs were put on notice about the right and Title of Mangammal

and the Sale Deed in favour of the First Defendant. Though the Plaintiffs were put on notice about the right of Mangammal and the Sale Deed in

favour of the First Defendant, the Plaintiff ignored the same. Unmindful of the averments in the reply notice, the Plaintiffs have filed the suit merely

for possession. In fact, the Plaintiffs have not even chosen to seek declaration of their Title. If really the Plaintiffs have been interested in

redemption of the Mortgage, nothing prevented the Plaintiff from filing the Suit as the one for redemption even at the initial stage.

Yet another conduct of the Plaintiff is to be noted. The Suit is of the year 1994. Setting forth elaborate defence, the defendants have filed their

Written Statement even as early on in November 1995. Even after filing of the Written Statement, the Plaintiffs have not chosen to file the

Amendment Application or the Application to deposit the Mortgage amount. Only after the Trial has commenced and P.W. 1 was examined in

Chief, the Application for Amendment has been filed. The lack of diligence on the part of the Plaintiffs has not been taken note of by the lower

Court. Learned District Munsif has worked out the calculation stating that the period of redemption is 30 years, which expires on 28.4.1984.

Adding six years time given for payment which expires in 1990 and found from 1990, 12 years time is available to claim the recovery of

possession. Learned District Munsif has found that the Amendment is not barred by limitation. It is to be noted that it is not the question of

limitation; but, on the other hand, the proposed amendment prejudicially affecting the rights of the Defendants accrued over the years. The lower

Court has not properly appreciated the introduction of a new case nor the inordinate delay in filing the Amendment Application. The Court below

has not properly appreciated the spirit and object behind the amended Code that no Amendment could be allowed after the commencement of the

Trial.

The Court has acted on wrong principles stating that the proposed Amendment does not alter the character of the Suit. The Trial Court has

committed error in appreciation of the provision of law and acted with material irregularity. Hence, the Impugned Order is to be set aside and these

Revision Petitions are to be allowed.

Therefore, the order of the Principal District Munsif, Coimbatore dated 4.2.2003 in I.A. Nos. 1588 and 1517 of 2002 in O.S. No. 1641 of

1994 is set aside and these Civil Revision Petitions are allowed. In the circumstances of the case, there is no order as to costs. The connected

C.M.P. No. 12934 of 2003 is closed. Since the Suit is of the year 1994, learned District Munsif, Coimbatore is directed to expedite the Trial and

dispose of the Suit expeditiously.