Judgment:
ORDER
S. Palanivelu, J.
1. The petitioner is defendant in O.S. No. 338 of 1999 on the file of the District Munsif Court, Chengalpattu. The respondent filed the suit for permanent injunction restraining the defendant from in any manner putting up construction in the specified area and for a mandatory direction to the defendant to demolish the already constructed wall and pillars in the suit property. After the commencement of trial i.e., while the suit was at part heard stage, the respondents/plaintiffs filed an application under Order 6 Rule 17 and under Section 151 of C.P.C to amend the plaint to introduce certain particulars in the Schedule as regards Survey Numbers.
2.(i) In the affidavit filed by these respondents it is alleged that while the first respondent was in the box, he was cross examined by the defendant's Counsel to the effect that the Survey Numbers of the house property purchased by him and his wife were not furnished in the plaint. If the Survey Numbers are given in the Schedule, it would be easy for determination. Hence, the amendment application may be allowed.
2.(ii) Particulars of Amendment:
In the suit schedule of property add the following after the words 'Gandhi Street (Old Mettu Street) Town Survey Number 772/2, 772/1 and 772/1A, 772/1E, and also in the plaint sketch attached in the Eastern side T.S. No. 772/2, on the West of that T.S. No. 772/1, now subdivided as 772/1B and on the Western side of the Sketch T.S. No. 772/1A, respectively, and in all I. As wherever it is necessary.
3. In the Counter filed by this petitioner it is alleged that in the written statement the defendant has clearly mentioned in para 18, that the plaint schedule is not accordance with Order 7, Rule 3 of C.P.C. and that the petitioner have not chosen to amend the plaint at that time and after P.w.1 was fully cross examined, this petition has been filed. He himself had admitted during the course of cross examination that plaint schedule does not contain any Survey Number and boundaries. If the amendment petition is allowed, the admission aspects in the cross examination could be nullified and irreparable loss would be caused to the defendant. As per Order 6, Rule 17 C.P.C., the petitioner should show that he could not bring the amendment before the commencement of trial. The proposed amendment would change the nature of the suit. A new cause of action would arise. The petition is a belated one. Only to drag on the proceedings the petition is filed and the same is barred by limitation, as per Article 59 of the Limitation Act. Hence the petition has to be dismissed.
4. The learned District Munsif, allowed the application by observing that except the plea of 'delay' there is no serious objection found in the Counter; the counter is not sustainable as the allegation in the counter is not acceptable as regards limitation, cause of action and nature of suit and that allowing application will not do any harm to the respondent/defendant.
5. In the plaint, the Schedule property has been described as, in Kancheepuram District, Chengalpattu Taluk, Firka, Town Gandhi Street (Old Mettu Street) Door No. 131, the Southern wall of the Plaintiff as shown in the Sketch (forming part of the plaint) as 'ABCDEF'. The suit property is not furnished with reference to Survey Numbers. Now the Survey Numbers in which the suit property is situated are sought to be introduced in the plaint schedule.
6. It is the contention of Mr. R. Thiagarajan, learned Counsel for the petitioner that the amendment application has been filed after a long time that too in the part heard stage, after about a decade and the allowing of which would certainly prejudice the rights of the petitioners and hence it is not sustainable.
7. Conversely, Mr. M.S. Subramanian, learned Counsel for the respondents would submit that the proposed amendment would not alter the nature and character of the suit that no new cause of action is introduced, that no fresh relief has been prayed for and only to clarify the description of the Schedule property, it is sought to be introduced and so it could be allowed.
8. Order 6, Rule 17 of the amended C.P.C. reads as follows:
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 has come to the conclusion that inspite of the due diligence the party could not raised the matter before the commencement of trial.
