U. Mohammed Isak vs Natarajan and two others

The revision petitioner herein is the plaintiff in O.S.No.4 of 1995 on the file of the District Munsif-cum-Judicial Magistrate Court, Keeranur. He

had filed the suit to grant a decree for permanent injunction restraining the first defendant from selling the suit properties.

The first defendant filed a written statement wherein he had stated that in and by the sale deed dated 23.5.1983 the plaintiff sold the suit

property to the first defendant and he has been in possession and enjoyment of the suit property. The first defendant has been paying kist and Patta

has been transferred in his name on 6.8.1985.

The plaintiff filed an application for amendment alleging that he came to know that the first defendant had manipulated the records by changing

the Patta in his name without his knowledge. But, however, the plaintiff has been in possession and enjoyment of the suit property. The suit was

about to be taken for trial and as the prayer already sought for in the plaint is not sufficient, he came forward with an application to amend the

plaint seeking the relief of declaration that the suit properties are exclusively belonging to the plaintiff. The said application came to be filed on

12.1.2000 and the same was heard by the trial Court on 19.1.2000, which dismissed the petition on the ground that the petition is not maintainable

in view of the fact that the proposed amendment is barred by Article 58 of the Limitation Act. The said order is questioned in this revision petition.

The learned advocate for the petitioner has submitted that the petitioner has come forward with an application to amend the pleadings only after

he came to know that the first defendant had changed his Patta in his name at his back and the prayer in the plaint would not yield fruitful results.

The respondent countered the said argument by pointing out that in the written statement itself the first defendant has averred that he got Patta on

6.8.1985 itself and that therefore, the contention of the petitioner that he came to know the issuance of Patta only a week prior to the filing of the

petition is not true. The respondent further submitted that the application is barred by time under Article 58 of the Limitation Act.

The point to be considered in this petition is as to whether the petition filed by the petitioner/plaintiff to amend the plaint is allowable or not?

The plaintiff laid the suit for permanent injunction on the ground that though he had executed the sale deed in favour of the first defendant,

possession was not given to him and the said fact is also admitted by the first defendant in his written statement. But, however, after filing of the suit

and written statement, the plaintiff came to know that the first defendant got the transfer of Patta in his name which necessitated him to file the

application to amend the plaint. As the plaintiff entertained some apprehension that the prayer made in the plaint is insufficient, he came forward

with an application to amend the plaint praying for declaration that the suit property exclusively belonged to the plaintiff. In the affidavit itself, the

plaintiff made it clear that the trial of the suit was not commenced and the suit was about to be taken for trial, as such, it cannot be said that the

petition is belated and there is an inordinate delay in filing the petition to amend the plaint. Of course there is some delay in filing the petition and it

could never be said as belated, as the trial of the suit has not yet been commenced. It is therefore urged on behalf of the petitioner, that no

prejudice would be caused to the respondent in the event of allowing the petition and I see there is some force in the said argument. In fact, the

respondent will have an opportunity to file additional written statement also. In this context, it is also useful to examine the relevant provision.

Order 6, Rule 17 of the CPC reads as under:

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 alt such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the

parties.

The Rule can be split into three parts viz. (1) at any stage of the proceedings, either parties to the proceedings may be permitted to amend the

pleadings (2) the said amendment may be in such manner and on such terms as may be just (3) amendments shall be made as may be necessary

for the purposes of determining the real question in controversy. Here, the suit was laid for bare injunction. As per the averments in the affidavit,

the plaintiff came to know that the first defendant obtained Patta during the pendency of the suit. The plaintiff therefore thought fit to pray for

declaration, as otherwise, the suit for bare injunction would not serve the purpose. Now, the question of title to the property has got to be

determined. The amendment therefore become necessary for the purpose of determining the real question in controversy between the parties. The

amendment sought for by the plaintiff falls under the third part of the rule as shown above. Further, the trial of the suit has not been commenced

and hence, it would not prejudice either the plaintiff or the defendant. The prayer to amend the pleadings is wide and can be exercised at any stage

of the proceedings in the interest of justice. But, at the same time, we are conscious of the fact that the amendment cannot be claimed as a matter

of right and under all circumstances. But, at the same time, the Court should not adopt a hypertechnical approach in the matter of deciding the

petition for amendment. In fact, the Courts should not be wooden in approaching this kind of petition. Liberal approach should be the general rule,

particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the

administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.

The Honourable Supreme Court in B.K.N. Narayana Pillai Vs. P. Pillai and Another, laid down the following principles to allow the amendment

application.

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 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.

The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not

fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

Bearing the abovesaid principles in mind, let us now examine the petition of the petitioner.

The petitioner/plaintiff wanted to amend the plaint seeking the relief of declaration in view of the fact that the first defendant had obtained Patta.

On allowing such a petition, the first defendant would be given an opportunity to file an additional written statement wherein he can either accept or

attack the claim of the plaintiff. There is enough time for the respondent to set forth his case. Further the trial of the suit has not been commenced in

this case and hence, no prejudice could be caused to the defendant. The prayer sought for also cannot be stated as a fraudulent one. Though

apparently it would appear that there is delay in filing the petition, it cannot be said that it is abnormal and would go to the root of the matter and it

cannot be said also that the said delay is wanton or deliberate.

The respondent has put forth an argument that the amendment sought for by the petitioner is barred u/s 58 of the Limitation Act, which states

that

To obtain any other Declaration, period of limitation is three years. But the said period begins to run, when the right to sue first accrues.

The petitioner, in his petition, has stated that ""during the pendency of the suit, first respondent/first defendant seems to have manipulated records by

changing the Patta in his name behind the back of the petitioner/plaintiff, which was verified and found to be true only last week after the threat of

the defendant."" The petitioner states that he came to know of the change of Patta a week prior to the filing of the petition and the period of

limitation begins to run only from that time onwards and as such, the petition is in time. It is a question of fact, which could be gone into at the time

of trial. Even otherwise, ""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."" Smt. Ganga Bai Vs. Vijay Kumar and Others,

The petitioner/plaintiff cannot be stifled and his right cannot be crippled at the threshold itself by holding that the petition is not maintainable as

the same would be contrary to the principles laid down by the Apex Court and would also run contradictory to the provisions of Order 6, Rule 17

of CPC which states ""at any stage of the proceedings, the Court may allow either party to amend or alter the pleadings"" and in the said view of the

matter, I feel that the petition has got to be allowed and the respondent/defendant is entitled to put forth all the defences available to him by filing

additional written statement.

In the result, the revision petition is allowed. In view of the order passed in the main CRP no order is necessary in the connected CMP and the

same is closed.

After pronouncement of the order, the learned advocate for respondents 1 and 2 has represented that a time limit may be fixed for the disposal

of the suit and also pointed out that the suit is of the year 1995. Taking into consideration the said representation Learned District Munsif is

directed to dispose of the suit within 4 months from the date of receipt of this order.