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2012 DAILYLAW 3601 (MAD)

K. Umapathy v. A. C. Abraham Kinsely

2012-08-16

V.DHANAPALAN

body2012
Judgment :- 1. The Civil Revision Petition is filed challenging the order dated 23.12.2011 in I.A.No.10304 of 2011 in O.S.No.5511 of 2010, on the file of the II Assistant Judge, City Civil Court, Chennai. 2. The defendant in the suit is the revision petitioner herein. The suit has been filed by the respondent/plaintiff for permanent injunction restraining the petitioner/defendant, his men, agents, servants or anybody authorised through the defendant from in any manner carrying out construction work in the common passage ad-measuring 337.5 square feet situate in T.S.No.4692 of Block No.105 in No.112, T.Nagar Village, morefully described in Schedule C. 3. Pending suit, the respondent/plaintiff filed I.A.No.10304 of 2011 to amend the plaint averring as follows: (a) As per paragraph (a) of the relief sought for in the plaint, in particular, the plaintiff stated in paragraph 6 of the plaint that the defendant's property is situated in the corner portion of the South-Eastern side, and in front of the plaintiff's property, there is a common passage from North to South vice versa and there was entrance. The said passage is common for the plaintiff and the adjacent owners. But the defendant, taking advantage of the corner portion as referred to above, tried to construct a building which would block the plaintiff's backside way and also prevent the sunlight and the ventilation to the plaintiff's Eastern side of the building. (b) In view of the above situation, the plaintiff filed the above suit on 14.6.2010 and after notice to the defendant, by order dated 23.7.2010 passed in I.A.No.10833 of 2010 for interim injunction, the Court ordered "status quo". Inspite of such an order of "status quo", the defendant continued and completed the construction and totally blocked the entrance to the passage on the Eastern side in the Southern corner entrance egress to the plaintiff and other house of the neighbours. (c) The defendant in his written statement dated 1.12.2010 has stated that he has completed the construction work in his property and as such, the present suit has become infructuous and liable to be dismissed with no cause of action. (c) The defendant in his written statement dated 1.12.2010 has stated that he has completed the construction work in his property and as such, the present suit has become infructuous and liable to be dismissed with no cause of action. The plaintiff states that the above suit was taken up for trial and the defendant as DW1 deposed in his evidence by proof affidavit dated 16.3.2011 and cross-examination dated 22.3.2011 and 12.4.2011 that he has completed his construction work in the common passage and deposed as if he was not aware of the injunction order, though the injunction order was passed after hearing both sides. Hence, it has become necessary that the plaint of the suit is to be amended with the corresponding prayer for the relief of demolition of the construction put up on the common passage during the pendency of the above suit. (d) Since the defendant in his written statement and his evidence has admitted the completion of the construction in the common passage, no further proof by way of trial is necessary. As per Order 6 Rule 17 C.P.C., a plaint can be amended at any time and as such, it has become necessary for the plaintiff to amend the plaint by praying for demolition of the constructions put up in the common passage. As per Order 6 Rule 17 C.P.C., a plaint can be amended at any time and as such, it has become necessary for the plaintiff to amend the plaint by praying for demolition of the constructions put up in the common passage. (e) Paragraph 8 (a) has to be inserted between paragraph 8 and 9 of the plaint as follows: "In view of the admitted position as made out by the defendant in his written statement read with his evidence as DW1 that he has completed the construction in the suit disputed passage, this Hon'ble Court may be pleased to pass an order of a mandatory injunction directing the defendant to remove the construction made in the suit disputed common passage." Paragraph 10(a) has to be inserted between paragraph 10 and 11 of the plaint as follows: "The plaintiff values the suit for the relief of mandatory injunction at Rs.1,000/- and pays a Court Fee of Rs.75.50 under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as amended by Act 17 of 2003." In the prayer column, paragraph 11(a)(1) is to be inserted between paragraph 11(a) and 11(b), as follows: "that the defendant be ordered to remove/demolish the entire construction put up in the (common passage ad-measuring 337.5 square feet situate in T.S.No.692 of Block No.105 in No.112, T.Nagar Village, morefully described in the Schedule C hereunder) suit property by an order of mandatory injunction and in the event of the defendant failing to demolish/remove the said construction put up by the defendant in the suit property (common passage ad-measuring 337.5 square feet situate in T.S.No.692 of Block No.105 in No.112, T.Nagar Village, morefully described in the Schedule C hereunder) the plaintiff be permitted to remove/demolish the same and to receive the costs incurred thereon from the defendant and thus render justice." 