Ramakrishnappa vs Venkatsamy and Others

A.C. Arumugaperumal Adityan, J.—This Civil Revision Petition has been filed by the plaintiff in O.S. No. 505/88 on the file of the District

Munsif, Hosur. The plaintiff, who has lost the suit before the trial Court has preferred A.S. No. 23/2002 against the decree and Judgment in O.S

505/1988, before the Sub-Court, Hosur. While the appeal was pending, the appellant/plaintiff had filed I.A. No. 49/2003 under Order 6 Rule 17

to amend the pleadings. The learned Sub-Judge, after considering the contentions of both the learned Counsel for the plaintiff and learned Counsel

for the Defendants has passed a well considered order dismissing the I.A. No. 49/2003 on the ground that after the amendment of CPC under Act

22/02, the petition for amendment is not maintainable and if the amendment is allowed that will change the nature of the case and introduce a new

cause of action. The said order is being challenged before this Court in Revision.

According to the plaintiff, in respect of the Suit property S. No. 114 there was an oral partition between the predecessor''s in title and the 1st

Defendant had purchased a portion of the property in S. No. 114 and the partition was effected among four brothers, namely, Chinnanna,

Rangappa and Narayanappa and one Munusamy. Except Munusamy other three brothers got major portion in S. No. 114 towards their

respective shares. Narayanappa got a separate patta under patta No. 343 for S. No. 114/1 measuring Hec. 0.44.0 and chinnanna and Rangappa

got separate patta under patta No. 842 in S. No. 114/3 measuring Hect. 0.57.0. Rangappa alone was in exclusive possession in S. No. 114/2

patta No. 916 measuring Hect. 0.41.0. According to the plaintiff, Narayanappa and Munusami, son of Ramiaha along with one Muniappa son of

Achappa got joint patta because the said Muniappa son of Achappa purchased some portion in S. No. 114 so for the portions purchased by 1st

Defendant, he did not got any patta, whereas Chinnanna, Rangappa, Narayanappa and Munusami got their patta. So, according to the plaintiff, the

sale by Rangappa infavour of the plaintiff is valid, atleast to the extent of half share in S. No. 114/3, because the joint patta stands in the names of

Chinnanna and Rangappa. This was one of the amendment sought for in the said petition(I.A. No. 49/2003).

The learned Sub-Judge, after going through the rival contentions of the parties has observed in his order that the suit is of the year 1988 and the

plaintiff/petitioner had filed this petition under Order 6 Rule 17 in the year 2003 i.e. after a lapse of 15 years and if this amendment is allowed that

will cause hardship to the Defendants, who are in possession of the suit property for more than 12 years and that if the amendment sought for is

allowed, that will hit the Article 3, 64 and 65 of the Limitation Act.

The learned Counsel for the petitioner vehemently contended that after the amendment of Order 6 Rule 17 CPC under Act 22/2002, the new

plea sought to be introduced will in no way prejudice the right of the opposite party and hence the amendment can be allowed. For this

proposition, the learned Counsel for the revision petitioner relied on a case reported in 2004(3) MLJ 587 (L. Narayan Reddy v. P. Narayana

Reddy and Ors.). The facts of the said case are that the plaintiff filed a suit for specific performance of contract seeking direction to the defendants

to execute a sale deed in respect of some immovable properties. According to the revision petitioner/plaintiff, the first Defendant had agreed to sell

the suit property on his behalf and on behalf of his minor and in pursuance of the same, he had also executed a sale agreement in his favour

agreeing to sell the property for a sum of Rs. 1,50,000/- In the mean time, the first Defendant had filed O.S. No. 39/1996 before the District

Munsif, Hosur, and due to the pendency of the said suit, according to the plaintiff, he could not complete the sale transaction and because of the

said suit the plaintiff could not file a suit for specific performance of contract. After framing the issues in O.S. No. 39/1996, the trial has been

commenced and P.W.1 was examined and at that stage, the plaintiff has filed I.A. No. 452/2003 in order to introduce certain amendments

contending that the proposed amendment is in the nature of clarificatory statement based on subsequent sub-division of suit property as well as on

the basis of subsequent withdrawal of previous suit, filed by the first Defendant and in order to meet the ends of justice and to decide the case once

for all finally, the proposed amendments were considered as absolutely necessary. According to the plaintiff therein, the said amendment

application was resisted by the Defendants stating that in view of the amendment in CPC, the petition for amendment is not maintainable. The

learned Sub-Judge, Hosur, held that the petition is not maintainable and accordingly dismissed it on 31.10.2003. Aggrieved by the said order, the

plaintiff had preferred a revision. While allowing the revision this Court has observed as follows:

Thus it is seen, some of the provisions omitted in Order 6, some of the provisions inserted or substituted by Amended CPC shall not apply to in

respect of any pleading filed before the commencement of implementing the amended provisions. In this case, admittedly, the suit was filed in the

year 1996, i.e., before the amendments introduced under Act 22 of 2002 and in this view of the matter, I am of the consider opinion the proviso

cannot be an impediment or bar in allowing the amendment application, if it otherwise deserves on merit to be allowed, on the basis that the trial

has been commenced and therefore, no amendment shall be allowed after commencement of the trial.

