CRP PD/1227/2003 of G.MARY SUSEELA, Vs MICHEAL on 24 December 2003

:O R D E R

The above civil revision petition has been filed under Section115 of the Code of Civil Procedure praying to set aside the fair and decretalorder dated 7.2.2003 made in I.A.No.601 of 1997 in O.S.No.31 of 1997 by theCourt of Principal District Munsif, Kuzhithurai.

2. On a perusal of the materials placed on record and upon hearing the learned counsel for both, it comes to be known that the petitionerherein has filed the suit in O.S.No.31 of 1997 before the Court below fordeclaration of her title over the plaint 'A' schedule less 'B' scheduleproperty and an injunction restraining the defendants from interfering withher possession over plaint 'A' schedule property and for recovery ofpossession of plaint 'B' schedule property from the first defendant on removalof trespass and of the basement put up therein at his cost.

3. Pending the said suit, the plaintiff filed a petition in

I.A.No.601 of 1997 under Order 6 Rule 17 and Section 151 CPC praying to amendthe plaint. In the affidavit filed in support of the said petition, thepetitioner/plaintiff would submit that she got title and possession overplaint 'A' schedule property, as per the gift deed dated 29 .8.1986 executedin her favour by her father late Gabriel Nadar, who purchased the same under asale deed dated 21.7.1112 ME for which the old survey number is 42 of Nattalamvillage; that after re-survey, the suit property within the specifiedboundaries and location actually fell within R.S.No.790/8, but, in the giftdeed dated 29.8.1986, the re-survey number is mistakenly stated as 790/7

instead of 790/8 and when she paid the tax, she was issued the tax receipt forR.S.No.790 /7 based on the gift deed, but the property which is in herpossession, as per the gift deed and for which she is paying the tax, is R.S.No.790/8; that R.S.No.790/7 lies West of the suit property, which belongs toMary, D/o.Annammal Nadachi; that the mistake was found only when theAdvocate-Commissioner measured the suit property; that the boundary and otherdescriptions are correct; that the gift deed authorises the donee to rectifythe mistakes, if any, in survey number area etc.; that after the suit andafter the first visit of the AdvocateCommissioner, the defendants forciblytrespassed on the entire plaint 'A' schedule property and on 14.5.1997, thedefendants put up a new compound wall on the Northern side and therefore ithas become necessary for the plaintiff to pray for recovery of possession ofplaint 'A' schedule property which requires an amendment of the plaint sincebeing an event after the suit.

4. This petition filed by the plaintiff was stiffly opposed

4. This petition filed by the plaintiff was stiffly opposed by the respondents on ground that the plaintiff had made certain fundamentaladmissions in the plaint and by way of this amendment application she wants toget rid of the same that the nature of amendment is sure to alter thecharacter of the suit and the cause of action in toto; that by this petition,plaintiff is trying to introduce a new cause of action not hitherto pleadednor is understandable between the issues and such a strange and totally newcase opposed to the suit already filed is shocking and never within the scopeof the provisions of Order 6 Rule 17 CPC; that the material sought to beintroduced under amendment is so voluminous and various that runs to 3 to 4pages of typed materials and such a colossal introduction of matters evenlonger than the original pleadings is not within the scope of amendment; thatthe very fact that the plaintiff got knowledge of her so-called property onlyafter the Commissioner's report, itself is enough to convince that theplaintiff has no possession as alleged and that the plaintiff has no cause ofaction and the suit is not maintainable. On such grounds, the respondentswould pray to dismiss the above petition.

5. Based on the above pleadings, the Court below would conduct an enquiry, wherein no oral or documentary evidence was adduced. TheCourt below, having observed that the amendment sought to be made gives riseto a new cause of action for the suit and the market value also got enhancedfrom Rs.1,500/= to Rs.3,000/= and though the amendment of the survey numberwill not affect the suit proceedings but since the suit and cause of actionalso gets changed, would ultimately dismiss the said petition. Aggrieved, theplaintiff/petitioner has come forward to file the above petition on grounds asbrought forth in the grounds of civil revision petition.