4. The petitioner/defendant has filed counter affidavit to the said I.A. praying for amendment of the plaint, stating as follows: (a) The petition is not maintainable either in law or on facts and is liable to be dismissed in-limine. (b) The defendant has stated in his counter affidavit filed on 8.7.2010 in I.A.No.10833 of 2010 that he has completed the construction of his property and there is no cause of action for the suit and the same is liable to be dismissed as infructuous. (b) The defendant has stated in his counter affidavit filed on 8.7.2010 in I.A.No.10833 of 2010 that he has completed the construction of his property and there is no cause of action for the suit and the same is liable to be dismissed as infructuous. The defendant has also filed his written statement and issues were framed and the trial has also been completed and now, when the matter stands posted for arguments, the plaintiff has filed the present petition seeking to change the entire character of the suit. It is denied that he continued and completed the construction totally blocking the entrance to the passage, inspite of the order of status quo. After completion of the construction, the plaintiff approached the Court and obtained an order of status quo. Further, the plaintiff has also filed a suit in O.S.No.11556 of 2010 on the file of the I Assistant City Civil Court, Chennai for the relief of mandatory injunction and the same is pending for framing of issues. (c) The plaint cannot be allowed to be amended at the stage of arguments and further the amendment now sought to be made, would change the character of the suit and would be contrary to the pleadings in the plaint. (d) If the plaint is allowed to be amended so as to incorporate the relief of mandatory injunction, there would be two parallel suits on the same cause of action. The plaintiff cannot amend the prayer in the present suit, as the same would be contrary to the cause of action for the present suit. (e) The plaintiff cannot pay the Court fees according to his own whims and fancies and the relief of mandatory injunction to remove the construction would have been valued on the extent and the value of the construction and appropriate Court Fees will have to be paid by the plaintiff. The plaintiff cannot choose to pay a sum of Rs.75.50 for the relief of mandatory injunction to remove the construction. (f) The plaintiff has already filed a suit for mandatory injunction in O.S.No.11556 of 2010 on the file of the I Assistant Judge, City Civil Court, Chennai and he has also admitted the pendency of the said suit during his cross-examination, but had suppressed the said fact in the present affidavit. (f) The plaintiff has already filed a suit for mandatory injunction in O.S.No.11556 of 2010 on the file of the I Assistant Judge, City Civil Court, Chennai and he has also admitted the pendency of the said suit during his cross-examination, but had suppressed the said fact in the present affidavit. Therefore, the present petition for amendment is devoid of merits and the present petition and the suit are liable to be dismissed with exemplary costs, as the intention of the plaintiff is to drag on the matter and waste the time of the Court. 5. The trial Court, on a consideration of the case of the parties, allowed the I.A. praying for amendment of the plaint. Challenging the same, the present C.R.P. is filed by the defendant. 6. The trial Court while allowing the I.A., observed that only after the trial, the present I.A. has been filed for amending the plaint. Earlier, an I.A. was filed for interim injunction, in which, the trial Court ordered status quo on 23.7.2010 in I.A.No.10833 of 2010. Since the defendant violated the said order of status quo and constructed the property in question, it has become necessary for the plaintiff to amend the plaint. The defendant alleged that the plaintiff has already filed another suit for mandatory injunction before the I Assistant Judge, City Civil Court, Chennai and hence, the present I.A. for amending the pleadings has to be dismissed. It is alleged by the plaintiff that the defendant has violated the order of status quo and constructed the property in question. There is no new cause of action by amending the plaint as alleged by the defendant. No prejudice will be caused to the defendant if the petition for amendment of the plaint is allowed. Hence, the trial Court allowed the petition for amendment of the plaint. 