Pappa and Others vs K.R. Rangasamy Gounder and Others

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

17.04.2003 in I.A.Nos.1434 to 1436 of 2001 in O.S. No. 700 of 1984, dismissing the Petitions filed for Amendment seeking to amend the

Survey Number in the Plaint, Preliminary Decree, and Final Decree. The Plaintiffs are the Revision Petitioners.

Suit O.S. No. 700 of 1984 was filed by the Plaintiffs for Partition of their 1/5th share in the Suit Properties. The Suit was decreed and

Preliminary Decree for Partition was passed. Final decree was also passed. To execute the Final Decree and for division of the properties E.P.

No. 287 of 1997 was filed.

When Amin had gone to the spot, Survey Number for Item No. 1 viz., S. No. 290/1 was found to be wrong. Hence, I.A.Nos.1434 to 1436 of

2001 were filed to correct the Survey Number in Item No. 1 of the Suit Property as S. No. 445/49 instead of S. No. 290/1.

Applications were resisted by the Respondents / Defendants contending that S. No. 290/1 cannot be amended as S. No. 445/49. It was further

alleged that the amendments sought for twelve years after the Judgment is highly belated and if the proposed Amendment is allowed would

prejudicially affect the rights of the Defendants.

Upon consideration of the averments in the Affidavit and in the Counter Statement, the lower Court dismissed the Applications finding that the

Amendment Applications were filed long after passing of the Preliminary Decree and passing of the Final Decree. It was further held that the

proposed Amendment if allowed would prejudicially affect the rights of the Defendants accrued over years.

Aggrieved over the order of dismissal of the Amendment Petitions, the Plaintiffs have preferred these Civil Revision Petitions. Assailing the

impugned order, learned counsel for the Revision Petitioners has submitted that when there is error in the description of the property, the same

could be corrected at any stage. Placing reliance upon the decision reported in R. Srinivasan Vs. M. Thambusamy, learned counsel has submitted

that the error could be corrected at the time of Execution. It is further submitted that if the Amendment is not allowed, the very purpose of the

Decree would be defeated and urged to allow the Amendment to correct the Survey Number of Item No. 1.

Countering the arguments, pointing out that the Applications have been filed more than 12 years after passing of the Preliminary Decree, learned

counsel for the Respondents has urged that if the Amendment is allowed, it would defeat the valuable rights of the Defendants accrued over the

years. It is further submitted that the right accrued to the Defendants would be upset by the proposed Amendment. The Amendment is also

attacked on the ground of unconscionable delay. Drawing the attention of the Court to the Affidavit, learned counsel has submitted that no

satisfactory reasons have been stated as to how the mistake crept in and how they came to know about the correct Survey Number. It is also

submitted that no materials are produced by the Plaintiffs correlating the new S. No. 445/49 with the old S. No. 290/1.

Upon consideration of the submissions of both sides, Impugned Order and other materials on record, the points that arise for consideration are :

Whether the Amendment of Survey Number sought for at the stage of Execution proceedings could be permitted and whether the Impugned

Order, refusing the Amendment suffers from any jurisdictional error warranting interference.

The proposed Amendment seeking to amend the Survey Number in Item No. 1 is S. No. 445/49 instead of S. No. 290/1. For better

understanding of the contentious points, certain dates are relevant to be noted:-

Suit O.S. No. 700 of 1984 .... Filed in 1984

Preliminary Decree .... 06.10.1988

Final Decree .... 20.11.1995

Execution Proceedings in

E.P. No. 282 of 1997 .... Filed in 1997

Amendment Petition filed .... 30.01.2001

By and large, an Amendment for correction of the erroneous description of the property in respect of the Survey Numbers and the area will

not alter the nature of the Suit. Where the property remains the same, the Amendment correcting the Survey Number of the Suit Property can be

allowed. In this case, it is submitted that the Four boundaries of Item No. 1 is not sought to be amended; but only, the Survey Number with Four

boundaries intact. The proposed Amendment sought for, though appears as a simple Amendment of Survey Number, it is not as simple as put

forth by the Revision Petitioners. The Amendment sought for is to correct the S. No. 445/49 instead of S. No. 290/1. No materials are produced

correlating both the Survey Numbers. Though the boundaries are same, the Amendment of Survey Number as S. No. 445/49 materially affects the

Suit. Hence, the Amendment to correct the description of the Survey Number cannot be ordered.

