Laila And Others vs M.A.S. Ahamed Mohiden

The revision petitioner is the plaintiff in the suit in O.S.No.574 of 2012 on the file of the learned 1st Additional District Munsif Court, Tirunelveli and in the suit, the plaintiffs sought for permanent injunction against the defendant, his men, not to alienate and encumber the suit schedule property to 3rd parties. During pendency of the suit, the plaintiffs filed an application in I.A.No.16 of 2015 in O.S.No.574 of 2012 for suitable amendment in the plaint,, namely, replacing Section 27(c) of the Tamil Nadu Act with Section 25(B) of the Act in Paragraph No.8 of the plaint as well as converting the relief from permanent injunction into the one of declaration with the consequential prayer of injunction and the said application was dismissed by the Trial Court, stating that the application has been filed after a lapse of several years and that allowing the application would cause irreparable loss to the respondent. Aggrieved by the said order, the revision petitioners / plaintiffs are before this Court.

It is the case of the revision petitioners that originally, they had filed a suit for permanent injunction against the interference by the respondents over the schedule mentioned properties 1 to 4 and subsequently, the title of the plaintiffs to the properties itself was disputed by the respondent, they were compelled to file an application for amendment as stated supra. It is the further case of the petitioner that originally, the properties were belonging to one Sadaiyappa Pillai and after several hands, the properties finally devolved upon Sankaralingam, S/o.Ramasamy from whom the plaintiffs purchased the properties. It is submitted by the petitioners that though the legalheirs of Ramasamy filed O.S.No.124 of 2012 before Tirunelveli Additional Sub-Court, demanding shares in the properties, subsequent to the amicable settlement, the plaintiffs have become the absolute owners of the properties. Suppressing all these facts, the respondent claims to have obtained the properties from one Gomathi Nayagam on 22.01.1997 by way of General Power of Attorney and therefore, it is incumbent upon the plaintiffs to prove their title to the properties, for which, the amendment sought for is absolutely necessary.

The revision petitioners state that though there is no negligence on the part of the plaintiffs, the Trial Court has erroneously held that the application had been filed after commencement of trial and the question regarding limitation has to be decided only at the time of trial and the dominant purpose of allowing the amendment is to minimize the litigation. In support of his submission, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court in the case of Pankaja and another vs. Yellappa (D) LRs. & others, reported in 2004 (4) CTC 231, wherein it has been held as follows:

"17. We have already noted, hereinabove, that there is an arguable question whether the limitation applicable for seeking the relief of declaration on facts of this case falls under Entry 58 of the Limitation Act or under Entries 64 or 65 of the Limitation Act which question has to be decided in the trial, therefore, in our view, following the judgment of this Court in the case of Ragu Thilak D.John (supra), we set aside the impugned orders of the Courts below, allow the amendment prayed for, direct the Trial Court to frame necessary issue in this regard and decide the said issue in accordance with law bearing in mind the law laid down by this Court in the case of L.J.Leach and Co.Ltd. & another."

Therefore, it is prayed that the order of the Trial Court needs interference by this Court and this petition has to be allowed.

On the contrary, learned counsel for the respondent / defendant has contended that the respondent / defendant was examined in chief in the suit and the case was posted for cross examination of the defendant, the plaintiffs filed such a vexatious application for amendment on the reasoning that the defendant disputed their title, that too, after expiry of many years. According to the defendant, the main intention of the plaintiffs is to drag on the proceedings and the said act will be detrimental to the defendant. Learned counsel for the respondent has relied upon a judgment of this Court in the case of Shanmuga Nadar vs. S.Kamala and others, reported in 2014-3-LW-121 to contend that if the act is prejudicial to other side, then the amendment cannot be allowed. The relevant paragraph of the judgment is extracted as under:

"17. In this connection, Mr.M.Thirunavukkarasu, learned counsel appearing for the revision petitioner / plaintiff is not able to convince the Court saying that in spite of due diliegence, the revision petitioner/plaintiff could not have raised the matter before the commencement of trial. Therefore, it is presumed from the available materials that already the revision petitioner/plaintiff knew the existence of fact. However, he simply remained and slept over his right without exercising his due diligence and therefore for the latches on his part, he has to suffer and if the amendment is allowed to be carried out, it would certainly cause injustice to the other side. As decided in Haridas Girdharidas's case (cited supra), the settled principle is that amendment can be made without injustice to the other side and if there is likelihood of causing injustice to the other side, then the amendment cannot be allowed.

Keeping in view of the above facts, this Court is of the view that the relief sought for by the revision petitioner/plaintiff, to amend the plaint, cannot be granted and therefore, the revision petition is liable to be dismissed."

Hence, it is argued that no leniency can be shown to the plaintiffs for amendment and the petition be dismissed.

Heard the learned counsel on either side and perused the material documents available on record.

Initially, the revision petitioners/plaintiffs had sought for the relief of permanent injunction against the respondent/defendant and after the written statement being filed by the defendant, especially on reading Paragraph No.8 of the written statement, the plaintiffs have raised from the sleep and knocked at the doors of the Court for amendment. According to the petitioners, they had purchased the properties from one Gomathi Nayagam and pursuant to the expiry of the General Power of Attorney on account of his death, they did not seek the relief of declaration. This contention cannot be accepted, because even after coming to know of the fact that there is a cloud over the title of the property, the revision petitioners were not diligent enough to assert their right as per the provision to Order VI Rule 17 CPC, which stipulates that the pleadings can be allowed to be either altered or amended at any stage of the proceedings, if such amendments will determine 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.

Admittedly, in this case, the trial has already commenced and the case is posted for cross examination of DW1 and at this stage, the plaintiffs sought for such amendment without showing their due diligence to approach the Court in time. From the typeset of papers, it is obvious that the written statement was filed by the defendant on 30.03.2013, in which the title to the property in respect of the plaintiffs was disputed and after realizing their mistake, the plaintiffs filed the Interlocutory Application on 27.10.2014 after a lapse of nearly 1½ year. Though there can be no straight jacket formula to allow or disallow the petition for amendment, as the same depends on the factual background of each case, in the present case on hand, allowing the petition after the gap of about six years from the institution of the suit, in favour of the plaintiffs, that too, after commencement of the trial, will no doubt cause great prejudice to the defendant. Therefore, this Court is of the view that the order of the Trial Court will hold good and need not be rewritten.

In the result,

a) this civil revision petition is dismissed, confirming the order dated 24.04.2015 passed by the learned I Additional District Munsif, Tirunelveli in I.A.No.16 of 2015 in O.S.No.574 of 2012;

b) the learned I Additional District Munsif, Tirunelveli is directed to dispose of the suit in O.S.No.574 of 2012 within a period of four months from the date of receipt of a copy of this order without giving any unnecessary adjournment to either parties and the parties shall cooperate for disposal of the suit in time as stipulated above.

No costs. Consequently, connected miscellaneous petition is closed.