Pappammal @ A. Pappa Shankar (deceased) and Others vs Jebaselvi

R. Subbiah, J.—The present revision petition has been filed by the Defendants in O.S. No. 7817 of 2010 on the file of Additional District

Judge, Fast Track Court No. I, Chennai, aggrieved over the order dated 18.02.2011 in I.A. No. 710 of 2010, whereby the court below has

allowed the application filed by the Respondent/Plaintiff to amend the plaint.

Originally the Respondent herein filed the suit in C.S. No. 77 of 2009 before this Court for

(a) declaring the settlement deed dated 23.09.2008 executed by the 1st Defendant in favour of Defendants 3 and 4 registered as Document No.

3380 of 2008 in the office of Sub-Registrar, Anna Nagar is null and void and not binding on the Plaintiff so far as the half share of the Plaintiff in

the suit properties is concerned;

(b) declaring the settlement deed dated 06.10.2008 executed by the 1st Defendant in favour of 2nd Defendant registered as Document No. 3499

of 2008 in the office of Sub-Registrar, Anna Nagar is null and void and not binding on the Plaintiff in so far as the half share of the Plaintiff in the

suit properties is concerned;

(c) to pass a decree for partition and separate possession by dividing the suit schedule properties into two equal shares and allot = share to the

Plaintiff by its metes and bounds;

(d) for permanent injunction restraining the Defendants, their men, servants, agents, subordinates, henchmen or anybody claiming under or through

them from in any manner alienating or encumbering the suit schedule properties;

(e) for mandatory injunction directing the 5th to 7th Defendants to deposit the rent amount into this Court derived from item 1 of the schedule

mentioned property from the date of plaint till the disposal of the above suit; and

(f) for cost of the suit.

It is the case of the Plaintiff that 1st Defendant is her mother; the 2nd Defendant is her brother; Defendants 3 and 4 are the minor children of her

deceased brother Manoharan and the 5th Respondent is the widow of deceased Manoharan. Though the suit properties were purchased in the

name of her mother, the 1st Defendant, by two sale deeds dated 29.07.1992 and 29.04.1985, she had also contributed her money earned by

jointly preaching Christianity by singing Christian devotional songs in India and abroad. Therefore, she is entitled to half share in the suit properties.

The Defendants filed a written statement denying the plaint averments. Thereafter, the Plaintiff has taken out an application in O.A. No. 135 of

2010 restraining the 6th and 7th Defendants from paying the rent amount to the 5th Defendant (widow of deceased Manoharan) and

consequentially directing them to deposit the same derived from item No. 1 of the suit property regarding the Plaintiff''s share; but the application

was dismissed since the Plaintiff has not made a prayer for mesne profits. Subsequently, the said suit was transferred to the file of City Civil Court

and re-numbered as O.S. No. 7817 of 2010. Thereafter, the Respondent/ Plaintiff has filed an application in I.A. No. 71 of 2010 under Order VI

Rule 17 of CPC to amend the plaint and the same was allowed by the trial court by its order dated 06.12.2010. Aggrieved over the same,

Defendants 1 to 5 filed the revision petition in C.R.P. No. 4506 of 2010 and on 16.12.2010, this Court, by holding that the order dated

06.12.2010 was a non-speaking order, allowed the revision petition and set aside the order passed by the trial court and remitted the matter to the

trial court for fresh consideration. Thereafter, the impugned order came to be passed by the trial court by allowing the amendment application.

Challenging the same order, the present revision petition has been filed.

Learned Counsel appearing for the revision Petitioners/Defendants submitted that originally the suit was filed on the allegation that the suit

properties were purchased out of joint earnings of 1st Defendant and the Respondent and therefore, she is entitled to half share and thus, she

prayed for declaration that the settlement deed executed in favour of the 2nd Defendant as null and void. But, in the application taken out by the

Plaintiff for amendment, she has changed the entire cause of action contending that after filing the suit, the 2nd Defendant threatened the 1st

Defendant and executed another settlement deed dated 12.12.2008 by way of cancelling the earlier settlement deed dated 06.10.2008 in his

favour and he, with a mala fide and greedy intention to achieve an ulterior motive, fabricated the said document and got the signature from the 1st

Defendant by way of coercion and threat. Hence, the learned Counsel for the revision Petitioners submitted that in the amendment application the

Plaintiff stated that the brother got the settlement by way of coercion and threat. Moreover, the amendment petition was filed after the demise of

her mother. Under such circumstances, if the amendment application is allowed, it would amount to total change in cause of action and the revision

Petitioners would be put to irreparable loss and hardship since the mother is not alive to deny the new allegations introduced in the amended

application. Further, in the amended application, the Plaintiff wanted to introduce the prayer of mesne profits. Under such circumstances, the

amendment application is liable to be set aside.