The amendment sought for in the case cited above is only by way of a clarificatory statement and already there was pleading to that effect in the

plaint and by way of caution the plaintiff wanted to introduce certain amendments in the nature of clarificatory statement based on subsequent

subdivision of the suit property as well as on the basis of subsequent withdrawal of the previous suit. That is not the case herein. Here in the first

appeal, the plaintiff after an lapse of 15 years from the date of filing of the suit has come forward with a petition under Order 6 Rule 17 for

amending the pleadings in the plaint and it is not in the nature of clarificatory statement as in the case mentioned above. In the written statement

itself, the plaintiff has stated that the predecessors in title, namely, Chinnanna and Rangappa, have partitioned the property originally in the years

194 8 itself and that the entire 2.15 acres in S. No. 114 was purchased by the Defendants by way of sale deed dated 30.08.1960 and they are in

possession and enjoyment of the property from that date onwards. The learned Sub-Judge, while dismissing the amendment application has

followed the dictum in 2001 (2) CTC 705 (L.M.s.Gani Mohamed & Company, Chennai v. Singapore Airlines Limited and Anr.), 1998 CTC 176

Alagumalai Moopanar v. Subbiah and two Ors.) and Vinod Kumar Arora Vs. Surjit Kaur, , wherein it has been held that plea in Second Appeal

to pass decree for half share may not be justified and plaintiff''s cannot abandon their own case and claim relief based on defendant''s case that too

before appellate Court.

The learned Counsel appearing for the plaintiff/revision petitioner herein would contend that already there is a pleading in the plaint to the effect

that the plaintiff has right title and possession over the suit property. But, the pleading relating to the previous partition between the predecessors in

title in respect of S. No. 114 was not pleaded in the plaint. But, the Defendants have filed written statement contending that his predecessors in title

partitioned their share in the year 1960 itself. Only after seeing the pleadings in the written statement, the plaintiff has come forward with this

application that to in the first appeal before the Sub-Court. The learned Counsel for the revision petitioner has also relied on the decisions reported

in 2002(2) Sup 149 (Fritz T.M. Clement and Anr. v. Sudhakaran Nadar and Anr.), Harcharan Vs. State of Haryana, , Shri Lakhi Ram (Dead)

Through Lrs. Vs. Shri Trikha Ram and Others, , 2002(1) LW 415 (Viswanathan v. Ramakrishna Chettiar), 2002(4) CTC 257 (Ramaswamy and

12 Ors. v. Pappammal) and unreported judgement of this Court in C.R.P.979 of 2003 dated 27.4.2005. The above cited cases are relating to the

period before The Act 22 of 2002 came into force.

The learned Counsel for the revision petitioner also relied on a decision reported in 2005(3) CTC 321 (Rethinama @ Anna Samuthiram Ammal

v. Syed Abdul Rahim) and contended if there is any pleading available before 1.7.2002, then it will not be governed by Act 22 of 2002 and there

cannot be two opinion with regard to the said proposition of law. But, here the plaintiff has filed I.A.49/2003 in A.S. No. 23 /2002 only in the year

2003, since there is no pleadings in the plaint by way of amendment under Order 6 Rule 17, the plaintiff wants to putforth a new pleading as stated

in the petition. If this pleading is allowed, it will definitely change the character of the suit and it will also hit by Article 3, 64 and 65 of Limitation

Act as correctly observed by the learned Sub-Judge in his order dated 2.2.2005. I do not find any reason to interfere with the orders of the

learned Sub-Judge, which in my considered opinion does not warrant any interference from this Court.

In the result, the Civil Revision Petition is dismissed confirming the order passed in I.A. No. 49/2003 in A.S. No. 23/2002 on the file of the

Sub-Court, Hosur. The learned Sub-Judge, is directed to dispose of the matter within six weeks from the date of receipt of copy of this order. No

costs. Consequently, connected CMP is also dismissed.