CASE NO.:
Appeal (civil) 5839 of 2002
PETITIONER:
SAMPATH KUMAR
RESPONDENT:
AYYAKANNU AND ANR.
DATE OF JUDGMENT: 13/09/2002
BENCH:
R.C. LAHOTI & BRIJESH KUMAR
JUDGMENT:
JUDGMENT
2002 Supp(2) SCR 397
The following Order of the Court was delivered : Leave granted.
The plaintiff-appellant filed a suit for issuance of permanent prohibitory
injunction alleging the plaintiff-appellant’s possession over the suit
property which is an agricultural land. The defendant in his written
statement denied the plaint averments and pleaded that on the date of the
institution of the suit he was in possession of the suit property and
therefore the suit for injunction was liable to be dismissed. The suit was
instituted in the year 1988.
In the year 1999, but before the commencement of the trial, the plaintiff
moved an application under Order VI Rule 17 CPC seeking an amendment in the
plaint. It is alleged in the application that in January 1989, that is,
during the pendency of the suit, the defendant has forcibly dispossessed
the plaintiff. On such averment the plaintiff sought for relief of
declaration of title to the suit property and consequential relief of the
delivery of possession. The suit was proposed to be valued accordingly
along with payment of court fee. The prayer for amendment was opposed on
behalf of the defendant-respondent submitting that the plaintiff was
changing the cause of action through amendment which was not permissible
and also on the ground that the defendant has perfected his title also by
adverse possession over the suit property rendering the suit for recovery
of possession barred by time and therefore a valuable right had accrued to
the defendant which was sought to be taken away by the proposed amendment.
The Trial Court rejected the application for amendment. During the course
of its order the Court observed that the appropriate course for the
plaintiff was to bring a new suit. This order has been maintained by the
High Court in revision. Although the plaintiff had sought for some more
amendment so as to correct the description of the suit property; however
the pan of the prayer for amendment was not later pressed by the plaintiff
before the Court.
The short question arising for decision is whether it is permissible to
convert through amendment a suit merely for permanent prohibitory
injunction into a suit for declaration of title and recovery of possession.
It is true that the plaintiff on the averments made in the application for
amendment proposes to introduce a cause of action which has arisen to the
plaintiff during the pendency of the suit. According to the defendant the
averments made in the application for amendment are factually incorrect and
the defendant was not in possession of the property since before the
institution of the suit itself.
In our opinion, the basic structure of the suit is not altered by the
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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 one
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 plaintiffs 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.
In Mst. Rukhmabai v. Lala Laxminarayan and Ors., AIR (1960) 335, this Court
has taken the view that where a suit was filed without seeking an
appropriate relief, it is a well settled rule of practice not to dismiss
the suit automatically but to allow the plaintiff to make necessary
amendment if he seeks to do so.
Order 6 Rule 17 of the 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-form 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. Pre-trial amendments are allowed more liberally than those
which are sought to be made after the commencement of the trial or after
conclusion thereof. In 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 strait-jacket 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 observation in Siddalingamma and Anr. v. Mamtha Shenoy,
[2001] % SCC 561.
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 culcating 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.
On the averments made in the application, the same ought to have been
allowed. If the facts alleged by plaintiff are not correct it is open for
the defendant to take such plea in the written statement and if the
plaintiff fails in substantiating the factual averments and/ or the
defendant succeeds in substantiating the plea which he would obviously be
permitted to raise in his pleading by way of consequential amendment then
the suit shall be liable to be dismissed. The defendant is not prejudiced,
more so when the amendment was sought for commencement of the trial.
For the foregoing reasons, the appeal is allowed. The impugned orders of
the High Court and the Trial Court are set aside. The plaintiff is
permitted to incorporate the pleas sought to be raised by way of amendment
in the original plaint foregoing the plea to the extent given up by him
before the Trial Court, However, in view of the delay in making the
application for amendment, it b directed that the plaintiff shall pay a
cost of Rs. 2,000 (Rupees Two Thousand only) as a condition precedent to
incorporating the amendment in the plaint. The prayer for declaration of
title and recovery of possession shall be deemed to have been made on the
date on which the application for amendment was filed.
SECOND JUDGEMENT
Rengarajan vs Rajendran on 5 May, 2017
Equivalent citations: AIRONLINE 2017 MAD 92
Author: G.Jayachandran
Bench: G.Jayachandran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.05.2017
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
C.R.P(PD)(MD)No.2132 of 2015
and
M.P(MD)No.1 of 2015
1.Rengarajan
2.Venkatesh Mathavan .. Petitioners/
Plaintiffs
Vs.