Generally speaking, all amendments ought to be made ""for the purpose of determining the real question in controversy between the parties to

any proceedings or of correcting any defect or error in any proceedings. All amendments of the pleadings should be allowed which are necessary

for determination of the real controversies in the suit. In this case, the controversy between the parties has already been determined. There is no

more lis pending between the parties. While so, the Amendment of the Survey Number is not necessitated for the determination of the

controversies between the parties.

On the doctrine of relation back, which generally 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, .

When the Amendment so relates back to the date of filing of the Suit, can the Amendment be allowed after 12 years during which substantial

right might have been accrued to the parties is the point involved. In cases where there is delay in making the Application for Amendment, the mere

delay is not a ground for refusal of the Amendment. Allowing Amendment is a discretionary matter. The Amendment at a later stage is not to be

granted as a matter of course. The Court must bear in mind whether such amendment filed with delay is necessary for full and complete justice.

Generally, mere delay in making the Amendment Application is not enough to refuse the Amendment in cases where the opposite party could be

compensated by costs. But where the proposed Amendment is highly belated likely cause hardship to other party, the same cannot be allowed. In

this case, the parties have gone through the entire process of trial. The Plaintiffs have not chosen to file the Petition at the earlier stage. The prayer

for Amendment at the Execution stage cannot be ordered.

In the Trial Court as well as in this Court, reliance has been placed upon the decisions reported in R. Srinivasan Vs. M. Thambusamy, . In the

said case, suit was for Recovery of Possession and Survey Number of the Suit Property was wrongly given in the Plaint. On Application filed u/s

152 C.P.C, the Survey Number of the Suit Property was ordered to be corrected. In the said decision, it was observed that

...Section 152 C.P.C application is maintainable even to correct clerical or arithmetical errors in the Plaint. Decree obtained for particular Survey

Number can be corrected at the time of Execution....

In the case in hand, the Survey Number sought to be corrected is not a mere typographical error or clerical mistake; but a substitution of a new

survey number. Hence, the observations in the above decision cannot be applied to the case in hand.

The Court may allow the Amendment only if it does not cause prejudice to the other side. No Amendment should be allowed, which amounts

to defeating the legal right accrued to the opposite party by lapse of time. The Preliminary Decree was passed even in 1988; Final Decree in 1995.

Over the years, substantial right might have been accrued to the Defendants over the Suit Property - Item No. 1. The same cannot be allowed to

be defeated by ordering change of Survey Number.

Contending that the Amendment filed at the later stage cannot be allowed to defeat valid right of the Defendants, learned counsel for the

Respondents has relied upon the decision of the Supreme Court reported in PUNJAB NATIONAL BANK V. INDIAN BANK AND ANR.

2003 (4) L.W. 347 wherein it has been held that,

....An Amendment would generally not be disallowed except where a time barred claim is sought to be introduced or where it changes the nature

of the suit itself or it is malafide or the other party cannot be placed in the same position had the Plaint been originally filed correctly and the other

side has lost right of a valid defence by subsequent amendment....

Thus, it has been clearly held that the Amendment could be disallowed when the effect of the same would take away from a party a legal right

which had accrued to him by lapse of time. It is all the more so, when such relief is sought for by way of Amendment after number of years.

Though the Amended Code has no application to the case in hand, we may mention about the Proviso to Order VI Rule 17 C.P.C added by

the Amendment Act and the object behind the Amendment. By C.P.C. Amendment Act 1999, a new Proviso has been added to the rule viz., that

no Application for Amendment of the Pleadings shall be allowed after the Trial has commenced unless 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. The object of the Amendment is to

restrict such filing of the Amendment Applications after the commencement of the Trial to delay the proceedings. Though the amended C.P.C is

not applicable to the case on hand, the spirit and the object of the Amendment is to be borne in mind.

In exercising the power under the Revisional Jurisdiction, the High Court would not interfere with the order unless it suffers from jurisdictional

error. In declining permission to amend the Survey Number, there is no improper exercise of discretion nor is there any jurisdictional error. This

Revision has no merits and is bound to fail.

Therefore, the order dated 17.04.2003 passed by the District Munsif, Gobichettipalayam in I.A. Nos. 1434 to 1436 of 2001 in O.S. No. 700

of 1984 is confirmed and these Civil Revision Petitions are dismissed. In the circumstances of the case, there is no order as to costs.