Ruby Esther Mary vs Dominic Xavier @ Thomuni

S. Rajeswaran, J.—Revision Petition filed against the order dated 29.3.2005, passed in I.A. No. 489/2004 in O.S. No. 195/2004 on the

file of the Principal District Munsif Court, Ariyalur.

The plaintiff in O.S. No. 195/2004 on the file of the Principal District Munsif, Ariyalur is the revision petitioner.

The revision petitioner/plaintiff filed the suit for permanent injunction restraining the respondent herein and other defendants from interfering with

the peaceful possession and enjoyment of the suit schedule property.

The respondent herein as the 1st defendant filed his written statement opposing the relief prayed by the revision petitioner/plaintiff and thereafter

he filed an application in I.A. No. 489/2004 under Order 6 Rule 17 C.P.C. to amend the written statement filed by him on the ground that by

mistake he mentioned in the written statement that item No. 5 in the suit schedule property was sold to one Augustine and in fact item No. 5 of the

suit schedule property was allotted to him and is in his possession.

This application was resisted by the revision petitioner/plaintiff herein by contending that trial has already commenced and the cross examination

of P.W.1 was already completed. The chief examination of D.W.1 was over and the suit is now posted for cross examination of D.W.1. Therefore

the revision petitioner/plaintiff contended that the amendment could not be allowed at this belated stage and further the proposed application is an

attempt to nullify the advantage accrued to her. The trial court by order dated 29.3.2005 allowed the amendment petition by holding that the

proposed amendment would not alter the character of the suit and it was only rectifying the genuine mistakes committed by the respondent herein.

Aggrieved by the order, the plaintiff has filed the above Civil Revision Petition under Article 227 of the Constitution of India.

Heard the learned Counsel for the petitioner and the learned Counsel for the respondent. I have also gone through the documents and judgments

referred to by them in support of their submissions.

Learned Counsel for the petitioner strenuously contended that after the C.P.C. amendment Act 2002, which came into effect from 1.7.2002, no

amendment should be allowed after the commencement of trial and the amendment sought for by the respondent herein is to nullify the advantage

accrued to the revision petitioner that too after the evidence on the side of the plaintiff was closed. He relied on the decision of this court reported

in Kasiappa Gounder Vs. Karuppan and Others, ; D. Ramanujam Vs. R. Panneerselvam, and S. Ahamed Meeran and Others Vs. S.

Kumaraswamy Thevar, .

Per contra, learned Counsel for the respondent submitted that hyper-technical approach should not be adopted and amendments ought to be

granted and allowed when the basic structure of the suit has not been changed. He relied on the decision of the Hon''ble Supreme Court in Rajesh

Kumar Aggarwal and Others Vs. K.K. Modi and Others, .

I have considered the rival submissions.

Order 6 Rule 17 C.P.C. after the C.P.C. amendment Act 22 of 2002 reads as under:

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.

From the above it is very clear that a proviso has been added according to which no application for amendment shall be allowed after the trial

has commenced, unless the court comes to the conclusion that despite due diligence the party could not have raised this matter before the

commencement of trial.

Thus, now, two conditions have been imposed on a party seeking amendment after commencement of trial namely, No. (1) the proposed

amendment will not change the character of the suit and (2) in spite of due diligence he could not have raised the matter before the commencement

of trial.

In Kasiappa Gounder Vs. Karuppan and Others, , this court has held as follows:

Order 6, Rule 17, C.P.C. has been amended by the C.P.C. Amendment Act with effect from 1.7.2002. A new proviso has been added to the

rule, namely that no application for amendment of the pleadings 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. Thus after the trial of the case

has commenced, no application for amendment of the pleading shall, be allowed 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. In this case, Chief-examination of P.W.1 was completed

and the Amendment Petition filed after the Trial is not maintainable.

In D. Ramanujam Vs. R. Panneerselvam, , this court held as follows:

I heard the counsel appearing for both the sides. Upon consideration of the statements and the reading of the impugned order on record, the

points arise for consideration are:

(a) After commencement of the trial and after the examination of P.W.1, whether the Amendment Application filed, could be allowed?

(b) In refusing the amendment is there any improper exercise of discretion warranting interference?

