Palaniammal vs V.K. Ramanathan and Others

A.S. Venkatachalamoorthy, J.—Plaintiff in O.S. 117 of 2001 on the file of District Munsif, Namakkal filed an application in I.A. No. 413 of

2001 under Order 6 Rule 17 read with Section 151 of Code of Civil Procedure. The learned District Munsif dismissed the said application by an

order dated 14.9.2001. The aggrieved plaintiff has preferred the above revision petition against the said order.

The petitioner/plaintiff filed the suit in O.S.117 of 2001 on the file of District Munsif Court, Namakkal contending that she took the suit property

on lease from the first defendant for the period from 1.1.1979 to 31.12.1998 and as per the terms of the agreement, the plaintiff was permitted to

put up super structure. The claim of the plaintiff is that she put up certain building and shops in the suit property and got electricity connection also

and that apart, the Municipal assessment too stands in the name of the plaintiffs husband by name Palaniyandi. The plaintiff produced property tax

receipts and also water tax receipts. The further claim of the plaintiff is that even after the lease period, she would be entitled to be in possession of

the property by virtue of the provisions of the Tamil Nadu City Tenants Protection Act. As there was interference by the first defendant, she filed

the suit in O.S.637 of 1998 and also obtained interim injunction in I.A. No. 999 of 1998. When the second defendant came out with a plea that he

has purchased the property and also threatened to interfere the possession and enjoyment by the plaintiff, she filed a second suit against the second

defendant in O.S.527 of 1999. Thereafter in June 2000, third defendant issued notice to the plaintiff claiming to be the absolute owner by virtue of

decree obtained for specific performance in O.S.568 of 1999 again on the file of the same Court. The 4th defendant viz., the Municipality, ignoring

the telegram sent by the plaintiff wherein the plaintiff informed about the pendency of the suit against the second defendant viz., O.S.527 of 1999,

effected mutation of municipal assessment in the name of the second defendant without any enquiry and without hearing plaintiff. In the suit, plaintiff

sought for declaration that the proceedings of the 4th defendant/Municipality in changing the house tax assessment from the plaintiff''s husband''s

name to the second defendant is invalid, arbitrary and also prayed for mandatory injunction to restore the tax assessment in the name of plaintiff''s

husband.

The first defendant in the suit filed written statement contending that the lease period was over even way back in the year 1998 and that the

plaintiff had put up only some temporary structure and in fact the second defendant is the owner of the suit property. Even according to the first

defendant, he was only in possession of the property and not the owner. There is yet another plea that the plaintiff has been colluding with the third

defendant and in fact the decree in O.S.568 of 1999 was obtained collusively.

Pending suit plaintiff filed I.A. No. 413 of 2001 contending that in view of the subsequent development, plaint has to be suitably amended. In the

affidavit in support of the petition it has been stated that when the suit was pending, 4th defendant at the instigation of defendants 1 to 3 has

disconnected the water supply and hence the prayer for mandatory injunction to restore the water supply has also to be included in the plaint.

The second respondent/second defendant resisted the said application contending that the amendment sought for by the petitioner/plaintiff

varies, changes and alters the cause of action and subject matter of the suit. According to the second defendant/second respondent, even before

filing of the suit i.e., on 21.12.2000, the water service connection was changed in the name of second defendant/second respondent and the

disconnection was only thereafter that was on 20.3.2001. It is also the contention of the second respondent that so long as the change of water

service connection in the name of second defendant which was on 21.12.2000 has not been questioned, the present prayer viz., to restore the

water supply connection cannot be granted.

The learned District Munsif after considering the claims of the respective parties, dismissed the application on the ground that in the plaint, the

plaintiff has not asked for any relief with reference to the water supply and the present cause of action put forward by the plaintiff is totally new one

and further there is no connection between the reliefs that is sought for in the plaint and the present one mentioned in the application. Being

aggrieved by the said order, plaintiff has preferred the present revision petition.

On the rival contentions made, the following questions/issues arise for consideration.

What should be the court''s approach in considering the application for amendment ?

Whether the Court can go into the truth or falsity of the case before allowing amendment and whether the Court can give finding on the

amendment sought for ?

3.Whether by seeking an amendment plaintiff is putting forth totally a new case and rather substituting one distinct cause of action for another ?

In case the petition is allowed whether the defendants would be put to hardship and whether the same can be compensated by money ?

Time and again the Supreme Court of India has laid down that the power to allow the amendment is wide, but however the same cannot be

claimed as a matter of right and under all circumstances and that the Courts while deciding such prayers should not adopt a hyper technical

approach but on the other hand should adopt liberal approach particularly in cases where other side can be compensated with costs. Technicalities

of law should not be permitted to hamper the administration of justice between the parties. Amendments are allowed in the pleadings to avoid

multiplicity of litigation. Similarly all amendments of the pleadings should be allowed which are necessary for determination of the real controversies

in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or

defence taken. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs and no

amendment should be allowed which amounts to or results in defeating a legal right accruing to the opposite party on account of lapse of time.

The Supreme Court laid down the above principles in the ruling reported in B.K.N. Narayana Pillai Vs. P. Pillai and Another, and after

considering plethora of decisions right from the year 1921. In fact this view or the Supreme Court was again confirmed by a recent ruling of the

Supreme Court in Ragu Thilak D. John Vs. S. Rayappan and Others, the Supreme Court ruled as under,

The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on

new case or cause of action is barred: Weldon v. Neal, 1887 19 QBD 394. But it is also well recognised that where the amendment does not

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

same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See Charan Das v. Amir Khan, AIR 1921 PC

50 and L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., .

