RAJAMANI Vs. KUMARASAMY

JUDGEMENT

(1.) THE petitioner is the plaintiff and the respondents are the defendants. THE petitioner/plaintiff filed a suit in O.S.No.58/2007 before the Subordinate Judge of Sankari. THE petitioner is none other than the sister of the 1st respondent and the second respondent is the daughter of the 1st respondent. THE petitioner/plaintiff and the 1st respondent are the daughter and son of one Ramasamy Reddy and the suit property originally belonged to the father of the petitioner/plaintiff and the 1st respondent namely Ramasamy Reddy. THE petitioner/plaintiff filed the suit seeking following prayer(a) granting a preliminary decree of partition, dividing the suit properties into two equal shares according to the good and bad nature of the soil and allot one such share to the plaintiff and put her in separate possession thereof by metes and bounds and making provisions for passing of final decree by appointing a Commissioner to effect partition(b) granting a decree of permanent injunction restraining the defendants from in any manner alienating or encumbering any portion of the suit properties to any third parties, before lawful partition in respect of the properties is effectedTHE respondents/defendants also filed a written statement denying all the allegations and stated that the suit is devoid of merits and the same should be dismissed. THE petitioner/plaintiff filed I.A.No.260/2009 to amend the plaint. THE respondents/defendants also filed a counter objecting the same. After hearing the arguments on both sides, the trial Court dismissed the application on the ground that the application was filed belatedly i.e. the suit is filed in the year 2007, whereas the said application filed in the year 2009. Aggrieved by that order, the petitioner/plaintiff filed the present CRP.

(2.) LEARNED counsel appearing for the petitioner/plaintiff submitted that the order passed by the trial Court is wrong and illegal and without any basis and justification and also the trial Court wrongly dismissed the amendment petition. He further submitted that the trial Court ought to have considered that under Order VI Rule 17 of CPC, the Court is empowered to allow the amendment at any stage of the suit and does not alter the nature of the suit or cause of action. The trial Court failed to see the sufficient pleadings and evidence for the additional relief sought. Further, he submitted that the trial Court dismissing the amendment petition would result in miscarriage of justice. Also, he relied on the following judgments to support his propositioni.M.C.AGRAWAL HUF Vs. M/s.SAHARA INDIA AND Ors. Reported in AIR 2008 SUPREME COURT 2887.ii.C.V.RAMBABU Vs. V.C.JAYANTHI reported in 2009 (2) CTC 387iii.PEETHANI SURYANARAYANA AND OTHERS Vs. REPAKA VENKATA RAMANA KISHORE AND OTHERS reported in (2009) 11 SCC 308.iv.SAMPATH KUMAR Vs. AYYAKANNU AND ANOTHER reported in 2002 (4) CTC 189.V.C.RAJAMANI Vs. C.RATHNABAI reported in 2009 (4) CTC 213.

(3.) THIS present suit is granting preliminary decree of partition, dividing the suit properties into two equal shares and permanent injunction restraining the defendants from in any manner alienating or encumbering any portion of the suit properties. The present amendment petition is filed under Order VI Rule 17 and Section 151 of CPC and stated as follows1) In the body of the plaint, insert the following para as para 10-a) in between the paras 10 and 11.10-a) The plaintiff has clearly stated above that the partition deed of dated 27.10.2005 is not a genuine and perfect partition deed and it was not acted upon and it is not at all a binding one. But the 1st defendant, while giving evidence, stated that, without a prayer for declaration to declare the partition deed as null and void, the suit is not maintainable. Hence, the plaintiff filed a petition seeking amendment to add another relief of declaration and as per order the orders passed in the amendment position, the plainti is amended suitably for proper adjudication.2) In the valuation para, amend the valuation Rs.4,87,000/- as Rs.5,05,000/- and in the details of valuation column, add the following after the (b) valuation.- for declaration:For the relief of declaration to declare the partition deed dated 27.10.2005 in respect of the suit properties, as null and void, the value of the document is Rs.18,500/- Court fees paid under Section 25(d) of the Tamilnadu Court Fee Act is Rs.1,387.50/-3) In valuation para, the total valuation mentioned as Rs.4,87,000/- has to be amended as Rs.5,05,000/- and the total Court fees paid mentioned as Rs.825.50/- has to be amended as Rs.2,213/-4) In the prayer column, add the following relief as relief (b) and the existing reliefs (c), (d) and (e) have to be amended as (d), (e) and (f).