S. Somasundaram and another vs A. Subramanian

E. Padmanabhan, J.—This revision has been preferred being aggrieved by the fair and decretal order dated 18th November, 1998 made in

I.A. No. 46 of 1998 in A.S. No. 161 of 1994 on the file of the Second Additional District Judge, Tirunelveli. Heard Mr. K. Govi Ganesan,

learned counsel appearing for the petitioners and Mrs. B. Sivakama Sundari, learned counsel appearing for the respondent.

The petitioners herein instituted O.S. No. 195 of 1985 on the file of the Subordinate Judge of Tirunelveli against the respondent seeking for

declaration of title in respect of the first and second schedule properties and consequential injunction or in the alternative for recovery of

possession. The respondent resisted the suit. Pending the suit, the petitioners moved the trial Court for amendment of the reliefs prayed for. As per

the amended plaint the petitioners prayed for declaration that the suit first and second schedule properties absolutely belong to the third schedule

Kattalais and the plaintiffs are the varisudars of the said Kattalais and for consequential injunction or alternatively for recovery of possession. It is

needless to add that at the instance of the petitioners the said amendment has been allowed after contest.

Ultimately after trial the suit came to be dismissed in its entirety. Being aggrieved, the petitioners preferred the regular Appeal A.S. No. 161 of

1994 on the file of the District Court, Tirunelveli. Four years after the presentation of the Appeal, the petitioners moved an application for

amendment of the reliefs prayed for and amendment being to declare that the plaintiffs alone are entitled to the suit first and second schedule

properties. The said application in I.A. No. 46 of 1998 was resisted by the respondent. The learned Second Additional District Judge by order

dated 18th of November, 1998 dismissed) the said application while sustaining the objections raised by the respondent. Being aggrieved the

present revision has been preferred.

Mr. K. Govi Ganesan, learned counsel for the petitioners contended that the order rejecting the application for amendment of the relief would

amount to refusal to exercise the jurisdiction vested in the Court below and that the order suffers with illegality. Per contra, Mrs. B. Sivagami

Sundari, learned counsel for the respondent contended that the Court below had rightly dismissed the application and no interference is called for

with the order passed by the Court below as the very petitioners having successfully sought for amendment introducing the relief of declaration that

the suit property belong to the third schedule Kattalai, cannot now turn around or go back and plead that in the alternative they are entitled to the

relief of declaration of title in their favour.

It has to be mentioned at this stage that the above revision was taken up for hearing on 23.2.1999. It was allowed by this Court. However, the

respondent herein thereafter moved an application to set aside the said order dated 23.2.1999 assigning valid reasons for non appearance, besides

pointing, out that though the respondent had entered appearance through counsel, the counsel''s name had not been shown in the cause list and

therefore the order has to be set aside. The learned Judge, who had allowed the revision petition by order dated 24.6.1999, allowed the said

application and set aside the order dated 23.2.1999 passed in the revision petition. As a result thereof the revision restored to file. Hence the

present revision is taken up for hearing afresh. The points that arise for consideration are:-

(i) whether the amendment setting forth an alternative relief is to be ordered as prayed for?

(ii) whether the order of the Court below is sustainable?

At the outset it has to be pointed out, the petitioners have not sought for amendment of any portion of the body of the plaint, but they only seek

for amendment of the relief portion to include an alternate relief as if they are owners. Whether such an amendment is to be allowed is the

substantial question.

Concedingly, the petitioners initially filed the suit for declaration of title in respect of the suit 1st and 2nd schedule belonging to them and for

consequential relief of injunction or alternatively for recovery of possession. After some time thereafter the very petitioners applied for amendment

of the plaint deleting the relief of declaration of title prayed for in their favour and to substitute the same with the relief that the suit plaint schedule

properties 1 and 2 belong to the third schedule kattalai. In other words, the petitioners as plaintiffs had given up their claim of their title to the suit

properties and they have set up title in the third schedule Kattalai. The said suit has been dismissed after contest on merits.

Pending the first appeal, the present amendment application has been filed whereby apart from retaining the relief of declaration that the suit

properties belong to the their schedule kattalai, the petitioners prayed for an alternate relief viz., ""alternatively the suit properties belonging to the

plaintiffs"". This amendment has been rejected. In other words, the petitioners gave up their plea that the properties are theirs, but set up title in the

third schedule Kattalai at the stage of the suit. Even before the first appellate Court, the petitioners have merely sought for an alternate relief which

they have already given up at the first instance before the trial Court by way of present amendment application.

Having set up title in the third schedule kattalai and having not moved for any alternate basis or alternate case in the body of the plaint, it is too

late in the day for the petitioners to seek for alternate relief that the petitioners are entitled to declaration of title if for any reason the relief that the

suit properties belong to the third schedule Kattalai is rejected. I am afraid such an amendment cannot be allowed in the light of the very conduct of

the petitioners. If such an amendment is allowed it would enable the petitioners to blow hot and cold. In the guise of introducing an alternate

prayer, the petitioners not only convert the very claim and cause in the suit as well as nature and basis of the claim.

When the petitioners had admitted that they have no title and set up title in the third schedule Kattalai by amendment, which admission of the

petitioners/plaintiffs cannot be allowed to be withdrawn even if it is by way of alternate relief as such withdrawal would amount to totally displacing

the very case of the petitioners and it would cause the respondent to irretrievable prejudice. In Heeralal Vs. Kalyan Mal and Others, it has been

held thus:-

The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the

respondents. Even that a part, the said decision of two learned Judges of-this Court runs counter to a decision of a Bench of three learned Judges

of this Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . In that case Ray C.J., speaking for

the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as

compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace

the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in

the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants.....