The principal reasons that have led to the rule last mentioned are, first, that the object of courts and rules of procedure is to decide the rights of the

parties and not to punish them for their mistakes Cropper v. Smith, 1884 (26) CHD 700 and secondly, that a party is strictly not entitled to rely on

the statue of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be

amended Kisandas Rupchand v. Rachappa Vithoba Shilwant, ILR 1909 (33) Bom 644 approved in Pirgonda Hongonda Patil Vs. Kalgonda

Shidgonda Patil and Others, .

The expression ''cause of action'' in the present context does not mean ''every fact which it is material to be proved to entitle the plaintiff to

succeed'' as was said in Cooke v. Gill, 1873 (8) CP 107 in a different context, for if it were so, no material fact could ever be amended or added

and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means,

a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation, Ltd. 1962 (2) All

ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ''new case'' have been

understood to mean ''new set of ideas'': Dornan v. J.W. Ellis and Co. Ltd. 1962 (1) All ER 303 . This also seems to us to be a reasonable view to

take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.

And this was again confirmed by the Supreme Court in the ruling reported in B.K.N. Narayana Pillai Vs. P. Pillai and Another, the Supreme Court

ruled that even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate

steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions and that the

error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

In yet another case reported in Estralla Rubber v. Dass Estate (P) Ltd., 2001 (7) Sup 53 the Supreme Court observed as under,

Merely because there was delay in making the amendment application, when no serious prejudice is shown to have been caused to the plaintiff so

as to take away any accrued right, the application could not be rejected.

Also see (1) L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , the Supreme Court ruled thus,

If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment

is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as

is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We

feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the

amendment prayed for.

Coming to the present case, the plaintiff first filed the suit against the first defendant in O.S.637 of 1998 on the file of District Munsif Court,

Namakkal and then another suit against the second defendant in O.S.527 of 1999 and finally filed the present suit. In all the three suits, the

property involved and the rights claimed by the plaintiff are virtually same. In the plaint originally filed in this present suit, i.e., in O.S.117 of 2001,

the plaintiff sought for a declaration that the proceedings of the 4th defendant/Municipality changing the house tax assessment in the name of

second defendant is invalid and arbitrary. Thereafter, the water service connection was disconnected by the Municipality on 20.3.2001. The

second respondent would resist the claim contending that the amendment cannot be allowed as the plaintiff has come forward with new cause of

action and also seeking new relief and these reliefs have nothing to do with the earlier reliefs already sought for. It is also claimed that even before

filing the suit the water service connection was changed in the name of the second respondent and even without questioning the correctness of the

same the relief now sought for cannot be considered or granted.

Firstly it has to be pointed out that the Courts cannot go into the truth or falsity of the claim made in the application and it cannot give finding on

merits of the case without first allowing the amendment and framing issues. That being so, there is no substance in this contention raised by the

second respondent.

The next question is what is the nature of amendment that is sought for, whether petitioner has come forward with a new case on the basis of

new cause of action or it is something in the nature of ancillary or incidental or consequential in view of the subsequent developments.

The suit was filed on 23.2.2001. In the amendment petition, the plaintiff wants to include further prayer viz., for mandatory injunction directing

the 4th defendant/Municipality to restore the water service connection. It is not the case of the second respondent that even on that day, plaintiff

was aware about the change of water service connection in his name on 21.12.2000. The order changing water service connection in the name of

second defendant can only because of and pursuant to the change of property tax assessment in the name of the second defendant/second

respondent. Or in other words, but for the change in the property tax assessment in the name of second defendant, 4th defendant/Municipality

would not have passed the order changing the water service connection in the name of second defendant. In these circumstances, the relief that is

sought for can be said to be only in the nature of ancillary and incidental to the relief that has already been sought for in the plaint. Certainly it

cannot be said that the plaintiff has come forward with a new case on the basis of new cause of action. The courts can certainly in considering the

application for amendment can take note of the subsequent events. In fact, the Supreme Court in the ruling B.K.N. Narayana Pillai Vs. P. Pillai

and Another, wherein the Court held that the amendment should be allowed when the same are in the nature of promoting the ends of justice and

not for defeating them and that all amendments of the pleadings should be allowed which are necessary for determination of the real controversies

in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or

defence taken.

To sum up the legal position,

(1) The power to allow amendment is wide and hence the Court should not adopt hyper technical approach but on the other hand liberal approach

should the the general rule particularly in cases where the other side can be compensated with costs.

(2) The general rule is that the party is not allowed to set up new case or new cause of action.

(3) Technicalities of law should not be permitted to hamper the administration of justice between the parties and amendments are allowed in the

pleadings to avoid multiplicity of litigation.

(4) Courts cannot go into the truth or falsity of the proposed amendments sought for at the time of considering the application for amendment.

(5) All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the

proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.

(6) All reliefs ancillary to main relief and reliefs which are in the nature of additional reliefs should be allowed as general rule.

(7) Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed but however, the party who is

put to inconvenience should be suitably paid. The Court has to only see that the error is not incapable of being rectified so long as remedial steps

do not unjustifiably injure rights accrued.

(8) The delay in filing petition for amendment should be properly compensated by cost and the error or mistake, if not fraudulent, should not be

made a ground for rejecting the application for amendment of plaint or written statement.

In the result, the revision petition is allowed. The order of the District Munsif, Namakkal dated 14.9.2001 in I.A. No. 413 of 2001 in O.S.117

of 2001 is hereby set aside. There will be no order as to costs. Connected C.M.P.22660 of 2001 is closed.