(b) granting a decree of declaration to declare the partition deed dated 27.10.2005, registered as document No.2889/2005 of Magudanchavadi Sub Registrar office, as null and void.The suit is filed in the year 2007 and also the plaint contains details about the partition deed. Subsequently, the respondents/defendants filed the written statement and in the written statement specifically it is stated that the plaintiff cannot file this suit without seeking a relief of setting aside the partition deed. The said written statement was filed on 19.11.2007. The petitioner/plaintiff wanted to amend the plaint to include and declare the said partition deed as null and void and the same has to be set aside. In the written statement, it is categorically stated the petitioner/plaintiff cannot file the suit without seeking a relief of setting aside the partition deed and said details were given in paras 14, 15, 16 and 17 of the written statement. The petitioner/plaintiff has not chosen to amend the plaint and kept quite. The respondents/defendants also filed the proof affidavit, in which it is stated that the present suit is not maintainable on the ground that there is no prayer for declaration of partition deed and therefore, the same suit is null and void. The petitioner/plaintiff has not chosen to file the amendment petition immediately. Only it was filed in the year 2009, by that time, the trial also commenced and examined all the witnesses. The trial Court came to a conclusion that it was filed belatedly and no reason stated in the application for delay and further it was held that the present I.A. is filed only to protract the matter. The present application is filed under Order 6 Rules 17 and Section 151 of CPC. The suit is filed only after the amendment of the provision. The said provision was subject to interpretation by the Apex Court reported in (2009) 2 SCC 409 in the case of VIDYABAI AND OTHERS Vs. PADMALATHA AND ANOTHER and held in paras 10 to 20 as follows".10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:-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.-It is couched in a mandatory form. The court-s jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.11. From the order passed by the learned trial Judge, it is evident that the respondents had not been able to fulfil the said precondition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination-in-chief of the witness, in our opinion, would amount to -commencement of proceeding-12. Although in a different context, a three-Judge Bench of this Court in Union of India v. Major-General Madan Lal Yadav took note of the dictionary meaning of the terms -trial- and -commence- to opine: (SCC p.136, para 19)-19. It would, therefore, be clear that trial means act of proving or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary thereto. The trial commences with the performance of the first act or steps necessary or essential to proceed with the trial.-(emphasis in original)The High Court, as noticed hereinbefore, opined that filing of an affidavit itself would not mean that the trial has commenced.13. Order 18 Rule 4(1) of the Code reads as under:- 4. Recording of evidence.-(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the Court.-THIS aspect of the matter has been considered by this Court in Ameer Trading Corpn. Ltd. v. Shapoorji Data Processing Ltd. in the following terms: (SCC p.707, paras 15-16)-15. The examination of a witness would include evidence-in-chief, cross-examination or re-examination. Rule 4 of Order 18 speaks of examination-in-chief. The unamended rule provided for the manner in which -evidence- is to be taken. Such examination-in-chief of a witness in every case shall be on affidavit.16. The aforementioned provision has been made to curtail the time taken by the court in examining a witness-in-chief. Sub-rule (2) of Rule 4 of Order 18 of the Code of Civil Procedure provides for cross-examination and re-examination of a witness which shall be taken by the court or the Commissioner appointed by it.- 14. In Kailash v. Nanhku this Court held: (SCC pp.490-91, para 13)-13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word -trial- in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and up to the date of decision therein are included within the meaning of the word -trial--15. We may notice that in Ajendraprasadji N. Pandey v. Swami Keshavprakeshdasji N. this Court noticed the decision of this Court in Kailash to hold: (Ajendraprasadji case, SCC p.13, paras 35-36)-35. By Act 46 of 1999, there was a sweeping amendment by which Rules 17 and 18 were wholly omitted so that an amendment itself was not permissible, although sometimes effort was made to rely on Section 148 for extension of time for any purpose.36. Ultimately, to strike a balance the legislature applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f.1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration.-THIS Court also noticed Salem Advocate Bar Assn. v. Union of India5 to hold: (Ajendraprasadji case, SCC pp.14-15, paras 41-43)-41. We have carefully considered the submissions made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of his pleadings.42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002.43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. THIS evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief.-The ratio in Kailash was reiterated stating that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence.16. Reliance, however, has been placed by Ms Suri on Baldev Singh v. Manohar Singh wherein it was opined: (SCC pp.504-05, para 17)-17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.