6. During the arguments, the learned counsel appearing on behalf of the petitioner besides tracing the facts and circumstances asbrought forth in the petition before the lower Court on grounds of revisionbefore this Court which are extracted supra, would also cite two judgmentsreported in -

(i) AIR 1968 (SC) 1165 (Nair Service Society v.

K.C. Alexander)

(ii) AIR 1974 SC 1178 (Shikharchand V.

7. Insofar as the first judgment cited above is concerned,the Hon ble Apex Court has held that- It is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial ofsuits but also appeals. The appeal being a continuation of the suit new pleasare not considered. If circumstances change they can form the subject of someother proceedings but need not ordinarily be considered in the appeal. Tothis proposition there are a few exceptions. Some times, it happens that theoriginal relief claimed becomes inappropriate, or the law changes affectingthe rights of the parties. In such cases Courts may allow an amendmentpleading the changed circumstances. Sometimes also the changed circumstancesshorten litigation and then to avoid circuity of action the courts allow anamendment.

Held on facts that as it was not one of those cases in whichthere was likelihood of prolonged litigation after remand or in which a newcase would begin, appellant was allowed to effect amendment so as to show tothe Court that in addition to possession it had title. AIR 1966 Ker 286,Reversed; (1907) 6 Cal LJ 74 and AIR 1915 Cal 103 and AIR 1941 FC 5, Approved;(1934) 294 US 600 and AIR 1957 SC 875 and AIR 1957 SC 357 and AIR 1957 SC 363and AIR 1967 SC 96, Rel. on; AIR 192 5 PC 169 and AIR 1938 PC 123 and AIR1950 PC 68 and AIR 1922 PC 249 Dist .

In the other judgment also the Hon ble Apex Court in para No.11 of its judgment has held-

Conclusion

Ordinarily, a suit is tried in all its, stages on the cause of actionas it existed on the date of its institution. But it is open to a Courtincluding a Court of appeal to take notice of events which have happened afterthe institution of the suit and afford relief to the parties in the changedcircumstances where it is shown that the relief claimed originally has (1) byreason of subsequent change of circumstances become inappropriate; or (2)where it is necessary to take notice of the changed circumstances in order toshorten the litigation, or (3) to do complete justice between the parties.(See Rai Charan v. Biswanath, AIR 1915 Cal 103) .

8. On the contrary, the learned counsel appearing on behalf of the respondents, besides reporting that the second respondent died on13.12.1998 and that no steps have been taken to implead his legalrepresentatives and therefore, would advance his arguments only insofar as thefirst respondent is concerned in the above Civil Revision Petition onlydwelling on the facts and circumstances and opposing the above Civil RevisionPetition particularly on ground that the amendments sought for on the part ofthe petitioner is susceptible to change the cause of action and alter thestructure of the suit, thus, ultimately, praying to dismiss the above CivilRevision Petition.

9. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for both,what could be assessed in the light of the back ground of the case projectedon the part of the petitioner in the above Civil Revision Petition is that thepetitioner has filed the suit for declaration and permanent injunction of thesuit “A” schedule properties and for possession of the “B” schedule propertieson grounds that she was already in possession of “A” schedule properties andfurther wanting to recover possession of the “B” schedule properties also asprayed for the recovery of possession. The case of the petitioner is thatonly after the surveying of the land by the Court Commissioner, she was ableto understand that in the Gift Deed given by her father some anomaly has takenplace regarding the survey numbers and since the very deed also recites thatin case of change of survey number that was rectifiable and therefore oncoming to know the above defects and further since the defendants have alsotaken forcible possession of the “A” schedule properties, after themeasurement of the land by the Advocate Commissioner, wanting to effectnecessary amendments into the plaint, has filed the application under OrderVI, Rule 17 seeking to amend the application suitably.

10. Since it is Order VI, Rule 17 which is relevant forconsideration, since dealing with the amendment of pleadings, it has becomenecessary on the part of this Court to extract the said provision of law andthe same is extracted hereunder:

17. Amendment of pleadings- The Court may at any stage ofthe proceedings allow either party to alter or amend his pleadings in suchmanner and on such terms as may be just, and all such amendments shall be madeas may be necessary for the purpose of determining the real questions incontroversy between the parties.