The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three Learned Judges of this

Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such

admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and

which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of the three member Bench of this Court was not brought to

the notice of the Bench of two learned Judges who decided the case in Akhsya Restaurant. In the latter case it was observed by the Bench of two

learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The

aforesaid observation in the decision in Akhsya Restaurant proceeded on an assumption that it was the settled taw that even the admission can be

explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three member Bench of this Court in

Modi Spinning is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which

would displace the plaintiffs case and cause him irretrievable prejudice.

It may be that it is open to the parties to raise even mutually inconsistent pleas and if the relief could be found out on the alternate plea it could

be granted. If the facts are admitted in the plaint and relief could be granted to the plaintiff on the basis of evidence, though inconsistent pleas were

raised, amendment of pleadings can be made provided the petitioners'' plea is based on their title even alternatively. The entire plaint claim as was

instituted is based on title as it was claimed that the third schedule Kattalai is the owner of the property. Even alternatively also it is not open to the

petitioners to claim that the petitioners in their individual capacity are entitled to the suit property. The amendment sought for constitute advantage

of a new cause of action. It would change the cause of action and it would amount to introduction of a new cause.

Inconsistent and contradictory allegations in negation to the admitted position or facts or mutually destructive allegation of facts should not be

allowed to be incorporated by means of amendment to the pleadings even in respect of alternate relief as well. The proposed amendment should

not cause prejudice. No amendment should be allowed which amounts to or results in deviating the legal rights accruing to the opposite party.

In B.K.N. Narayana Pillai Vs. P. Pillai and Another, , the Apex Court held thus:-

Para. 4 This Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, held:

The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on

new case or cause of action is barred: Weldon v. Neal (1887) 19 OBD 3940. But it is also well recognised that where the amendment does not

constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the

same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: See AIR 1921 50 (Privy Council) and L.J.

Leach and Company Ltd. Vs. Jardine Skinner and Co.,

The principal reasons that have led to the rule last mentioned are, first, that the object of Courts and rules of procedure is to decide the rights of the

parties and not to punish them for their mistakes (Cropper v. Smith (1884 26 Ch D 700)) and secondly, that a party is strictly not entitled to rely

on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to

be amended (Kisandas Rupchand v. Rachappa Vithoba Shilwant (ILR (1909) 33 Bom 644).

The expression ''cause of action'' in the present context does not mean ''every fact which it is material to be proved to entitle the plaintiff to

succeed'' as was said in Cooks v Gill (1873 8 CP 107) in a different context for if it were so, no material fact could even be amended or added

and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means,

a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Unicos Property Corpn., Ltd., (1962 2 All ER

24 (CA) and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words ''new case'' have been

understood to mean ''new set of ideas''. Dorman v. J.W. Ellis and Co. Ltd., (1962 (1) All ER 303 (CA). This also seems to us to be a reasonable

view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time.

Again in Smt. Ganga Bai Vs. Vijay Kumar and Others, this Court held:

The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of

limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the

discretion, greater ought to be the care and circumspection on the part of the Court.

In Ganesh Trading Co. Vs. Moji Ram, , it was held:

It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to

costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting

them. Even if a party or its counsel is inefficient in setting out its case initially the short coming can certainly be removed generally by appropriate

steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is

not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.

All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the

proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken.

Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be

allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side

which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the

opposite party on account of lapse of time.

All amendments of the pleadings should be allowed which are necessary for determination of the real controversy in the suit provided the

proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken

inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegation of fact should not be

allowed to be incorporated by means of amendment to the pleading. Proposed amendment should not cause such prejudice to the other side which

cannot be compensated by cost. No amendment should be allowed which amounts to or results in deviating a legal right accruing to opposite party

on account of lapse of time.

On the facts of the present case even the alternate relief which was the relief which was prayed for by the petitioners originally and which had

been deleted at the first instance by the petitioners cannot be now allowed to be raised at the first appellate stage as it would not only introduce a

new but also inconsistent case, besides withdrawal of the admission regarding title as amended. It cannot be stated that the present proposed

amendment is only to supply a omission. The alternate relief also cannot be allowed to be introduced in the light of the earlier conduct of the

petitioners and their seeking for amendment by the earlier action that the suit properties belong to the third schedule kattalai and on that basis

contested the suit proceedings. Further, no alteration or amendment had been sought for in respect of the body of the plaint, nor even basis for the

same had been pleaded.

In the circumstances this Court holds that the court below had rightly dismissed the application. If amendment is ordered as prayed for it would

amount to allowing the petitioners to plea not only an inconsistent case, but also it would introduce a new cause and a totally different claim even if

it is pleaded as an alternate relief. Further it would amount to withdrawal of the stand or the plea regarding title which was given up.

In the circumstances, this Court holds that no interference is called for in this Civil Revision Petition as the rejection of the application by the

Court below in no way suffers with illegality or material irregularity or error of jurisdiction. Hence this Civil Revision Petition fails and it is

dismissed. The parties shall bear their respective costs. It is needless to add that the Court below shall proceed with the First Appeal and dispose

of the same on merits without further delay.