1.Rajendran
2.Padma .. Respondents/
Defendants
This revision petition is filed praying to set aside the fair and decretal order dated 11.08.2015 made
in I.A.No.313 of 2015 in O.S.No.43 of 2014 on the file of the District Munsif, Thiruvaiyaru.
2.Heard the learned counsel appearing for the revision petitioners and the learned counsel
appearing for the respondents.
3.This revision petition is directed against the dismissal of the application filed by the plaintiffs to
amend the plaint under Order 6 Rule 17 of C.P.C.
4.The brief facts of the case is that the revision petitioners, who are the plaintiffs, have filed the suit
for bare injunction against the respondents herein on the ground that the suit schedule property was
allotted to the plaintiffs, as per the partition took place between the brothers on 12.10.1966. As per
the partition deed, the 'C' schedule property, which is now the subject matter of the suit, was allotted
to the first plaintiff. On 02.01.2009, the first plaintiff has settled the property in favour of the son
who is shown as second plaintiff. While so, the first defendant, misusing the power of attorney
document given in his favour by the first plaintiff and his brother in the year 2003, has alienated the
suit property in favour of his wife on 30.01.2009, knowing fully well that a week ago the first
plaintiff has settled the property in favour of his son, the second plaintiff. Since, there was a threat of
trespass and illegal encroachment, initially suit for bare injunction was filed. But, later in the course
of cross examination, having found that the property has been transferred to the second defendant
by misusing the power of attorney document issued in favour of the first defendant, it has now
become necessary to amend the plaint by including the reliefs of declaration and possession.
5.The said petition for amendment has been opposed by the defendants on the ground that the
petition for amendment is not maintainable after commencement of trial. The plaintiff has not
disclosed any cause of action for seeking relief of possession. While filing the injunction suit itself, it
was made known to the first plaintiff that he has executed the power of attorney after receiving full
consideration and also given possession to the first defendant. Pursuant to the power of attorney, he
has sold the property to his wife on 30.01.2009. Having made known about this fact even while
replying to the pre-suit notice, the plaintiff ought to have filed composite suit for all the reliefs
whatever he thought fit and entitled. Having failed to claim the reliefs of declaration and possession
at the inception, the present amendment petition to include the reliefs of possession as well as the
declaration of title is unsustainable under Proviso to Order 6 Rule 17. Further, the defendants will be
put grave prejudice if such an amendment is allowed, since the relief of declaration is barred by the
limitation.
6.The said contention of the respondents/defendants has been accepted by the Trial Court and the
Trial Court has dismissed the application. Aggrieved by the said order of dismissal, the plaintiffs
have filed this revision petition on the ground that the relief sought is not barred by limitation.
Though, it was filed after commencement of trial, in the circumstances stated by the revision
petitioners, amendment ought to have been allowed. The fraudulent act of misusing the power of
attorney document and creating a sale deed in favour of his own wife by the first defendant, has
come to light only during the examination of the first defendant. The very fact that after the
settlement of the property in favour of the second plaintiff by the first plaintiff on 02.01.2009, which
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has been registered on 23.01.2009, the first defendant knowing about the settlement, has made use
of the defunct power of attorney document and had created sale deed in favour of his wife one week
later, that is on 30.01.2009. Since, the said fraudulent transaction has come to light in the course of
the cross-examination of the defendant (D.W.1), it is just and necessary to permit the plaintiffs to
carry out the amendment sought. Further, there is also an error in the extent of the suit property.
Hence, the same should be amended for proper identification.
7.The facts of the case is that originally the plaint was laid on the premise that the property is owned
and possessed by the plaintiffs whereas the defendant trying to trespass into the land and occupy it
by force. The consistent stand of the defendants is that they were cultivating tenants under the
plaintiff's father and they continued to be in possession. In the year 2003, a power of attorney was
executed by the first plaintiff after receiving full sale consideration. While so, on 30.01.2009, the
first defendant has sold the property to the second defendant on the strength of the power of
attorney executed by the first plaintiff. Though this fact was made known to the plaintiffs by way of a
reply to the pre-suit notice and also in the written statement, the plaintiffs have chosen to amend
the plaint and include the reliefs of declaration and possession only after the commencement of the
trial. Further as pointed out by the Trial Court, the revision petitioners herein have not even
disclosed when and how the defendants have taken possession of the property. Nowhere in their
petition, they have mentioned date or circumstances under which the defendants have taken
possession of the property. When the suit was originally filed on the premise that the plaintiffs are in
possession of the property and their peaceful possession is likely to be disturbed by the defendants,
all of a sudden, the plaintiffs have thought fit to amend the prayer after the commencement of the
trial. Order 6, Rule 17 of C.P.C. reads as under:
?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?.
