T. Kantharaju vs Dr. N. Kuppuswami and Others

V. Kanagaraj, J.

This Civil Revision Petition has been filed against the fair and decretal order dated 9.10.2001 made in I.A.No. 1202 of 1998 in O.S.No. 318 of

1996 by the Court of District Munsif, Krishnagiri by the third defendant to the suit who is also the third respondent in the I.A.No. 1202 of 1998.

Tracing the history of the above Civil Revision Petition having come to be filed, it comes to be known that the respondents 1 and 2 herein are

the plaintiffs 3 and 4 in O.S.No. 40 of 1983 on the file of the Court of Subordinate Judge, Krishnagiri; that the said suit was filed by their mother

for possession of the suit property, past and future mesne profits and for costs and the same was decreed allotting the suit properties to her after

contest by the defendants therein; that pending suit, first plaintiff Rajammal died leaving behind her husband Gopal @ Narayanaswami Naidu, son

and daughter as legal heirs and they were brought on record as plaintiffs 2 to 4; that subsequently the second plaintiff also died; that the said suit

was transferred to Additional Special Court, Krishnagiri to be tried along with the another suit O.S.No. 41 of 1983 filed by Rajammal for partition

of suit house into two equal shares by metes and bounds and for direction to defendants to deliver separate possession of half share and for future

mesne profits on the basis of the final decree passed by the Sub Court, Salem; that the defendants therein filed a suit in O.S.No. 311 of 1984 on

the file of the Court of Subordinate Judge, Krishnagiri against Rajammal for a decree directing her to execute a relinquishment deed for the suit

properties as per the terms of the agreement dated 26.1.1981 and in default to get the document executed by Court; that the respondents 1 and 2

herein were also brought on record as defendants 3 and 4; that the said suit was also transferred to Additional Special Judge, Krishnagiri and the

same was renumbered as O.S.No. 157 of 1986 for joint trial; that a memo was filed for a joint trial and the plaintiff in O.S.No. 40 of 1983 was

examined and their evidence was also closed; that the first defendant was examined as D.W.1 and when the impugned muchalika was sought to be

marked, the plaintiffs took objection that it is not properly stamped and it cannot be received in evidence; that an order was passed holding that it

is only an agreement against which revision was filed and the same was dismissed by this Court; that as per the agreement, the first plaintiff was

entitled to possession of the properties as proposed amendment in the alternative in the accompanying petition for amendment.

In the counter filed by the respondent in I.A.No. 1202 of 1998, it is stated that the suit properties were never delivered to deceased Rajammal

and she was not entitled to any share in the suit house of O.S.No. 41 of 1983; that the petition for amendment is belated one and the same was

filed as an after thought; that with regard to the properties sought to be added by way of amendment, their possession continued with the

respondents and the same was admitted by the plaintiffs and therefore, there would be no cause of action; that the plaintiffs have challenged the

validity of the Muchalika on the ground that the signatures of the plaintiffs were obtained by using undue influence; that the plaintiffs'' right to sue for

specific performance for enforcing the terms of the Muchalika got extinguished by expiry of the prescribed period of limitation; that the

respondents'' suit for specific performance requiring the petitioners in O.S.No. 157 of 1986 to execute the relinquishment deed is pending and the

joint trial is ordered would not enlarge the period of limitation and therefore, they cannot claim alternative relief and therefore, the petition has to be

dismissed.

The lower Court has allowed the petition for amendment on cost of Rs. 350 against which this revision has been filed by the third respondent

therein on certain grounds as brought forth in the grounds of revision.

During arguments, the learned counsel for the petitioner would also cite from the order passed by a learned single Judge of this Court way back

in 1980 in C.R.P.No. 2849 of 1979 regarding amendment of pleadings, wherein in a suit for permanent injunction the plaintiff prayed for

amendment of the plaint for alternative prayer of recovery of possession being filed after examination and after closing the evidence and held that it

could not be allowed. The extract from the relevant paragraph 15 of the order is:

In this case it is quite obvious that the present attempt is only to protract the proceedings and delay the disposal of the suit .... The plaintiff having

designedly, wantonly and knowingly asked for the relief of injunction and the present amendment being sought for at belated stage of the suit and

just before arguments were heard, if allowed, would not be in the interests of justice.

Continuing to argue the learned counsel would submit that the present suit was taken up for trial; that at this stage they have filed this application

for alternate relief of possession that those properties in terms of the panchayat agreement were sought to be allotted to them; that the petitioner is

entitled to 5.13 acres only; that the panchayat muchalika came to light very belatedly. On such arguments the learned counsel would seek to the

relief extracted supra.

On the other hand the learned counsel for the respondents would argue that the plaintiff wants to introduce a new case stating that it has to be

protected; that the plaintiffs'' mother instituted the present suit; that she filed an application for allotment of l/4th share in the suit property in

O.S.No. 28 of 1969 on the file of the Court of Subordinate Judge, Salem for partition and separate possession filed by her brother, which came to

be decreed; that thereafter, she filed an execution petition to take separate possession of the property which was allowed in her favour in 1979 and

the possession was taken on 29.7.1979 in respect of the very same property; that after taking possession, again bringing out the property, the

defendants trespassed into the property and a criminal complaint was lodged on 26.8.1981; that in terms of the muchalika the first plaintiff

relinquished in respect of all the properties and she has been given 5.1 acres from the properties of the family. Therefore, the plaintiff filed suits in

O.S.No. 40 of 1983 and O.S.No. 41 of 1983 for partition and separate possession of the house and those were sought to be clubbed together

and others have filed a suit in O.S.No. 311 of 1984 which was for specific performance of the panchayat agreement; that all the three suits were

taken together and the said agreement was sought to be marked as document which was objected on the ground that it was not a registered one

and therefore, it cannot be accepted as evidence against which revision has been filed and the same was dismissed.

