Vijayakumar vs Nainammal and Others

D. Hari Paranthaman, J.—The revision petitioner is the second defendant in O.S. No. 216 of 2009 on the file of learned District Munsif, Attur. It is a partition suit filed in the year 2009.

According to the second defendant, he purchased the entire suit schedule property from the husband of the first plaintiff viz., Azhaga Padayachi and the father of the plaintiffs 2 and 3 viz., Thandarayan and the father of plaintiffs 4 and 5 viz., Palanimuthu. It is stated that the said Thandarayan and Palanimuthu are brothers. The purchase took place in the year 1984. He has also stated so in the written statement. Thereafter, the plaintiffs filed I.A. No. 1019 of 2012 in O.S. No. 216 of 2009 to amend the plaint so as to seek the relief of declaration that the sale effected by the said Azhaga Padayachi, Thandarayan and Palanimuthu is null and void. The amendment application was allowed by the Trial Court by order dated 4.7.2015 in I.A. No. 1019 of 2012 in O.S. No. 216 of 2009. The present revision petition is against the aforesaid order.

Learned counsel appearing for the second defendant/revision petitioner has strenuously contended that the Trial Court committed an error in allowing the application for amendment which was filed after six years from the date of filing of the suit. He has also relied upon the judgment of Hon''ble Apex Court reported in L.C. Hanumanthappa Vs. H.B. Shivakumar , wherein in para 25, it has been held as follows:

"25. In Sampath Kumar Vs. Ayyakannu and Another, , this Court was faced with an application for amendment made 11 years after the date of the institution of the suit to convert through amendment a suit for permanent prohibitory injunction into a suit for declaration of title and recovery of possession. This Court 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 curtail multiplicity of legal proceedings.

Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In the former case generally it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No straitjacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment.

An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation-back in the context of amendment of pleadings is not one of universal application and in appropriate cases the court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the court on the date on which the application seeking the amendment was filed. (See observations in Siddalingamma and Another Vs. Mamtha Shenoy, ).

In the present case, the amendment is being sought for almost 11 years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit. The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive title claimed to have been earned by the defendant. The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed."

I have considered the submissions made by the learned counsel appearing for the second defendant/revision petitioner.

It is not in dispute that the trial of the suit in O.S. No. 216 of 2009 is yet to commence. Further more, it is also admitted that the amendment is not hit by any limitation. In these circumstances, I am of the view that there is no infirmity in the order of the Trial Court in allowing the amendment.

The judgment relied on by the learned counsel appearing for the second defendant/revision petitioner is of no use. In the said decision, the Hon''ble Apex Court held that in certain matters, the doctrine of relation-back cannot be applied to prejudice the defence. In my considered view, the said judgment can have no application to this case. In that case, the defendant took a plea that he was entitled to claim property based on adverse possession. In that context, the Hon''ble Apex Court made those observations. Hence, I am of the view, the said judgment has no application to this case.

In the result, the order of the learned District Munsif, Attur dated 4.7.2015 made in I.A. No. 1019 of 2012 in O.S. No. 216 of 2009 is confirmed and the civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.

It is needless to state that the second defendant/revision petitioner is entitled to file his additional written statement to the amended plaint. Even if the time has lapsed, the Trial Court is directed to permit him to file additional written statement.