8.Catena of Judgments would say that even after commencement of trial, if the Court deems fit and
necessary to permit amendment of the pleadings even after the commencement of trial, if it will not
prejudice to the defendants and the relief sought is not barred by limitation.
9.The learned counsel for the revision petitioners has cited some of those Judgements which are
listed as under:
(i)(2009)10 Supreme Court Cases 626 [Surender Kumar Sharma V. Makhan Singh].
(ii)(2015)4 Supreme Court Cases 182 [Mount Mary Enterprises V. Jivratna Medi
Treat Private Limited].
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(iii)2015-5-L.W.761 [Kaleeswaran V. Uma].
(iv)2009 (3) CTC 522 [UCO Bank, Chetpet Branch V. Nest Tours & Travels P.Ltd.,
rep. by its Director, Ram and Others.
10.In all these Judgements, the underlying principle is that amendment can be allowed in any stage,
provided the character of the suit and limitation are not affected or altered.
11.In the case in Surender Kumar Sharma V. Makhan Singh cited supra, the Hon'ble Supreme Court
had an occasion to consider belated plea for amending the plaint and whether prayer for
amendment of plaint allowed will change the nature and character of the suit. In so far as, belated
prayer for amendment is concerned, the Hon'ble Apex Court has held under:
?As noted herein earlier, the prayer for amendment was refused by the High Court on
two grounds. So far as the first ground is concerned i.e., the prayer for amendment
was a belated one, we are of the view that even if it was belated, then also, the
question that needs to be decided is to see whether by allowing the amendment, the
real controversy between the parties may be resolved. It is well settled that under
Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion
have been conferred on the Court to allow amendment of the pleadings to a party in
such a manner and on such terms as it appears to the Court just and proper. Even if,
such an application for amendment of the plaint was filed belatedly, such belated
amendment cannot be refused if it is found that for deciding the real controversy
between the parties, it can be allowed on payment of costs. Therefore, in our view,
mere delay and laches in making the application for amendment cannot be a ground
to refuse the amendment?.
12.In so far as the second principle whether the amendment if allowed will change the nature and
character of the suit, in the case in hand, the real controversy between the parties is in respect of the
suit property which admittedly stands in the name of the plaintiffs and the defendant's father was a
cultivating tenant under the plaintiffs. While the plaintiffs claim that the possession is with them
and had filed the suit for injunction, the contra case of the defendants is that as a cultivating tenant,
they are in possession of the property for years together and the possession is not with the plaintiffs.
Further, by virtue of power of attorney document executed by the first plaintiff in favour of the first
defendant, the first defendant has sold away the property to the second defendant. Therefore,
altering the suit for bare injunction into suit for title and recovery of possession, amounts to
changing the nature and character of the suit prejudicing the defendants.
13.In an identical situation, when the matter was taken up to the Hon'ble Supreme Court in
Sampath Kumar V. Ayyakannu and Another, [(2002)7 SCC 559], where, the Hon'ble Supreme Court
has dealt an application for amendment made after 11 years from the date of institution of the suit to
convert through amendment a suit for permanent prohibitory injunction into the suit for
declaration of title and recovery of possession. The words of the Hon'ble Supreme Court, which are
extracted below:
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?The short question arising for decision is whether it is permissible to convert
through amendment a suit merely for permanent prohibitory injunction into a suit
for declaration of title and recovery of possession.
It is true that the plaintiff on the averments made in the application for amendment
proposes to introduce a cause of action which has arisen to the plaintiff during the
pendency of the suit. According to the defendant the averments made in the
application for amendment are factually incorrect and the defendant was not in
possession of the property since before the institution of the suit itself.
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 one 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 plaintiffs
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 of the 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-form 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.
Pre-trial amendments are allowed more liberally than those which are sought to be
made after the commencement of the trial or after conclusion thereof. In 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 case 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
strait-jacket formula can be laid down. The fact remains that a mere delay cannot be
a ground for refusing a prayer for amendment?.
14.In this case, the amendment is sought after commencement of trial. Though, the fact of alienation
of the suit property by the first defendant to and in favour of the second defendant has been brought
to the notice of the plaintiffs as early as in the year 2013, both in the reply to the pre-suit notice and
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in the written statement, the plaintiff has thought fit to amend the prayer only after commencement
of the trial.
15.The apprehension of the defendants is that if the prayer of declaration and possession is included
by way of amendment which is barred by limitation, if suit is filed afresh, the right accrued to the
defendants will be jeopardized. The amendment once incorporated relates back to the date of suit
and therefore a belated plea of declaration and recovery of possession which is otherwise barred by
limitation, cannot be entertained through amendment.