Provided that no application for amendment shall be allowed after thetrial has commenced, unless the Court comes to the conclusion that in spite ofdue diligence, the party could not have raised the matter before thecommencement of trial .

11. Sofar as the import and the real meaning of the Order VI, Rule 17 is concerned, the Court could at any stage allow either party to alteror amend pleadings in such manner and on such terms for the purpose ofdetermining the real questions in controversy between the parties. However,it is added in the proviso to the above rule that if the Court is satisfiedthat inspite of exercise of all diligence, the party could not raise thematter before commencement of trial and in such event even after thecommencement of trial, application for amendment could be allowed.

12. The main rule is in the affirmative and the proviso which is to serve as an exception to the main rule is negative in its approach andapplicability since it states that unless the Court comes to the conclusionthat inspite of due diligence the party could not raise the matter beforecommencement of trial, no application for amendment shall be allowed.

13. Needless to mention that the case in hand falls under the main rule, since no trial has commenced in the suit so far, which can beassessed from the very fact that the suit and the interlocutory applicationboth have been filed in one and the same year i.e.1997 and it has taken sixlong years for a decision to be made in the above application, as a result ofwhich, the matter is kept pending so far. Therefore, it could further bementioned that the law on the subject of amendment is quite liberal inpermitting the parties to alter or amend his pleadings.

14. However, the legal prepositions held sofar by the upper forums are well settled to the effect that such amendments though could beliberally allowed, the limitations are that the amendment sought to beintroduced in the plaint should not have the tendency or effect to change thecause of action or alter the basic structure of the suit and these are the twocardinal principles which are to be taken care of and to be complied with byany party seeking amendment and hence it become necessary on the part of thisCourt to probe into on the given facts and circumstances whether in the casein hand such a condition is prevalent so as to either accept or dismiss theapplication filed by the petitioner/plaintiff before the lower Court andwhether the lower Court is right in its decision in dismissing the amendmentapplication filed by the petitioner.

15. From the two judgments cited on the part of the petitioner both by the Hon ble Apex Court are innovative and pointed to theaspect that some times it happens that the original relief claimed becomesinappropriate. In such cases, Courts may allow amendment of pleadings in thechange of circumstances and at times such circumstances also curtailsmultiplicities of litigations and hence the Court can allow amendment as hasbeen held in the first judgm ent cited above. From the second judgment citedabove, this Court is able to understand that for reason of subsequent changeof circumstances, the pleadings become inappropriate and whereas it isnecessary to take notice of the changed circumstances and in order to docomplete justice between the parties, the amendment could be allowed.16. In the case in hand it is not only the change of

circumstance that is shown by the petitioner by reason of the change of surveynumbers to the suit properties came to be revealed after the measurement ofthe same having been done by the Advocate Commissioner but also yet anothercircumstance to the effect that the “A” schedule suit properties are allegedto have been forcibly taken possession of by the defendants, after theinspection of the properties by the Advocate Commissioner and therefore, thepetitioner would plead such change in the circumstances and hence it isnecessary to amend the plaint and therefore, this Court is of the strong viewthat the trial Court, falling in line with the judicial thinking which hasbeen brought forth, through the Hon ble Apex Court’s judgmentcited above, could have permitted the petitioner to amend

V. KANAGARAJ, J

the plaint by allowing the application filed by her instead of dismissing thesame on inconsistent and erroneous ground and hence the following order:In result,

(i) the above Civil Revision Petition stands allowed.

(ii) The fair and decretal order dated 7.2.2003 made in I.A.

No. 60 1 of 1997 in O.S.No. 31 of 1997 by the Court of the Principal District Munsif of Kuzhithurai is set aside.(iii) In view of the long pending nature of the suit, thelower Court is issued with the direction to expedite the trial procedure inthe above suit even dealing with the same out of turn so as to deliver thejudgment within the close of the year 2004.(iv) No costs.

Index: YesInternet: Yes

asvm

To

The Principal District Munsif,Kuzhithurai .