AI Structured Summary
Not yet generated for this judgment
Judgment
Senthilkumar Ramamoorthy, J
This Civil Revision Petition is filed by the Plaintiff in O.S.No.193 of 2010, i.e. the original suit before the Trial Court, in order to set aside the order dated 19.11.2013 in I.A.No.623 of 2013 in O.S.No.193 of 2010. The said interlocutory application was filed under Order 6 Rule 17 CPC to amend the plaint in the suit filed by the Revision Petitioner against the Respondents herein.
The case of the Revision Petitioner is that the Trial Court committed a material irregularity in the exercise of jurisdiction by failing to appreciate that the Respondents herein encroached upon the suit schedule property during the pendency of the suit and that the said act necessitated the filing of the interlocutory application to amend the plaint.
On the contrary, the case of the Respondents is that the written statement in the suit was filed on 27.9.2010, whereas the application for amendment was filed on 9.7.2013 and that the proposed amendment would result in a change in the nature and character of the suit. Consequently, the Respondents state that there is no infirmity in the order of the Trial Court in dismissing the application for amendment.
At the hearing, the learned counsel for the Revision Petitioner submitted that the Respondents herein encroached upon the suit schedule property after the filing of the suit. Consequently, it became necessary to file an application to amend the plaint. In order to substantiate the said submission, the learned counsel for the Revision Petitioner referred to the affidavit in support of the interlocutory application. In specific, he referred to the averments therein that: during the pendency of the suit, the Respondents herein/Defendants therein encroached upon item 1 of the suit schedule property; that the Revision Petitioner lodged a police complaint in respect thereof but were informed by the police that it is a civil dispute and that, therefore, it is not possible to take action; that on account of lack of legal knowledge, the Revision Petitioner did not mention this in his evidence; and that only upon extensive enquiries by the Revision Petitioner's Advocate, it came to light that the cause of action had changed and that the encroachment by the Respondents herein, one year ago, should be removed and the Revision Petitioner should be put in possession of the property.
The learned counsel also referred to the nature of amendments requested for in this interlocutory application. In this regard, he referred to the Petition for amendment at page 14 of the typed set filed by Revision Petitioner, wherein the requested amendments are set out. Significantly, the Revision Petitioner has requested that paragraph 7A be added to reflect the developments during the period when the suit was pending and consequential amendments, such as the relief of handing over possession to the Revision Petitioner/ Plaintiff.
In order to substantiate the submission that the above- mentioned amendments ought to have been permitted by the Trial Court, the learned counsel for the Revision Petitioner relied upon the judgment of this Court in Rengarajan vs. Rajendran, C. R. P. (PD) (MD) No. 2132 of 2015 (the Rengarajan case), wherein this Court, at paragraph 13, referred to the judgment of the Hon'ble Supreme Court in Sampath vs. Ayyakannu (2002) 7 SCC 559 (the Sampath case), wherein it was held that an application for amendment should not be rejected because it results in a change in the nature of relief requested by the plaintiff. The said decision turned on the principle that if the plaintiff could be permitted to file a new suit because of the subsequent development, there is no reason to reject the request for amendment as it would curtail multiplicity of legal proceedings. With regard to delay in filing such an application and the consequences thereof, the Supreme Court held that amendments that are requested after the commencement of trial would be examined closely so as to ascertain the prejudice to the opposite party, whereas pre-trial amendments would be considered more liberally. In the said judgment, the Supreme Court further held that in appropriate cases the court can hold that the amendment shall not relate back to the date of presentation of the plaint and that it would apply only from the date on which the amendment application was filed. This Court, in the afore-mentioned Rengarajan case, relied upon the above cited judgment of the Supreme Court and held that an application for amendment could be entertained, in spite of being filed belatedly, provided the plea is not barred by limitation if the doctrine of relation back is not applied. The learned counsel for the Revision Petitioner concluded his submissions by contending that the decision of the Trial Court is liable be interfered with in light of the judgment of the Supreme Court and this Court.
In response, the learned counsel for the Respondents submitted that the written statement in the suit was filed on 27. 9. 2010 and that the application for amendment of the plaint was filed when the matter was posted for the Defendants' evidence. Therefore, he submitted that the application is liable to be rejected unless the Revision Petitioner convinces the Court that the application could not have been filed before the commencement of trial in spite of the exercise of due diligence. According to the learned counsel for the Respondents, the Revision Petitioner failed to convince the Trial Court that it was not possible to file the application for amendment prior to the commencement of trial in the suit.