16.The learned counsel for the revision petitioners submits that the illegal transaction of the
property by the first defendant in favour of the second defendant is only in the year 2009, whereas
the suit was filed in the year 2014 and the amendment was sought by I.A.No.313 of 2015 filed on
06.06.2015. Since the relief sought is well within the period of limitation, to avoid multiplicity of
proceedings, amendment sought by the plaintiffs ought to have been allowed by the Trial Court.
17.Considering the rival submissions of the respective counsels, as pointed out by the Hon'ble
Supreme Court in Sampath Kumar V. Ayyakannu and Another, [(2002)7 SCC 559], by allowing the
amendment incorporating reliefs of declaration and possession in the suit filed for injunction, will
avoid the multiplicity of legal proceedings. At the same time, if the doctrine of relation back in the
context of amendment of pleading is applied, the plaintiff may have the advantage of saving
limitation, which cannot be entertained. The answer for that issue is given by the Hon'ble Supreme
Court in the same Judgement in In Re Sampath Kumar in the following words:
?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?.
18.In the recent Judgement of the Hon'ble Supreme Court in L.C.Hanumanthappa represented by
his L.Rs. V. H.B.Shivakumar after referring the Judgements of the Hon'ble Supreme Court and High
Court dealing Order 6 Rule 17 including Sampath Kumar V. Ayyakannu and Another, [(2002)7 SCC
559] has concluded as under:
?Applying the law thus laid down by this Court to the facts of this case, two things
become clear. First, in the original written statement itself dated 16th May, 1990, the
defendant had clearly put the plaintiff on notice that it had denied the plaintiff's title
to the suit property. A reading of an isolated para in the written statement, namely,
para 2 by the Trial Court on the facts of this case has been correctly commented upon
adversely by the High Court in the judgement under appeal. The original written
statement read as a whole unmistakably indicates that the defendant had not
accepted the plaintiff's title. Secondly, while allowing the amendment, the High Court
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in its earlier judgement dated 28th March, 2002, had expressly remanded the matter
to the Trial Court, allowing the defendant to raise the plea of limitation. There can be
no doubt that on an application of Khatri Hotels Private Limited (Supra), the right to
sue for declaration of title first arose on the facts of the present case on 16th May,
1990 when the original written statement clearly denied the plaintiff's title. By 16th
May, 1993, therefore a suit based on declaration of title would have become
time-barred. It is clear that the doctrine of relation back would not apply to the facts
of this case for the reason that the Court which allowed the amendment expressly
allowed it subject to the plea of limitation, indicating thereby that there are no special
or extraordinary circumstances in the present case to warrant the doctrine of relation
back applying so that a legal right that had accrued in favour of the defendant should
be taken away.
19.Applying the principle laid down in the above Judgement, even though the plea to amend the
plaint has been filed by the plaintiff belatedly, it can be entertained, if such leave will avoid
multiplicity of proceedings, provided the plea is not barred by limitation, if the doctrine of relation
back is not applied.
20.In this case even if doctrine of relation back is not applied ex facie the relief is not barred by
limitation. The plaintiff was put to notice about the alienation only on 08.05.2013 through the reply
notice of the respondents/ defendants. Later, the same has been reiterated in the written statement
dated 04.07.2014. The present application for amendment is filed on 06.06.2015, well within the
period of 3 years. Therefore, the declaration prayer prima faciely is not barred by limitation.
Therefore, going by the guidelines of the Hon'ble Supreme Court laid down in Surender Kumar
Sharma V. Makhan singh, Sampath Kumar V. Ayyakannu and Another and L.C.Hanumanthappa
(Since dead) Represented by His LRs. V. H.B.Shivakumar, the plaintiff is entitled to seek
amendment of his plaint, provided he established through evidence that the relief is not barred by
limitation. Therefore, this Court considers merit in the revision petition. Hence, this revision
petition is allowed. The order dated 11.08.2015 passed in I.A.No.313 of 2015 in O.S.No.43 of 2014 by
the District Munsif, Thiruvaiyaru, is hereby set aside and the petition is allowed, preserving the right
of respondents/defendants, questioning the declaration relief on the point of limitation. For the
purpose of reckoning limitation, the amendment permitted shall not date back to the suit and it
shall be deemed to have been brought before the Court on the date on which the application seeking
the amendment was filed, i.e., 06.06.2015.
21.In the result, this revision petition is allowed with the above said observation. No order as to
costs. Consequently, connected Miscellaneous Petition is closed.
To
1.The District Munsif Court, Thiruvaiyaru.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..
Rengarajan vs Rajendran on 5 May, 2017
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