N.S. Siamwala and another vs Young Men's Indian Association and Others

K.M. Natarajan, J.—This revision is directed by defendants 6 and 7 against the order passed by the First Assistant City Civil Judge at

Madras, allowing the amendment petition filed by the plaintiff in I. A. No. 20489 of 1984. The facts which are necessary for the disposal of this

revision petition are briefly as follows:-The first respondent herein (plaintiff) filed the suit O.S. No. 6629 of 1976 for the relief of recovery of

possession and damages for use and occupation of the property. The plaintiff filed the petition to amend the plaint by way of inclusion of the relief

of declaration of title to the suit property and incidentally, certain allegations in support of the relief prayed for. It is averred in the affidavit filed in

support of the petition that defendants 1 to 4 trespassed into a vacant space of land measuring about 594 sq. ft. in S. No. 13/14, Jahangir St.,

Madras, belonging to the plaintiff and that they themselves filed the suit in O.S. 232 of 1966 claiming title to the same. The said suit was contested

by the plaintiff contending that the said land belongs to the plaintiff. The contention of the plaintiff was upheld by the trial Court and that it was

confirmed upto the Supreme Court. By reason of the decision in the above proceedings instituted by defendants 1 to 4, the plaintiff filed the suit for

recovery of possession from the defendants. The Commissioner who was appointed in the earlier suit, demarcated the properties of both the

parties and filed a report to the effect that the suit land forms part of R.S. 11695/1, which admittedly belongs to the plaintiff. Hence, the plaintiff

was advised that it was not necessary to pray for declaration of title. But, in spite of the earlier decision, the defendants have disputed the title of

the plaintiff and set up title in themselves. In order to avoid technical objection, the plaintiff is advised to pray for the relief of declaration of title

also. It is further stated that the suit has already been valued under S. 25(a) of the Court Fees Act, which provides for declaration and possession

and hence the necessity of paying additional court fee does not arise.

The said application was resisted by the defendants. In the counter and the additional counter filed in support of their contentions, it is averred

that the proposed amendment changes the very character of the suit and that such change will certainly jeopardize the interest of the defendants

and the valuable rights accrued under law also will be thwarted by allowing such amendment. The earlier wrong advice to the plaintiff as alleged in

para 3 of the affidavit cannot be a ground for amendment of the plaint now. The suit was filed in the year 1976 and the amendment petition was

filed in the year 1984 after a lapse of eight years, that too to fill up the lacuna pointed out by the defendants after cross examination of P.W. 1. The

fifth defendant filed a separate counter affidavit.

The court below allowed the application on payment of costs of Rs. 300 to respondents 6 to 9 jointly and Rs. 200 to the fifth respondent.

Aggrieved by the said order respondents 6 and 7 (defendants 6 and 7) have preferred this revision.

Learned counsel for the revision petitioners. Mr. T.R. Mani, mainly contended that in View of the Averment made in para 3 of the affidavit filed

in support of the amendment petition that the plaintiff was advised that it was not necessary to pray for a declaration of title and the plaintiff not

having asked for the said relief, it would amount to waiver and that the plaintiff is not entitled to file this application later for inclusion of the said

relief by way of amendment. Secondly it was pointed out that there was a delay of 8 years and more in filing the petition, that too after the plaintiff

got into the witness box and he was cross-examined. Thirdly it was submitted by the learned counsel that for the relief of declaration, the relevant

provision under the Court Fees Act is S. 27 or S. 30; but in the instant case the suit has been valued under S. 25 (a) of the court Fees Act, and the

court fee thereon has been paid. The Court below failed to note that when a different prayer is being sought, the market value of the property has

to be computed and the court fee paid thereon and that the lower court is not correct in saying that the suit has been valued for the purpose of

declaration also already. On the other hand, the learned counsel for the first respondent would submit that there was no question of waiver in this

case and that it is nowhere pleaded or contended by the revision petitioners that there is waiver. Even otherwise, it is clear from the averments

stated in the affidavit that the respondent-plaintiff had given only the reasons for not including the relief of declaration when the suit was filed in view

of the earlier decision against the defendants and in favour of the plaintiff in this suit in respect of the very same property, upto the Supreme Court.

Further, the delay has occurred because one of the defendants died and six persons were brought on record and it took nearly three years for

effecting service on them and for them to appear in the suit. Even otherwise, the delay cannot be a ground for rejecting the amendment petition and

that it was duly compensated by means of payment of costs even according to the order of the Court below. According to the learned counsel, the

question of paying court fee and the question of wrong provision cannot be a ground for neatening the prayer for amendment and that it is open to

the defendants to raise all the contentions in the suit after the amendment is allowed.