The following dates are very relevant for the purpose of this case. The suit was filed on March 2003. The written statement was filed on

23.6.2003. The Amendment Application was filed on 15.3.2004. The said Amendment application was filed after a period of nine months. In the

written statement also, it was clearly stated that the defendant is in possession of the property. After receiving the said written statement, the

plaintiff had not taken any steps seeking to amend the plaint. A new proviso in C.P.C. Amendment Act, 1999 has been added in Order 6, Rule

17, which reads as follows:

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.

From a reading of the above proviso, it is clear that once the trial has been commenced, no application for amendment of the pleadings can be

allowed unless the Court comes to a conclusion that in spite of the diligence, the party could not have raised the matter before the commencement

of the trial. In the present case, the lower Court posted the case on 24.9.2003 and issues were framed on the same day. Thereafter the matter was

posted for hearing on 8.3.2004, on which date, P.W.1 was examined in chief and Exhibits A-1 and A-2 were marked. Thereafter on 10.3.2004,

the matter was posted for cross-examination of P.W.1. On 12.3.2004, the matter was heard and P.W.1 was also cross-examined. Then, Ex.R1

was marked and posted for further evidence on 15.3.2004, during which time, the petition for amendment was filed. On 12.3.2004, the plaintiff

filed a proof affidavit in which the plaintiff did not make any statement regarding the possession of the property and if really the defendant is in

possession, he would have stated so. According to the respondent defendant, the plaintiff trespassed the land on 9.12.2003 and is in possession. If

really the defendant trespassed into the property and consequently in possession of the property, the plaintiff would have brought to the notice of

the court. When the trial has already commenced, the present amendment petition was filed without giving any valid reason for not filing the

amendment before the commencement of the trial. Even after the trail, the Court could not allow the Amendment Petition unless the Court is

satisfied that in spite of the due diligence, the party could not have raised the matter. In this case, the lower Court correctly applied the proviso and

came to a correct conclusion that the plaintiff had not stated any reason in the Amendment Petition for belated filing.

In S. Ahamed Meeran and Others Vs. S. Kumaraswamy Thevar, , this court held as follows:

Order 6, Rule 17, C.P.C. has been amended by the C.P.C. Amendment Act with effect from 1.7.2002. A new proviso has been added to the

rule, namely that no application for amendment of the pleadings 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. In Kasiappa Gounder Vs.

Karuppan and Others, and P. Subba Naicker Vs. Veluchamy Naicker and Others, , this Court has held that after the Trial of the case, no

application for amendment of the Pleadings shall be allowed. In the decision Rethinam alias Anna Samuthiram Ammal v. Syed Abdul Rahim 2005

(3) CTC 321, P.K. Misra, J. referring to Section 16 of the CPC (Amendment) Act 2002, held that in respect of the Plaint or Written Statement

filed before 1.7.2002, the Proviso to Order 6, Rule 17, C.P.C. would have no applicability. In the said decision, the learned Judge has held:

Section 16 of the CPC (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision u/s 16, so far as relevant for the

present purpose, is as follows:

Repeal and Savings:- (1)...

(2) ...

(a)

(b) the, provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section

16 of the CPC (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement

of Section 16 of the CPC (Amendment) Act, 1999 and Section 7 of this Act:

(c)...

The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the CPC (Amendment)

Act, 1999 and which had been inserted by Section 7 of the CPC (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed

before the commencement, of Section 16 of the CPC (Amendment) Act, 1999 and Section 7 of the CPC (Amendment) Act, 2002. As already

indicated, the CPC (Amendment) Act, 1999 and the CPC (Amendment) Act, 2002 came into force with effect from 1.7.2002. From the bare

reading of the provisions contained in Section 16(2)(b) of the CPC (Amendment) Act, 2002, it is clear that such amended provision as contained

in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously

include the Plaint and Written Statement. Therefore, in respect, of the Plaint, or Written Statement filed before 1.7.2002, the proviso to Order 6,

Rule 17,C.P.C. would have no applicability....

Learned Single Judge has also expressed the view that Section 16 of the CPC (Amendment) Act, 2002 was not brought to the notice of the Court

in the case P. Subba Naicker Vs. Veluchamy Naicker and Others, . Considering the facts and circumstances of this case, this Court is not

expressing any view on the contra views.