Per contra, the learned senior counsel for the Respondent/Plaintiff submitted that the amendment sought to be made would not change the cause

of action. In fact, there is a prayer for partition in the plaint. By introducing these allegations, the prayer is not going to be altered. Moreover, after

filing the suit, the 2nd Defendant by cancelling the earlier settlement deed dated 06.10.2008, obtained a new settlement deed dated 12.12.2008

from his mother by coercion and threat. Therefore, the amendment by substituting the earlier settlement deed with subsequent settlement deed

dated 12.12.2008 is must; otherwise, it would cause great hardship to the Plaintiff. In support of his contentions, the learned senior counsel has

relied upon the decision reported in Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, .

On a perusal of the records, I find that originally the Plaintiff sought for declaration of settlement deeds as null and void stating that she and her

mother (the deceased 1st Defendant) by singing Christian devotional songs and releasing Christian songs cassettes, acquired lot of income and by

which, they purchased the properties in the name of her mother. Therefore, she is entitled to half share in the suit properties. In the plaint

averments, absolutely no allegation was made with regard to the threat made by his brother in obtaining the settlement deed. But, after the demise

of the mother, the Plaintiff has come forward with a new case that the 2nd Defendant fabricated the settlement deed and obtained the signature of

mother by coercion and threat. When the earlier allegations speak about her entitlement of half share in the suit properties, the amendment sought

to be made speaks about the way of settlement deed obtained by the 1st Defendant. In my considered opinion, the amendment sought to be made

is totally contrary to the earlier allegations made in the plaint and certainly it would amount to introduce a new cause of action. Moreover, the fresh

allegations found in the application for amendment speak about the subsequent event after filing of the suit. As contended by the learned Counsel

for the Petitioners, if the amendment is allowed, definitely the revision petitions would be put to irreparable loss since the 1st Defendant is not alive

to deny the allegations sought to be amended in the plaint.

In this regard, a reference could be placed in the judgment relied on by the revision Petitioners in Chinnakkal Vs. Marakkal, Arumugam,

Sennimalai and Palanichamy, and the relevant paragraphs are extracted hereunder:

The suit was originally filed for permanent injunction. Now, by the proposed amendment the Plaintiff seeks to amend the plaint for mandatory

injunction. The Court is now called upon to adjudicate an entirely different case, instead of original case. Holding that, it would not be proper to

accept such an application for amendment introducing a new case, in a decision reported in M.S. Karuppusami Vs. Saravana Devei @

Vasanthamani, Manickam, Dhanamani, Chithambaram, Subulakshmi and Balasubramaniam, this Court has held:

It is settled law that the pleading could only be amended if it is to substantiate the pre-existing facts already contained in the original pleadings.

Under the guise of amendment a new cause or a case cannot be substituted. The Courts cannot be asked to adjudicate an entirely different case

instead of the original case. Though it is expedient under certain circumstances to take consideration of the supervening facts in the course of a

litigation, it would hazardous to accept such an application for amendment of the plaint for introducing a new a cause of action which was never

thought of earlier and which is diametrically opposite to that stated in the original plaint.

The learned District Munsif has rightly taken note of the conduct of the Plaintiff in the repeated filing of the amendment applications. The suit is

of the year 1994. The proposed amendment had been sought for after the filing of the written statement, where the Defendants have set forth their

defence plea. There is no bona fide in the amendment application The impugned order declining the amendment does not suffer from any material

irregularity warranting interference. This revision has no merits and the same is bound to fail.

The dictum laid down in the above judgment would reveal that the plaint could only be amended to substantiate the pre-existing facts already

contained in the original pleadings and under the guise of amendment, a new cause or a case cannot be substituted. But, in the instant case, the

allegations made in the affidavit filed by the Respondent for amending the plaint would show that she wanted to introduce a new case, totally

contrary to the earlier pleadings. Under such circumstances, I am of the view that the court below ought not to have allowed the application.

Though the judgment was relied on by the learned senior counsel for the Respondent that only if the amendment defeats the law of limitation, the

same cannot be entertained and in the instant case, the application for amendment is filed within the period of limitation and that when that being so,

no infirmity could be found. But I am not inclined to accept the submission of the Respondent. In the instant case, though the amendment does not

defeat the law of limitation, the said application is liable to be rejected on the ground that since it is an attempt on the part of the Plaintiff to change

the cause of action by introducing a new allegation. In my considered opinion, by the fresh allegations, the Respondent is trying to redraft the entire

plaint and as such, the same cannot be allowed.

For the foregoing reasons, the civil revision petition is allowed and the impugned order passed by the trial court is set aside. No costs.

Connected M.P. is closed.