In order to substantiate his submissions, the learned counsel for the Respondents referred to the following judgments for the propositions briefly mentioned below:
(a) L. C. Hanumanthappa vs. H. B Sivakumar 2015
(6) CTC 562, paragraph 29, wherein it was held that the doctrine of relation back should not be applied if the amendment would enable the plaintiff to circumvent the law of limitation.
(b) Minor Balakrishnan vs. Gunasekaran 2012 (5) CTC 37, paragraph 12, wherein it was held that the proviso to Order VI Rule 17 CPC was introduced by an amendment in order to avoid surprises after the commencement of the trial.
(c) Chinnapillai vs. Angappa Udayar (2000) MLJ (Supp.) 667, paragraph 12, wherein it was held that amendments that are intended to overcome admissions made in cross-examination, or that have the effect of changing the cause of action or altering the nature and character of the suit should not be permitted.
By relying upon the above mentioned judgements, the learned counsel for the Respondents concluded his submissions by stating that the impugned order is not liable to be interfered with.
The pleadings and oral submissions of both sides were considered carefully. On perusal of the plaint in the original suit filed by the Revision Petitioner, it is clear that the suit is for declaration of title and permanent injunction restraining the Respondents herein from interfering with the possession of the Revision Petitioner. In view of the fact that the suit is for declaration of title to the suit schedule property and not only for injunctive relief, the fact that the Revision Petitioner's/Plaintiff's title is refuted by the Respondents/Defendants is not material for purposes of considering the present Revision Petition or the interlocutory application out of which this petition arises.
This leads to the next question as to whether the amendment with regard to handing over possession instead of protecting the possession of the Revision Petitioner/Plaintiff ought to be permitted. In this regard, the case of the Revision Petitioner/Plaintiff is that the Respondents/ Defendants encroached on the suit property after the filing of the suit and that, therefore, it is necessary to amend the plaint. On the contrary, the Respondents state that they were in possession even before the filing of the suit. The impugned order of the Trial Court may be referred to in this regard. The Trial Court referred to the cross-examination of PW1 wherein it was stated that 94 cents of the suit schedule property were encroached upon by the Respondents/Defendants one year before the filing of the suit. By referring to the said admission, the Trial Court entered findings that the Revision Petitioner/Plaintiff could have requested relief in respect of such encroachment at the time of filing of the suit. In addition, the Trial Court held that even if the encroachment occurred one year before the date of filing of the petition for amendment, the said petition could have been filed immediately after the encroachment. After adverting to the above mentioned facts, the Trial Court took into consideration the fact that the request for amendment was made at the trial stage and that the Revision Petitioner failed to prove that in spite of the exercise of due diligence, the amendment petition could not be filed at the pre-trial stage. On the said basis, the application for amendment was rejected.
In so holding, the Trial Court did not take into account the fact that the suit is for declaration of title in respect of three items aggregating to about 1.71 acres, that definitive conclusions cannot be drawn at this stage with regard to the date of alleged encroachment and that multiplicity of proceedings could be avoided by permitting the amendment subject to safeguards as discussed below.
If the overall facts and circumstances are taken into consideration, including the critical fact that the suit is for both declaration of title and injunction, the Revision Petitioner is entitled to some latitude to amend the plaint in light of alleged subsequent events, which allegedly necessitated changes to the relief requested in the suit. However, such amendment cannot be permitted to enable circumvention of the law of limitation.
Accordingly, as held by the Hon'ble Supreme Court in the Sampath case and the Hanumanthappa case, both cited supra, this is not an appropriate case for the application of the doctrine of relation back in respect of the amendment. Nevertheless, the order of the Trial Court is liable to be and is hereby set aside and, consequently, the amendment application is allowed. However, the amendment shall be effective only from the date of filing of the application for amendment. It is further made clear that it is open to the Respondents herein to raise the plea of limitation in respect of the amendment and, if such plea is raised, the Trial Court shall frame an additional issue, in this regard, and decide the same while disposing of the suit. This Civil Revision Petition is disposed of on the above terms. No costs. Consequently, the connected miscellaneous petition is closed.