After hearing the arguments of the learned counsel appearing on either side and on going through the relevant materials on record, I find that in

respect of the very same subject matter defendants 1 to 4 claimed title to the same and filed O.S. 232 of 1966 before the City Civil Court and the

trial Court (VII Asst Judge) dismissed the suit with costs holding that the plaintiffs in that suit have not established title to the suit property, namely,

red-marked portion in the plaint plan and that the plaintiffs therein are not entitled either to declaration or injunction. On appeal to the Second

Additional Judge. City Civil Court, Madras, in A.S. 25 of 1969, the said judgment and decree were confirmed. In the appeal, it was observed that

the documents Exs.B-7 to B-14 relied on by the defendants in that suit who are the plaintiffs in this suit, very clearly support their case that they are

the owners of the suit property and that the plaintiffs therein have not satisfactorily proved their title to the disputed portion. They were also

unsuccessful in the second appeal, S.A. 14 of 1971, and the SLP filed by them was also dismissed. According to the plaintiff in the present suit,

the defendants having trespassed in the suit property, he filed the suit for recovery of possession. According to him, since the defendants set up

title, there was necessity for him to file the suit for recovery of possession. It is his further case that he originally filed the suit for recovery of

possession and subsequently to avoid technical difficulties, he was advised to pray for the relief of declaration of title also as the defendants

persisted in denying the title of the plaintiff and claimed themselves title in the suit property even having failed in the earlier proceedings. As rightly

observed by the lower court, the proposed amendment is not introducing a new case or altering the nature of the suit; but only on the basis of the

allegations already raised in the plaint the additional relief of declaration of title also is sought for. As such, there is no merit in the contention of the

learned counsel for the revision petitioner that there will be change in the character of the suit on account of the amendment. As rightly contended

by the learned counsel for respondents, it is nowhere alleged by the defendants that the plaintiff had waived claiming title to the suit property. Even

otherwise, on a careful reading of the affidavit filed by the plaintiff, it is found that he has given only reasons for not claiming the relief of declaration

of title at the time the suit was filed. In this connection, it is worthwhile to quote the decision of the Supreme Court reported in A.K. Gupta and

Sons Vs. Damodar Valley Corporation, ., wherein their Lordships have held:

A party is not allowed to set up a new case or a new cause of action by amendment, but it is well recognized that where the amendment does not

constitute the addition of a new cause of action or raise a new case, but amounts to no more than a different or additional approach to the facts

already on the record, the amendments will be allowed even after the expiry of the statutory period of limitation. The expression ''new cause of

action'' in this context means, a new claim made on a new basis constituted by new facts, and ''new case'' means a new set of ideas.

At page 801, it was observed as follows:

In L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., a suit for damages for conversion was by amendment allowed to be converted into

a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case on hand, being already in the

plaint. In Charamdas''s case, L.R. 47 IndAp 255, an amendment adding a claim for possession after a suit for such claim had become barred was

allowed in a suit which originally had only claimed a declaration of a right to pre-empt. In the last mentioned case, the plaintiff had in spite of

warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore, a case where the plaintiff had initially

deliberately refused to make a claim to be raised after it had become barred. It was in a sense of stronger case than the present one where the

plaintiff has omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing all mistakes is, of course, not administration of

justice.

It is clear from the above decision of the Supreme Court and the Privy Council that the fact that the plaintiff omitted to ask for the relief or refused

to make"" a claim on a wrong notion or legal advice is not a ground neatening the prayer for amendment of the plaint. These authorities are also for

the proposition that amendment can be allowed even after the claim had become barred if necessary facts were already on record. Hence, the

mere fact that the plaintiff failed to make the claim on the legal advice, that such relief was not necessary when the suit was filed, is not a ground to

negative the amendment. Further, at no stretch of imagination the defendants pleaded or contended waiver of the claim regarding title by the

plaintiff.

As regards the contention of the learned counsel for the revision petitioner that a new cause of action was introduced and a new property was

introduced by way or amendment, I do not find any merit in this contention. It is seen from the plaint in. regard to the description of property, an

extern of 504 sq.ft. has been described with boundaries and delineated and colored in red in the plan filed along with the plaint. In the proposed

amendment also, in para 5(a) of the plaint the plaintiff prayed for declaration that the plaintiff is the owner of the piece of land measuring 594 sq.ft.

and marked red in the plan annexed to the plaint. Thus, there is absolutely no discrepancy regarding the property. The fact that the said 594 sq.ft.

