AI Structured Summary
Not yet generated for this judgment
Judgment
S. Palanivelu, J.—The petitioners are plaintiffs in O.S. No. 3 of 2005 on the file of the District Munsif Court, Nilakottai. The suit has been laid against three defendants for the relief of declaration that they alone have got the right over the suit properties and for permanent injunction against the defendants. Both the plaintiffs are spouses. The first defendant sold the suit property for Rs. 40,000/- in their favour on 29.07.1994. It was alleged in the sale deed that the plaintiffs had to discharge Rs. 15,000/- received by the first defendant from the second defendant. The second defendant filed a suit subsequently in O.S. No. 178 of 1994 on the file of the District Munsif Court, Nilakottai for permanent injunction against the plaintiffs and the first defendant. The suit was decreed ex-parte. Thereafter, the second defendant filed a suit in O.S. No. 215 of 1997 against these petitioners and the first defendant for recovery of mortgage amount.
In the said suit, both the preliminary and final decree were passed ex-parte. In the plaint, the petitioners have alleged that in both the proceedings they did not receive summons and the defendants colluded together so as to make the service on these petitioners impossible. In the affidavit, it is further stated that even though it is alleged in the plaint that those decrees need not to be set aside, now it has become necessary to pray for the cancellation of the decrees passed in both the suits. By allowing the amendment application, the nature of suit or the cause of action will not be altered.
In the counter filed by the second respondent/second defendant, it is alleged that though the petitioners pleaded in the plaint that no relief need to be prayed for as regards the decrees passed in both the suits, in an inconsistent manner they have sought for amendment. It is denied that the plaintiffs were not served with summons in the previous proceedings and thus the petition has been filed belatedly. The petitioners have not filed any application to set aside the ex-parte decree passed in O.S. No. 178 of 1994. The third respondent took the property in Court sale in E.P. No. 41 of 2000 and on 31.07.2004 the delivery was also effected in his favour. Further, the petitioners and the first respondent filed I.A. No. 251 of 2002 to set aside the ex-parte decree passed on 31.03.1998 in O.S. No. 215 of 1997 along with the application for condoning the delay of 1570 days. The said petition was dismissed on 10.01.2003 and the petitioners very well knew about the filing of the application and the Court proceedings. The amendment application is barred by time. Hence, the petition has to be dismissed.
The learned District Munsif Court, Nilakottai dismissed the application by observing that the allegations in the affidavit are not believable and that the pleadings in the plaint and the allegations in the affidavit are quite contradictory and hence, the amendment could not be allowed. It is further added that the petition is a belated one.
The learned Counsel for the petitioners Mrs. Vijayashanthi, laboured hard to elucidate the facts involving the Court proceedings previously took place wherein these petitioners were not put to knowledge about them. It is her contention that the petitioners were not at all aware of the Court proceedings and the decrees passed in both the suits were obtained behind their back and only at the time of filing of the present suit, they came to their knowledge and hence, they pleaded in the plaint. It is her further contention that the petitioners were not also knowing about the filing of I.A. No. 215 of 2002 for condonation of delay and that their signatures and thumb impressions in the vakalat were forged by the defendants which were not put by them. It is her further version that the delivery of property allegedly effected in favour of the third respondent is only a paper delivery and still the possession of the suit property is with the petitioners. She also says that it is settled principles of law that the Courts have to take liberal view in allowing the pre-trial amendments and the effect of proposed amendments will not alter the structure of the suit and change the cause of action.
In support of her contention she placed reliance upon a decision of the Supreme Court reported in 2006 (3) MLJ 70, Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors., wherein Their Lordships have held that amendment has to be allowed, where the basic structure of the suit is not changed, there was merely change in the nature of the relief claimed and where it would be permissible to file an independent suit claiming the relief and that while considering the application for amendment, the Court should not go into correctness and falsity of the case in the amendment, and should not record a finding thereon. She also garnered support from a Full Bench decision of this Court reported in Commissioner of Income Tax Vs. Andhra Pradesh State Road Transport Corporation, , wherein the learned Judges have formulated five guidelines before considering the amendment application, they are as follows.
(a) As to whether amendment should be allowed or not;
(b) When it does not affect cause of action;
(c) it does not introduced new cause of action;
(d) it would not cause serious prejudice to opposite party; and
(e) when such amendment is required in interest of justice.
It is also observed therein that even if the amendment is barred by limitation, it is not a ground for rejecting the amendment and the delay in filing such application is not fatal, when no serious prejudice is shown to have been caused to opposite party so as to take away any accrued interest and the Court should take notice of the subsequent events in order to shorten litigation to preserve and safeguard rights of both parties in the interest of justice.
Adverting to the facts of the case, the fact remains that these petitioners and the first respondent filed I.A. No. 251 of 2002 to condone the delay of 1570 days in filling the application to set aside the ex-parte passed in O.S. No. 215 of 1997 on 31.03.1998 and the said petition was dismissed after enquiry on 10.01.2003. Concededly, there had been neither appeal nor revision from the said order. The petitioners have not filed any application to set aside the ex-parte decree passed in O.S. No. 178 of 1994. A perusal of the written statement filed by the second defendant would show that these petitioners and the first respondent filed E.A. No. 14 of 2003 u/s 47 of C.P.C. and the said petition was also dismissed on 27.08.2003, after enquiry. From this order also, there was no appeal nor revision.
The gist of the amendment is that the ex-parte decree passed in O.S. No. 178 of 1994 and 215 of 1997 have to be cancelled. As far as the decree passed in O.S. No. 215 of 1997 is concerned, these petitioners have already taken steps to set aside the ex-parte decree, but failed in their attempt. However, it is pleaded in the plaint that they were unaware of the said I.A. Whatever may be, the order passed in I.A. No. 251 of 2002 and E.A. No. 14 of 2003 would operate as res judicata in this proceedings for the reason that the subject matter and parties to the suit as well as the claim are identical.
In view of this Court, in order to circumvent the procedure to be taken to avoid the ex-parte decrees in both the suits, they have come forward with this application to introduce the prayers for cancellation of the decrees in both the suits. Having pleaded that they got knowledge of the previous proceedings and fraud and mis-representation committed by the first defendant, only at the time of filing of the suit in O.S. No. 3 of 2005, they filed this application after about one year from the date of filing of this suit.
In view of this Court, the proposed amendments would definitely alter the character of the suit and the cause of action is also likely to be changed. Even though the Court has to take liberal view with regard to the pre-trial amendment, still as far as this amendment application is concerned, the circumstances do not warrant to take such view since the Petitioner''s claim is not entertainable. This Court does not find any infirmity in the order passed by the Court below. It deserves to be confirmed and accordingly it is confirmed.
In the result, the Civil Revision Petition is dismissed. The petitioners are at liberty to prefer steps to have the decree in both the suits in O.S. No. 178 of 1994 and O.S. No. 215 of 1997 set aside in accordance with the law and the second respondent is permitted to project the objections which he has raised in the present proceedings.