D PURUSHOTHAMAN Vs. KUPPA BAI

JUDGEMENT

(1.) THE petitioner is first defendant in O.S.No,6 of 2000 on the file of the District Munsif Court, Chengalpattu. THE suit is for declaration that the plaintiff is the absolute and exclusive owner of the suit property and for consequential injunction restraining the defendants from in any way disturbing the plaintiff's peaceful possession and enjoyment of the suit property.

(2.) THE trial started and the plaintiff's side evidence was over. At the time of leading the defendant's evidence, the first respondent/plaintiff filed a petition in I.A.No,448 of 2008 under Order 6, Rule 17 of C.P.C. to amend the plaint.

(3.) IN the Additional Counter it is pleaded that the amendment is of the nature of legal plea and that the Court can always presume law and it need not be pleaded amendment sought for is totally inconsistent with the previous pleadings. 6. Learned District Munsif, Chengalpattu allowed the petition by observing that the plea is not changing the cause of action nor introducing any new case and no prejudice would be caused to the other side and the contentions raised by the first defendant are not sustainable.7. IN the plaint it is stated that the property originally belonged to Mannar Naidu by means of sale deed, who died intestate leaving behind him, his wife Chinnammal and as she is the sole legal heir she derived perfect right and title to schedule mentioned property, that she sold the properties to the plaintiff under two sale deeds dated 23.09.1994 and 26.09.1994 by means of which the plaintiff has become the absolute owner. These allegations are denied in the written statement filed by this petitioner, by pleading as follows:"After the death of Mannar Naidu, who was living along with Devaraja Naidu but had no issues, the widow remained with the family of Devaraja Naidu himself and since women could not claim any share in the joint family ancestral properties of the sale, when it was discussed in a Panchayat of the village, Devaraja Naidu come forward to execute a Settlement Deed in her favour for her life time to enjoy the properties by herself and later on her death to devolve on his legal heirs."It is the gist of the above said statements that even though Chinnammal could not inherit the property as widow of deceased Mannar Naidu, his brother Devaraja Naidu came forward to execute a settlement deed in her favour for her life time.8. The particulars of the amendment as contained in the amendment petition is as follows:"After para 9 in the plaint, add a new para as para No,9A as it is submitted that even as per the maintenance deed dated 02.07.1945, Chinnammal because the absolute owner of the suit properties as per law and she had every right to alience the suit properties to any 3rd party, including the plaintiff and others."9. Learned counsel for the petitioner would submit that as per the amended C.P.C, the first respondent should have established before the Court that in spite of her due diligence, she could not raise the point before the trial started and since she has been well acquainted with the fact of filing written statement itself, filing application for amendment after a long time would dis-entitle her from getting the relief. It is his further contention that since it has been categorically pleaded in the written statement about the life interest, the first respondent should have acted promptly and outcome of her inaction would rejection of her application.10. Conversely, learned counsel for the respondent would contend that inasmuch as the written statement is silent as to any particulars of the deed which allegedly gave life interest to Chinnammal and only on production of Ex.B 24, the fact could be found out. 11. This Court finds considerable force in the arguments advanced by the learned counsel for the respondents. From the crucial portion of the written statement which was extracted above, it is discerned that two particulars are missing, which are important factors to be borne in mind. First thing, absence of date of document and the second is, wrong mentioning of nomenclature of the document. Even though in the written statement, the document is described to be a Settlement Deed, Ex.B.24 is titled as "Maintenance Deed" (P$Ptdhkr gjjpuk). Had the petitioner furnished the correct particulars in written statement about the existence of particular document, with reference to date etc., then the question of filing of amendment application without loss of time would arise. IN the absence of appropriate particulars in the written statement, it is futile to contend that the first respondent had got every opportunity to exercise her diligence anterior to opening of the trial.12. Learned counsel for the petitioner placed reliance on the decision of Supreme Court (2008) 8 MLJ 307 (SC) [ Rajkumar Gurawara (Dead) thr. Lrs. v. S.K. Sarwagi & Co. Pvt. Ltd., and Another] wherein Their Lordships have held that in spite of clear information in reply notice and specific plea taken in the written statement, the plaintiff did not chose to take steps to get the plaint amended suitably which would dis-entitle him to seek amendment of the pleadings after the commencement of the trial. The relevant portion of the decision goes thus:-"It is clear that in spite of reply notice and specific plea taken in the written statement of D-1, the plaintiff did not choose to take steps to get the plaint amended suitably and instead allowed the suit to go on and examined the witnesses on his behalf and cross-examined the witnesses produced by the defendants. Only during the stage of arguments, plaintiff came up with application under Order 6 Rule 17 seeking amendments of pleadings. IN the light of the factual details, such as clear information in the reply notice and specific plea in the written statement of D-1 which contained details of Government Orders leasing out the suit property in favour of D-2, the action of the plaintiff at the stage of argument cannot be permitted. Admittedly, the plaintiff failed to adhere to the said recourse at the appropriate time. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected."13. Learned counsel for the respondents would draw attention of this Court to the following three decisions rendered by this Court. IN 2006 (2) M.L.J. 26 [Deivendran v. Subbiah Nadar and Others], learned Judge of this Court while dealing with the application under Order 6 Rule 17, has observed that when one can come to a conclusion that it is only at a later stage the respondents actually realized the mistake that had crept in and had come forward with the application and as observed by the trial Court, there is no real alteration of the case, but it is only the question of allocation of the shares and that the court below was satisfied that the amendment has to be allowed and that there is no necessity to interfere with the order challenged.14. Another decision reported in 2007 (3) MLJ 897 [Jayamani and another v. District collector, Coimbatore District, Coimbatore and others] it is held that order 6 Rule 17 imposes an obligation on the trial Court to give finding as to the reason for the petitioners in not filing the amendment petition, even after the written statement is filed informing about the cancellation of natham patta, especially when it is admitted that xerox copy of such order was produced only when D.W.1 was examined in September, 2003.15. IN 2008 (5) CTC 548 [Puttamma and others v. Munusamy and 20 others] it is held that the power to allow amendment should be liberally exercised and that aim of allowing amendment is to avoid plurality of proceeding and the amendment which does not totally alter character of an action, ought to be granted as a matter of course, however, care should be taken that prejudice or injustice are not inflicted on other party.16. As far as the applicability of the proviso to Order 6 Rule 17 is concerned, it has been settled that the amendments in a suit which were filed anterior to the advent of the amendment of the Code of Civil Procedure in 2002, can be considered on the basis of the earlier provision under Order 6 Rule 17 of C.P.C and rigidity in entertaining such applications need not be shown. IN other words, if the suits were filed earlier to amendment Act in 2002, even post trial amendments can be liberally entertained. While dealing with the effect of the amended provision of the Code of Civil Procedure in respect of Order 6 Rule 17 by inserting the proviso, which came into force earlier on 1.7.2002, a Full Bench of this Court in the judgment rendered in Hi.Sheet INdustries, a partnership firm, carrying on business at 61-D, D.V. Road, Ambur Town, Vellore District v. Litelon Limited, having its office at No,68, Sipcot INdustrial Complex, Hosur, Rep. by its Managing Partner (2007)1 M.L.J. 320 : (2006) 5 CTC 609 by relying upon the earlier decisions rendered in Rathinam @ Samuthiram Ammal v. Syed Abdul Rahim (2005) 3 MLJ 94 : (2005) 3 CTC 321 and Radhakrishnan v. Pattu Ammal (2006) 5 CTC 396, has held in categoric terms that the proviso to Order 6 Rule 17 of the Code of Civil Procedure is not applicable, in respect of the suits/pleadings instituted before the commencement of the amended code. The relevant passage of the Full Bench is as follows:"11.19. IN the instant case, the suit is instituted in October, 1990. The amendments came into force with effect from 01.07.2002. Therefore, the proviso to Rule 17 of Order 6, C.P.C. is not applicable in the instant case, however, we clarify that those amendments under Act 22 of 2002 are applicable to the pleadings instituted with effect from 1.7.2002."17. Following the principles laid down in the judgment of the Apex Court above stated, it must be held that if the written statement contains specific plea of clear intimation about the date and nomenclature of the document concerned, then it could be decided that the inaction on the part of the plaintiff to amend the plaint would lead to rejection of the amendment application. But the facts available in this case on hand are distinguishable. As adverted to supra, the written statement does not disclose adequate and appropriate particulars so as to enable the first respondent to take steps at appropriate time. 18. IN order to allow the application for amendment of the pleadings filed under Order 6 Rule 17 after the commencement of the trial, the Court should get satisfaction and it is bound to record reasons as to the fact that the applicant could not raise the matter before the commencement of trial, in spite of his due diligence. As far as this case is concerned grounds are available for the Court to record such satisfaction as to the exercise of diligence of the party. The lower Court has observed that the proposed amendment is only a legal plea and the same would not change the cause of action in order to introduce any new case and there would be no prejudice to the other side. 19. It is apposite to observe that no injury to the rights of the petitioner would be caused by entertaining this application, since the amendments sought to be incorporated is on the strength of the pleadings in the written statements and the contents available in Ex.B.24 and the first respondent derived knowledge as to the particulars of amendment only after production of the same. Hence there was no occasion for her to exercise her due diligence earlier to commencement of trial. There is no perversity or infirmity found in the order passed by the Court below and the order challenged has to be confirmed. Accordingly, it is confirmed. IN view of the above, the Civil Revision Petition is devoid of merits and suffers dismissal.IN fine, the Civil Revision Petition is dismissed. No costs. Consequently, connected M.P. is also dismissed.