7. Learned counsel for the petitioner/defendant contended that the plaintiff has already filed another suit for mandatory injunction before the City Civil Court and hence, the present I.A. is not maintainable. The amendment now sought to be made would change the character the suit. He further contended that post-trial amendment is not permissible in law. In support of his contentions, learned counsel for the petitioner/defendant relied on the following decisions: (a) 2011 (12) SCC 268 (State of M.P. Vs. Union of India) : 10. The amendment now sought to be made would change the character the suit. He further contended that post-trial amendment is not permissible in law. In support of his contentions, learned counsel for the petitioner/defendant relied on the following decisions: (a) 2011 (12) SCC 268 (State of M.P. Vs. Union of India) : 10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments has laid down the principles to be applicable in the case of amendment of plaint which are as follows: (i) Surender Kumar Sharma Vs. Makhan Singh ( 2009 (10) SCC 626 = 2009 (4) SCC (Civ) 294), at para 5: (SCC p.627): "5. As noted hereinearlier, 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." (ii) North Eastern Railway Admn. Vs. Bhagwan Das ( 2008 (8) SCC 511 ), at para 16: (SCC p.517): "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs.. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil Vs.. Kalgonda Shidgonda Patil ( AIR 1957 SC 363 ) which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side; and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs." (iii) Usha Devi Vs. Rijwan Ahamd ( 2008 (3) SCC 717 = 2008 (1) SCC (Civ) 922 ), at para 13: (SCC p.722) "13. Mr Bharuka, on the other hand, invited our attention to another decision of this Court in Baldev Singh Vs. Manohar Singh ( 2006 (6) SCC 498 ). In para 17 of the decision, it was held and observed as follows: (SCC pp.504-05) '17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow an amendment of the written statement at any stage of the proceedings.' " (iv) Rajesh Kumar Aggarwal Vs. K.K. Modi ( 2006 (4) SCC 385 ), at paras 15 & 16: (SCC pp.392-93) "15. The object of the rule is that the courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves it to the court to order amendment of pleading. The second part is imperative (shall) and enjoins the court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties." (v) Revajeetu Builders and Developers Vs. Narayanaswamy and Sons ( 2009 (10) SCC 84 = 2009 (4) SCC (Civ) 37 ), at para 63: (SCC p.102) "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive." The above principles make it clear that courts have ample power to allow the application for amendment of the plaint. However, they must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties." (b) 2012 (2) SCC 300 (J. Samuel Vs. Gattu Mahesh) : "18. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice must be done to the other side and secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. However, to balance the interests of the parties in pursuit of doing justice, the proviso has been added which clearly states 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." (emphasis supplied) 19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial." "23. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial." "23. Though the counsel for the appellants have cited many decisions, on perusal, we are of the view that some of those cases have been decided prior to the insertion of Order 6 Rule 17 with proviso or on the peculiar facts of that case. This Court in various decisions upheld the power that in deserving cases, the Court can allow delayed amendment by compensating the other side by awarding costs. The entire object of the amendment to Order 6 Rule 17 as introduced in 2002 is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that the parties had sufficient knowledge of other’s case. It also helps checking the delays in filing the applications. [Vide Aniglase Yohannan Vs. Ramlatha ( 2005 (7) SCC 534 ), Ajendraprasadji N. Pandey Vs. Swami Keshavprakeshdasji N. ( 2006 (12) SCC 1 ), Chander Kanta Bansal Vs. Rajinder Singh Anand ( 2008 (5) SCC 117 ), Rajkumar Gurawara Vs. S.K. Sarwagi and Co. (P) Ltd. (2008 (14) SCC 364), Vidyabai Vs. Padmalatha ( 2009 (2) SCC 409 = 2009 (1) SCC (Civ) 563) and Man Kaur Vs. Hartar Singh Sangha ( 2010 (10) SCC 512 = 2010 (4) SCC (Civ) 239) ]. 