9. As for the first part of the provision, the law permits a party to amend his pleadings which are essential for determining the real question in controversy between the parties and as far as this part is concerned the Courts are to liberally approach the matter. In so far as the second part viz., the proviso to section is concerned, the trial Court shall not automatically or mechanically allow the amendment application when it is sought to be introduced after the commencement of trial and if the Court feels that it can be allowed, then it has to satisfy itself and furnish reasons as to the fact that the party, in spite of his due diligence, could not raise the matter anterior to the commencement of the trial. It is mandatory on the part of the Court while allowing the post trial amendments to record the reasons as regards its satisfaction to the said aspect.
10. Another feature available in this case is that the proposed amendment is prayed to be included in a suit which filed in the year 1999 earlier to the passing of the amendment Act i.e., Act 22 of 2002 viz., Code of Civil Procedure (Amendment) Act 2002, that came to effect on 01.07.2002 in which Section 16(i)(b) specifically provides for non-application of the amending the Act to the pending proceedings and it has been categorically provided that the amended Act shall not apply in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the present Act. In other words, it can be stated that the amended provision, containing proviso to Order 6, Rule 17, has no retrospective effect and it would take effect from 01.07.2002, for the suits or proceedings which were instituted after 01.07.2002. In case if the case was get pending prior to amending Act, request for amendment to the pleadings would not be permitted forbidden, the strict rule contained in the proviso to Rule 17 Order 6 C.P.C., would not be made applicable.
11. The Supreme Court in 2007 (1) SCC 765 [State Bank of Hyderabad v. Town Municipal Council] has held that in view of the above said provision there cannot be any doubt whatsoever that the suit having been filed in the year 1998 proviso to Order 6 Rule 17 shall not apply. This Court has also taken an identical view in 2006 (1) L.W.797 [Ellen v. P.L. Chockalingam ].
12. As the present suit was filed in the year 1999, the proviso annexed to Rule 17 of Order 6 C.P.C. is not applicable to the present prayer for amendment and no duty is cast upon the Court to record the reasons as to the aspect that the plaintiff inspite of his due diligence could not make the amendment prior to the commencement of the trial.
13. learned Counsel for the Petitioners draws attention of this Court to a decision of this Court in : (2005)4MLJ258 [Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam v. Udumalpet Samayapuram Ayira Vaisya Sangam] in which certain principles have been formulated on the strength of the decisions on this subject. Neither a new case nor a new cause of action should be set up, that the parties not entitled to rely on the statute of limitation, if the amendment is subject to law of limitation, if the cause of action is not going to be changed and that no amendment shall be allowed to introduce new set of ideas to the prejudice of any right by any party accrued to him by lapse of time.
14. In 2006 (5) CTC 475 [Kodiammal v. Sarangapani] it is held that when the proposed amendment does not alter nature and character of suit to bring in new cause of action, Courts ought to be liberal in granting amendment for effective adjudication.
15. In the case of Kaliathal v. Murugathal and Ors. reported in 2006 (5) CTC 580 this Court has observed that the amendment may be allowed which would avoid multiplicity of proceedings by filing another suit for such relief.
16. A Full Bench of this Court has elaborately discussed the issue on allowing of amendment applications under Order 6 Rule 17, on the strength of various Judgment of this Court and Supreme Court and formulated the following principles:
12.00. Result:
In the result, the reference is answered holding:
(1) that the delay in filing the Application for amendment of the pleadings is not fatal when no serious prejudice is shown to have caused to the opposite party so as to take away any accrued right and the court should take notice of the subsequent events in order to shorten the litigation to preserve and safeguard the rights of both the parties and to subserve the ends of justice and while doing so, the Court was not justified in allowing or disallowing the amendments so as to defeat the valuable rights of the parties and amendments of pleadings should be allowed which are necessary for determination of the real controversy in the suit and while doing so, the Court should not go into the correctness or falsity of the main case an d it should not record the finding on the merits of the amendment as it should be done only during the trial of the Suit.
(2) According to the proviso to Sub-section (2) of teh Section 40 of the Specific Relief Act, the Court has no option except to allow the amendment for adding a prayer for damages. This being the provision of law, the same should be allowed.