Suffice it to point out, that even de hors the Codes of Civil Procedure (Amendment) Act, 2002, (the Proviso to Order 6, Rule 17, C.P.C.), the

Amendment Application filed belatedly after the conclusion of the Trial cannot be entertained. In view of the, conclusion of the Trial and other

circumstances, valuable rights have been accrued to the contesting Defendants. By allowing the proposed Amendment, serious prejudice would be

caused to the Defendants. Learned District Munsif has not taken note of the belated stage in which the Amendment Application was filed. The

order directing to pay Rs. 1000 as costs would not compensate the serious prejudice caused to the Defendants. The Impugned Order suffers from

material irregularity and is liable to be set aside.

A reading of these decisions would make it very clear that amendment petition after the commencement of trial can not be allowed, unless the

court comes to a conclusion that despite due diligence, the party could not have raised the matter before the commencement of the trial. Therefore

the petitioner in the amendment petition should aver in the petition as to why he was not in a position to file the amendment petition before the

commencement of trial and such reason stated in the affidavit should be gone into by the trial court and the trial court should render a finding that

despite due diligence, the petitioner seeking amendment could not have raised this matter before the commencement of the trial.

In the present case, no reasons were given by the respondent herein for not raising the matter before the commencement of trial except by

saying that due to mistake he had wrongly stated that item No. 5 in the suit was sold to one Augustine and in fact item No. 5 was really allotted to

him and he is in possession of item No. 5. Thus the respondent herein has not given any reasons for the belated filing of the amendment petition that

too after evidence of plaintiff was closed and the matter was posted for cross examination of D.W.1.

The trial court has also not gone into these aspects even though the revision petitioner/plaintiff has specifically pleaded in para 3 of the counter

that the amendment petition has been filed by the respondent belatedly that too after the commencement of trial. The trial court has also not

considered the amended provision of Order 6 Rule 17 of C.P.C. and therefore the trial court has committed an illegality in allowing the amendment

petition filed by the respondent herein.

In Rajesh Kumar Aggarwal and Others Vs. K.K. Modi and Others, , the Hon''ble Supreme Court held as follows:

Order 6 Rule 17 CPC reads thus:

17.""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.

This rule declares that the court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on

such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy

between the parties. The proviso enacts that no application for amendment should 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 for which amendment is sought before the

commencement of the trial.

The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments

that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the

other side.

Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading.

The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real

question in controversy between the parties.

In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the

basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible

for the appellants to file an independent suit, why the same relief which could be prayed for in new suit cannot be permitted to be incorporated in

the pending suit.

As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an

amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be

refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain

opinions and entered into a discussion on merits of the amendment. In cases like this, the court should also take notice of subsequent events in

order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of

decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should

be exercised in the larger interest of doing full and complete justice to the parties before the court.

While considering whether an application for amendment should or should not be allowed, the court should not go into the correctness or

falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment

sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle

has not been followed by the High Court in the instant case.

In the above decision, the Hon''ble Supreme Court has laid down the cardinal principles to be followed while considering the amendment

petition. The Supreme court allowed the proposed amendment on the facts of that case as the cause of action arose during the pendency of the

suit. Further, the Supreme Court has considered Order 6 Rule 17 C.P.C. and its two parts namely, (1) First part (""the court may"") which is

discretionary and the second part (""all such amendments shall be made"") which is imperative. The Supreme Court has not discussed the proviso

which was introduced after the amendment Act 2002. Moreover, in the case before the Supreme Court, the suit was filed in the year 1997, i.e.,

well before the amendment Act 2002 came into force and therefore the above decision of the Supreme Court is easily distinguishable on facts and

it will not be helpful to the respondent herein.

That apart, the amendment sought for by the respondent is to delete the sentence that item No. 5 of the suit schedule property was sold to one

Augustine and in that place to add the sentence that item No. 5 of the suit schedule property was allotted to his family and it is in their possession.

This amendment was sought for by him when the matter was posted for cross examination of D.W.2. In such circumstances, I find force in the

submission of the learned Counsel for the revision petitioner that the proposed amendment would take away the advantage already accrued to the

plaintiff and, the amendment was sought for only to get away from the earlier pleadings pleaded in the written statement that the item No. 5 was

allotted to one Augustine. The earlier pleadings contained in the written statement and the proposed pleadings are mutually destructive and they are

contradicting each other. Therefore the same should not be permitted to be amended.

In the result, the order of the trial court dated 29.3.2005 made in I.A. No. 489/2004 is set aside and consequently the C.R.P. is allowed. No

costs. C.M.P. No. 10597/2005 is closed.