On the part of the learned counsel for the respondents, he would also cite two recent orders (i) Sampath Kumar v. Ayyakannu and Anr., 2002

(4) CTC 189, (ii) Person Publicity Vs. The Corporation of Madras, .

In the first order cited above, the Hon''ble Apex Court has held:

In our opinion, the basic structure of the suit is not altered by the proposed amendment. What is sought to be changed is the nature of relief sought

for by the plaintiff. In the opinion of the Trial Court it was open to the plaintiff to file a fresh suit and that is one of the reasons which has prevailed

with the Trial Court and with the High Court in refusing the prayer for amendment and also in dismissing the plaintiff''s revision. We fail to

understand, if it is permissible for the plaintiff to file an independent suit, why the same relief which could be prayed for in a new suit cannot be

permitted to be incorporated in the pending suit. In the facts and circumstances of the present case, allowing the amendment would curtain

multiplicity of legal proceedings.

In the second order cited above, a Division Bench of this Court has held:

Though the appellant sought for the relief of injunction restraining the respondent from invoking the bank guarantee, the same was not granted, and

so the respondent invoked the same. As mentioned already, the appellant-firm had sought for declaratory relief regarding bank guarantee furnished

by them. The amendment now sought for is only a consequential prayer. The learned Judge dismissed the application on the grounds that the

appellant came to the Court belatedly and the claim made by the way of amendment is barred by limitation.

In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both, it could

be assessed that an application has been filed by the plaintiffs No. 3 and 4 before the Court of District Munsif, Krishnagiri, under Order VI, Rule

17 of C.P.C. seeking to permit the petitioners to amend the plaint as detailed in the petition, wherein the petitioner is the third respondent. The trial

Court having traced the facts pleaded, wherein the said amendment petition would be opposed by the third respondent, the petitioner herein to the

effect that they did not add themselves as the legal representatives of the deceased plaintiff Rajammal nor the suit properties were delivered to the

deceased Rajammal; that she was not at all entitled to any share in the suit house in O.S.No. 41 of 1983 and the petition was belated one in a suit

for recovery of possession of the properties and hence the petition having been filed as a result of after-thought would seek to dismiss the

amendment petition filed by the plaintiffs 3 and 4.

The Trial Court would also frame point for consideration whether the petition was to be allowed for the reasons stated in the affidavit therein

and observing that the respondents having filed O.S.No. 311 of 1984 as against the deceased Rajammal for a decree directing the defendants to

execute a relinquishment deed in their favour in terms of the agreement dated 26.1.1981 and on her death the petitioners were brought on record

as L.Rs. and defendants 2 to 4; that in the joint trial held along with O.S.No. 40 of 1983, the plaintiff''s evidence was closed and the first defendant

was also examined as DW1 and in the impugned muchalica which was sought to be marked, the plaintiffs took objection on ground that it was not

properly stamped and it required registration and ultimately in the High Court it was declared that the objection raised was untenable; that the

defendants also filed the suit in O.S.No. I57 of 1986 for enforcing the impugned agreement.

It would be further seen that on the part of the petitioners therein it has been argued that the proposed amendment was only an alternative relief

claimed by the petitioners therein and as per the impugned muchalica the petitioners were entitled to recovery of possession of the item 5 proposed

to be added in the suit; citing a judgment reported in B.K.N. Narayana Pillai Vs. P. Pillai and Another, and on such arguments heard, the lower

Court remarking that the petition filed under Order 6, Rule 17 of the CPC should be liberally construed and since the other party has also ample

opportunities to meet with the situation, it was only desirable to allow the same on terms and therefore, feeling that though the petition was highly

belated would arrive at the conclusion to allow the same since no serious prejudice was contemplated for the respondents in such event and would

allow the said application for amendment of the plaint with a cost of Rs. 350 and it is this order that has been passed by the lower Court is under

challenge.

Though the stage at which the petition had been allowed was highly belated, still, the trial Court thought it fit not only to impose the cost on the

petitioners but also to give adequate opportunity for the respondents to meet with the situation and therefore, no prejudice is caused to the

respondents therein that is to the petitioner herein who is the third respondent in the Interlocutory Application and in a matter of such nature when

the trial Court is of the view that it was necessary on its part to permit the petitioners therein to amend the plaint and since no prejudice has been

caused to the respondents therein, nor brought forth one, it is only reasonable not to counteract the same in the interest of justice and therefore, it is

only desirable not to cause interference in the decision of the lower Court since the same has been made within the permissible limits of law and

hence the following order:

In result,

(i) the above Civil Revision Petition does not merit acceptance and the same is dismissed as such;

(ii) the fair and decretal order dated 9.10.2001 made in I.A.No. 1202 of 1998 in O.S.No. 318 of 1996 by the Court of District Munsif,

Krishnagiri is confirmed;

(iii) in the circumstances of the case, there will be no order as to costs;

(iv) consequently, C.M.P.No 20056 of 2001 is closed.