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Judgment
K. Venkataraman, J.—The present revision is directed against the order allowing the application preferred by the Respondent made under
Order VI Rule XVII of the Code of Civil Procedure.
The Defendants in O.S. No. 96 of 1990 before the learned District Munsif, Puducherry, are the Petitioners herein and the Plaintiff thereon is the
Respondent herein.
In a suit filed by the Respondent against the Petitioners for permanent injunction restraining them from interfering with his peaceful possession
and enjoyment over the suit property, an application came to be filed by the Respondent in I.A. No. 290 of 2002 for amendment of the plaint
incorporating the prayer for declaration. The said application came to be allowed by the Court below and the present revision is directed against
the said order.
Mr. C.Raghunatha Reddy, learned Counsel for the Petitioners strenuously contended that the suit has been filed in the year 1990 and such an
application for amendment came to be filed in the year 2002 and that too, when in the written statement and in the additional written statement it
has been pleaded by the Petitioners that the suit for bare injunction is not maintainable and only a declarative suit has to be filed. He has also relied
on the decisions reported in Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and Ors. (2007) 4 MLJ 378 (SC), Chinnakkal Vs.
Marakkal, Arumugam, Sennimalai and Palanichamy, , Revajeetu Builders and Developers v. Narayanaswamy & Sons and Ors. (2010) 2 LW 917
and Kumaraswami Gounder and Others Vs. D.R. Nanjappa Gounder (dead) and Others, .
Thus, citing those decisions, the learned Counsel for the Petitioners submitted that the Court below ought not to have allowed the application
filed by the Respondent under Order VI Rule XVII Code of Civil Procedure.
Before adverting to the said contention of the learned Counsel for the Petitioners, it has to be seen what was the averment made in the affidavit
filed in support of the application for amendment. In the affidavit filed in support of the application for amendment, the Respondent herein has
stated that the third Defendant has constructed a wall and window on the north eastern side of the wall on and from 07.12.2000 during the
pendency of the suit. He was asked why such a construction is being put up. He has done so willfully disobeying the grant of order of injunction in
favour of the Respondent. It has further stated that the third Defendant who represents other Defendants had already encroached a portion of the
property during the pendency of the suit. In view of the same, it has necessitated the Respondent herein to file an application under Order VI Rule
XVII Code of Civil Procedure. On the above backdrop of the matter it has to be seen whether there is any justification on the part of the
Respondent herein to file an application for amendment of the pleadings and whether it is a belated one. If the statement made in the affidavit filed
in support of the application was that such encroachment or construction was put up immediately after filing of the suit or at least immediately after
filing of the written statement, one can understand that the application has been filed belatedly by the Respondent herein. As stated already, it has
been pleaded by the Respondent herein that the construction has been put up and encroachment has been made after filing of the suit, that too, in
the year 2000. In such circumstances, it has to be seen whether such encroachment was made after the suit and such construction was made after
the suit. It is a common knowledge that while deciding the application for amendment the merits of the amendment cannot be discussed. It has to
be seen only at the time of trial.
One more aspect that has to be seen in the present case is that the Respondent herein has taken out an application for amendment before the
trial had started. Order VI Rule XVII CPC makes it very clear that the amendment can be allowed at any stage of the proceedings. It would be
useful to reproduce Order VI Rule XVII CPC and the same is extracted hereunder:
Amendment of pleadings.-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and
on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in
controversy between the parties:
Provided that No. application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite
of due diligence, the party could not have raised the matter before the commencement of trial.
However, the proviso contemplates that No. such application shall be allowed after the trial has commenced unless the Court has come to the
conclusion that in spite of due diligence the party could not have raised the matter before commencement of the trial. There are two aspects in this
case. One is that the Respondent herein has filed the application for amendment before the trial has commenced. Consequently, the reasons have
been set out in the affidavit filed in support of the application that such amendment has necessitated in view of the happenings after filing of the suit.
As far as the proviso to Order VI Rule XVII CPC is concerned, it shall have an effect only in case an application has been filed for amendment
after the trial has commenced. As stated already, the trial has not commenced in the present case.
Now, the judgments cited by the learned Counsel for the Petitioners requires for consideration.
In Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi and Ors. (2007) 4 MLJ 378 (SC), the Honourable Apex Court has held that even
though the trial Courts are empowered to allow the application under Order VI Rule XVII CPC at any stage of the suit, when an application was
filed for amendment with an extraordinary delay without any explanation, it has to be rejected. As far as the present case on hand is concerned
though the suit has been filed in the year 1990 and the application has been filed under Order VI Rule XVII CPC in the year 2002, it has been
clearly spelt out by the Respondent herein that subsequent to the filing of the suit i.e., in the year 2000, there was an encroachment and
construction which has necessitated the Respondent herein to file such application for amendment. In view of the above stated position, I am of the
considered view that the said judgment may not come to the rescue of the Petitioners.
Yet another decision that has been relied upon by the learned Counsel for the Petitioners is Revajeetu Builders and Developers v.
Narayanaswamy & Sons and Ors. (2010) 2 LW 917. In the said decision, the Honourable Apex Court has made it very clear that an admission
made earlier in the plaint cannot be withdrawn and that the amendment which changes the entire character of the plaint cannot be permitted. In the
case on hand, as already pointed out, the Respondent herein has not withdrawn whatever admissions he has made in the plaint. That apart, the
character of the plaint does not changes in view of the amendment taken out by the Respondent. He has claimed title over the property and hence,
he has filed the suit for injunction and he is now seeking only declaration. I am of the considered view that the said judgment will not have any use
to the Petitioners.
The next judgment that has been relied on by the learned Counsel for the Petitioners is Chinnakkal Vs. Marakkal, Arumugam, Sennimalai and
Palanichamy, . In the said judgment, the Honourable Apex Court has held that the Plaintiff who is guilty of filing repeated amendment applications
cannot get a relief. Even in the said judgment, it has been held that there is No. bonafide in the amendment application and hence, it came to be
rejected. In the present case on hand, though the Respondent herein has filed two applications for amendment, I am of the considered view that
there is a bonafide in the action of the Respondent in filing the application in view of the statement made by him in the affidavit filed in support of the
said application. Thus, I am of the considered view that the said judgment relied on by the learned Counsel for the Petitioners will not come to the
rescue of the Petitioners.
Yet another decision that has been relied on by the learned Counsel for the Petitioners is Kumaraswami Gounder and Others Vs. D.R.
Nanjappa Gounder (dead) and Others, . In the said decision, it has been held that by way of amendment a new cause of action cannot be
entertained. In the case on hand, as stated already, the Respondent herein is not trying to introduce a new cause of action.
In the judgment reported in Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, , the Honourable Apex Court has held
that amendment application made under Order 6 Rule 17 CPC has to be liberally allowed provided such amendment do not result in causing
injustice or irretrievable prejudice to the opposite party. In the case on hand, merely because permitting the Respondent herein to make an
amendment it does not mean that the Respondent herein has made out a case in his favour. As stated above, the merits of the amendment cannot
be discussed while deciding the application for amendment.
In the decision reported in Vidyabai and Others Vs. Padmalatha and Another, , the Honourable Apex Court has held that amendment
application filed after introduction of proviso to the said provision in the year 2002 has to be strictly considered. It has been further held that the
after the amendment in the year 2002 of Code of Civil Procedure, the Courts jurisdiction to allow such an application is taken away unless the
condition precedent thereof are satisfied. But in the case on hand the application for amendment has been filed before the trial Court and hence, the
proviso to Order 6 Rule 17 CPC will not have any play.
In yet another decision reported in S. Sathish and Anr. v. Dr. Sumathi and Ors. (2010) 7 MLJ 432, this Court has held that when admission
made earlier is not wiped out or it is going to be kept intact, No. prejudice will be caused to the other side even though an inconsistent plea was
taken. No. doubt, that is the case where this Court has dealt with, pertaining to the receipt of additional written statement. However, the ratio
made therein will be applicable to the case on hand.
Considering the over all circumstances referred to above, I am of the considered view that even though there is some delay on the part of the
Respondent herein in filing an application under Order 6 Rule 17 Code of Civil Procedure, considering the averments made in the affidavit filed in
support of the application, the trial Court was justified in allowing the application for amendment. I do not find any illegality or infirmity in the said
order.
In fine, the Civil Revision Petition stands dismissed. Consequently, the connected miscellaneous petition is closed. No. costs.