8. Learned counsel for the respondent/plaintiff consistently pleaded that since the defendant has violated the order of status quo, it has become necessary for the plaintiff to file the amendment petition. The defendant himself has accepted that he has completed the construction in question. Due diligence has been shown while seeking for amendment of the plaint. In support of his submissions, he relied on the meaning of "due diligence" from P.Ramanatha Aiyar's The Law Lexicon (The Encyclopaedic Law Dictionary with Legal Maxims, Latin Terms, Words & Phrases) 2nd Edition (Extensively Revised and Enlarged) Reprint 2008, which reads as follows: "Due diligence: Such watchful caution and foresight as the circumstances of the particular case demands". 9. In support of his submissions, he relied on the meaning of "due diligence" from P.Ramanatha Aiyar's The Law Lexicon (The Encyclopaedic Law Dictionary with Legal Maxims, Latin Terms, Words & Phrases) 2nd Edition (Extensively Revised and Enlarged) Reprint 2008, which reads as follows: "Due diligence: Such watchful caution and foresight as the circumstances of the particular case demands". 9. Having heard the learned counsel for the parties, and a circumspection of facts would reveal that the revision petitioner is the defendant in the suit which was filed by the respondent/plaintiff for permanent injunction restraining the petitioner/defendant from in any manner carrying out construction work in the common passage in question. Pending suit, the respondent/plaintiff filed I.A.No.10304 of 2011 to amend the plaint as quoted above. The said I.A. was contested by the petitioner/defendant stating that on 8.7.2010, in I.A.No.10833 of 2010, he has stated in the counter affidavit therein that he has completed the construction of his property and there is no cause of action for the suit and the same is liable to be dismissed as infructuous. The defendant has also filed his written statement and issues were framed and the trial has also been completed and now, when the matter stands posted for arguments, the plaintiff has filed the present petition seeking to change the entire character of the suit. The defendant denied that he continued and completed the construction totally blocking the entrance to the passage, inspite of the order of status quo. In the meanwhile, the plaintiff has also filed a suit in O.S.No.11556 of 2010 before the City Civil Court for the relief of mandatory injunction and the same is pending for framing of issues. 10. In the light of the above stated position and looking into the belated approach of the respondent/plaintiff in making the interlocutory application for amending the plaint at the stage of arguments, without any case having been made out by him, it is not known as to why due diligence has not been shown by him to make the said application in appropriate stage and without doing so, he has allowed the trial to be concluded and thereafter, at the stage of arguments in the suit, he has filed the present I.A., which has been allowed by the trial Court. 11. 11. In this context, it is worthwhile to refer to Order 6 Rule 17 CPC, which reads as follows: Order 6 : Pleadings generally: Rule 17: 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." 12. The principles laid down in Order 6 Rule 17 CPC, especially the proviso to the said Order 6 Rule 17 CPC, will go to show that the parties to the pleadings are not entitled to amendment after the trial has commenced. The entire object of the amendment of Order 6 Rule 17 CPC is introduced in 2002 CPC amendment to stall the filing of the application for amending the plaint subsequent to the commencement of trial to avoid surprises and that the parties had sufficient knowledge of the other's case. In the Samuel's case (cited supra), it is held that there cannot be any surprise to the parties by stalling the proceedings after the commencement of trial and the procedure and process of the suit proceedings have been visualised by the amendment to the CPC of the year 2002, in which, a proviso has been introduced in Order 6 Rule 17 CPC. 13. In the present case, it is to be noticed that there is no due diligence on the part of the respondent/plaintiff in taking up the matter in time, for moving the application for amendment of pleadings, before the commencement of trial and it had been moved only at the stage of arguments, i.e. after conclusion of trial. The said act of the respondent is only to protract the proceedings which can be termed as a dilatory tactics. 14. In view of the ratio laid down by the Supreme Court in J.Samuel's case (cited supra), coupled with the proviso to Order 6 Rule 17 CPC as amended in 2002, the amendment ordered by the Court below cannot be allowed to stand. 14. In view of the ratio laid down by the Supreme Court in J.Samuel's case (cited supra), coupled with the proviso to Order 6 Rule 17 CPC as amended in 2002, the amendment ordered by the Court below cannot be allowed to stand. Accordingly, the order impugned is set aside. The C.R.P. is allowed. No costs. The Miscellaneous Petition is closed.