-It is not an authority for the proposition that the trial would not be deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.17. Reliance has also been placed by Ms Suri on Pradeep Singhvi v. Heero Dhankani7. Therein, the suit was filed in the year 1995 and, therefore, the proviso appended to Order 6 Rule 17 of the Code of Civil Procedure had no application.18. Reliance has also been placed by Ms Suri on Rajesh Kumar Aggarwal v. K.K. Modi. No doubt, as has been held by this Court therein that the court should allow amendments that would be necessary to determine the real question of the controversy between the parties but the same indisputably would be subject to the condition that no prejudice is caused to the other side.19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court-s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.20. In Salem Advocate Bar Assn. this Court has upheld the validity of the said proviso. In any event, the constitutionality of the said provision is not in question before us nor we in this appeal are required to go into the said question. Furthermore, the judgment of the High Court does not satisfy the test of judicial review. It has not been found that the learned trial Judge exceeded its jurisdiction in passing the order impugned before it. It has also not been found that any error of law has been committed by it. The High Court did not deal with the contentions raised before it. It has not applied its mind on the jurisdictional issue. The impugned judgment, therefore, cannot be sustained, which is set aside accordingly."THIS Court also in the case of D.RAMANUJAM Vs. R.PANNEERSELVAM reported in 2006 (3) CTC 27 considered the scope of the Order VI Rule 17 that amendment of pleadings cannot be allowed after commencement of trial and held in para 5 as follows5) 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 23.06.2003. The Amendment Application was filed on 15.03.2004. 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 CPC Amendment Act, 1999 has been added in Order 6, Rule 17, which reads as follows".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".From reading of the above proviso, it is clear that once the trial has been commenced, no application for amendment of 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 24.09.2003 and issues were framed on the same day. Thereafter the matter was posted for hearings on 08.03.2004, on which date, P.W.1 was examined the chief and Exhibits A-1 and A-2 were marked. Thereafter on 10.03.2004, the matter was heard and P.W.1 was also cross examined. Then, Ex.R1 was marked and posted for further evidence on 15.03.2004, 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 trial, 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.The Apex Court in the case of REVAJEETU BUILDERS & DEVELOPERS Vs. NARAYANASWAMY & SONS & OTHERS reported in 2009 (13) SCALE 241 has considered the scope of the Amendment under Order VI Rule 17 and given certain guidelines in para 67 as follows".67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?(2) Whether the application for amendment is bona fide or mala fide?(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And(6) As a general rule, the court should decline amendments if a fresh suit on the amendment claims would be barred by limitation on the date of application.Taking into consideration of the principle enunciated in the above Supreme Court judgments and also in the present case, there is a delay in filing the amendment of plaint and also there is no explanation for the said delay, the trial Court has correctly come to the conclusion and rejected the application on the ground that the same was filed belatedly. The Apex Court considered the scope of powers under Article 227 of the Constitution of India in the case of MS.CELINA COELHO PEREIRA AND OTHERS V. ULHAS MAHABALESHWAR KHOLKAR AND OTHERS reported in 2009(13) Scale 487, wherein it has been held as follows:".32. In Bathutmal Raichand Oswal v. Laxmibai R. Tarta and another, this Court held: "The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts.".33. In State through Special Cell, New Delhi V. Navjot Sandhu alias Afshan Guru and others this Court explained the power of the High Court under Article 227 thus:"Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. THIS jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised -as the cloak of an appeal in disguise-34. The aforesaid two decisions and few other decisions, namely, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, State of Maharashtra V. Milind & others, Rajneet Singh V. Ravi Prakash, came to be considered by this Court in the case of Shamshad Ahmad & Ors. v. Tilak Raj Bajaj, (deceased) through LRs. And others and this Court held:"Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law."After taking into consideration the principle enunciated in the above cited judgment and also considering the facts and circumstances of the present case, the order passed by the trial Court is in accordance with law. Learned counsel appearing for the petitioner/plaintiff relied on the various judgments cited supra. They are not relevant to the present case and those case laws are different from the facts of the present case. Therefore, it is not necessary to consider one by one. Under these circumstances, I don't find any error or illegality in the order of the trial Court as to warrant interference. It is a question of fact. It is not a perverse order and the finding rendered by the trial Court is based on the valid material and evidence. Therefore, the order passed by the trial Court is hereby confirmed.