is shown in para 3 of the original plaint as 550 and 14 sq. ft. would not mean that they are two different properties. Even there it is clearly stated

that the earlier suit was for a declaration that these two portions colored red and marked with the letters ABCDEF in the plan annexed to the plaint

belong to the defendants. Hence, there is no merit in the contention that there is discrepancy in the subject matter. There is no change of cause of

action either. It is only on the basis of the averments made in the original plaint the additional relief of declaration of title by way of amendment is

asked for. By way of the amendment proposed, there is no change in the cause of action or in the basis of the claim. As regards delay, the learned

counsel for the revision petitioner submitted that there is a delay of 8 years in filing the petition for amendment and that too after P.W. 1 was

examined. Learned counsel for the respondent explains the delay. According to him. the suit itself could not betaken upon account of the death of

one of the defendants and six persons were to be brought on record as legal representatives and then it consumed a major part of the time, namely,

three years. It is to be pointed out that it is well established that amendment petition can be filed at any stage. The only question is how far the

defendant is prejudiced by the same. Learned counsel for the revision petitioners relied on the decision in Suraj Prakash Bhasin Vs. Smt. Raj Rani

Bhasin and Others, rendered by Sathiadev, J., in support of his contention. That decision is not at all helpful to the case of the revision petitioners.

On the other hand, the learned counsel for the respondent submitted that in view of the decision of the Supreme Court reported in A.K. Gupta and

Sons Vs. Damodar Valley Corporation, which is followed in subsequent decisions, the above decision would not be of any benefit to the case of

the revision petitioners. Learned counsel for the respondent submitted that the decision in Gobi Pillai Vs. Dr. Swamy, ., besides establishing that

amendment can be allowed when there is no change of cause of action, clearly established that amendment can be allowed even after the proposed

amendment is barred by limitation, on the same set of facts. In the instant case, by way of amendment, only a declaration of title is prayed for and

that the question of limitation does not arise as the petition was filed within eight years from the date of filing of the suit. Learned counsel for the

respondent relied on the decision in Suraj Prakash Bhasin Vs. Smt. Raj Rani Bhasin and Others, , wherein their Lordships have laid down the

principles regarding the amendment of pleadings:

The liberal principles which guide the exercise of discretion in allowing amendment are that multiplicity of proceedings should be avoided, that

amendments which do not totally alter the character of an action should be readily granted while care should be taken to see that injustice and

prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment, that one distinct cause of action should

not be construed for another and that the subject matter of the suit should not be changed by amendment. Applying these principles to the

amendment was rightly allowed. The plaintiff apparently sought the amendment realising that prolixity of litigation could be avoided and dissolution

of partnership could finally separate the parties and quantify the shares. Where there is delay, negligence, indifference or slipshoddiness on the part

of the party seeking amendment the court will award heavy costs against the party seeking amendment and in the present case the condition of

payment of costs has been imposed.

It is clear from the said decision that to avoid multiplicity of suits, amendment of pleadings can be allowed when there is no alteration or change of

the subject matter of the suit. Where is no there irreparable loss and injustice to the other party, amendment could be allowed. Even if there is any

delay, it can be compensated by costs. Learned counsel for the respondent then drew the attention of this court to the decision in Haridas Aildas

Thadani and Others Vs. Godrej Rustom Kermani, , where their Lordships of the Supreme Court have observed:

The Court should be extremely liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the

other side. A revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or

compelling circumstances. The test for allowing the amendment is to find whether the proposed amendment works any serious injustice to the other

side. In the present case the plaintiff sought by way of amendment to insert a relief for recovery of possession. Neither the nature of the suit was

altered nor any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arose.

The District Judge allowed the amendment having clearly found that the amendment would not cause any grave or serious prejudice to the

defendant. In the circumstances, the High Court erred in law in interfering in revision by reversing the discretionary order of the District Judge.

In the said cases the earlier decision in Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, , was followed. The said decision is in

all fours applicable to the facts of this case and supports the contention of the respondent. In Rajendran Prasad v. Kaustha Pathsala Allahabad and

others, 1981 Supp. SCC 56a , it was held that the amendment should have been allowed so that the dispute between the parties was decided

finally. As I have already said. I find much force in the contention of the learned counsel for the respondent that the quoting of wrong provision of

the Court Fees Act in the original plaint has no relevance with reference to a decision in the matter of amendment of plaint. After a careful analysis

of the entire materials, I find that the court below has exercised its discretion judicially and properly and the impugned order passed by the Court

below is perfectly legal and correct. The impugned order does not suffer from any infirmity and no interference is called for in this revision.

Consequently the revision fails and stands dismissed. There will be no order as to costs. The court below is directed to give top priority to the suit

in the matter of disposal, since it is part-heard and of the year 1976 and dispose of the same as expeditiously as possible, in any event within three

months from the date of receipt of the order copy and the records from this Court.