(3) the Privison to Order 6, Rule 17 of Act 22 of 2002 is applicable to the pleadings instituted with effect from 1.7.2002 and not to the pleadings instituted prior to 1.7.2002 and while considering the proviso to Order 6, Rule 17, the Court has to examine in detail and commencement of trial must be understood as final hearing of the suit i.e., examination of witnesses, filing of documents , addressing of arguments, etc., and the Court should not forget its unfettered discretion to allow the amendment after applying itself the judicial discretion, if there is no negligence on the part of the party.
17. In 2007 (3) CTC 400 [Usha Balashaheb Swami and Ors. v. Kiran Apparao Swami and Ors.] the Apex Court has held that the Courts should be liberal in granting prayer for amendment of pleadings unless serious injustice or irreparable loss caused to the other side or on the ground that the prayer for amendment was not a bona fide one.
18. In 2008 (2) CTC 224 [Puran Ram v. Bhaguram and Anr.] the Supreme Court has laid down a principle that no question of limitation shall arise when mis-description of the name of original plaintiff or mid-description of the suit property arose in a particular case. As per the Supreme Court if there is mis-description in the pleadings and if it is to be amended by the parties concerned, no question of limitation would arise in this regard.
19. Learned Counsel for the petitioner also placed reliance upon the decision of this Court in 2005 (5) CTC 619 [Rameeza Beevi and Ors. v. S. Mohammed Ibrahim] in which it is held that on the strength of the Supreme Court decision in AIR 1957 SC 353 [L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co.] the Courts should decline to allow amendments, if fresh suit on the amended claim would be barred by limitation, that the amendment could be ordinarily permitted, if the same is not barred b y limitation on the date of amendment application, or the amendment could be allowed, if there is any doubt, regarding the question of limitation, postponing the same, to be canvassed, at the final stage.
20. The Supreme Court in : [2003]3SCR836 [Punjab National Bank v. Indian Bank and Anr.] has decided that even though the amendment application was filed in a belated stage, despite the proposed claim was barred by limitation, the same should be allowed subject to the question of limitation and it is to be decided at a later point of time.
21. Identical view was taken in : AIR2001SC699 [Ragu Thilak D. John v. S. Rayappan and Ors.] in which it is held that the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayer for.
22. Learned Counsel for the respondents would garner support from a decision of the Supreme Court : AIR2007SC2577 [Ramachandra Sakharam Mahajan v. Damodar Trimbak Tanksale (dead) and Ors.] the appellate Court ought to have seen that the trial Court was in error in refusing the amendment of the plaint which would have enabled the Court to render a decision in a more satisfactory manner. It is also held therein that since the proposed amendment would enable the Court to pinpointedly consider the real issue between the parties and to render a decision more satisfactorily to its conscience., the amendment ought to have been allowed.
23. In : AIR2004SC4102 [Pankaja and Anr. v. Yellappa (dead) by LRs. and Ors.] the Supreme Court has followed the Judgment in Ragu Thilak D. John's case (supra) directing the trial Court to frame necessary issue on the points of limitation to decide the same in accordance with law bearing in mind the law laid down by the Apex Court in L.J. Leach and Co. Ltd., (supra)
24. Adverting to the facts of the present case, it is clear that the amendment is for exact identification of the property with reference to Survey Numbers. It is worth mentioning that the identity of the property is not at all disputed in the written statement. It has been pleaded therein that as per Order 7 Rule 3 of C.P.C necessary particulars are significantly absent in the Schedule with reference to town survey number and hence the suit is liable to be dismissed. Even though the amendment is being brought after the commencement of the trial, it is to the effect of clarifying the description of property and making the particulars in the schedule in an explaining manner properly, this Court is of the considered opinion that no question of limitation would arise. Allowing of the application would in no way prejudice the rights of the petitioner. It is also added that it could not be stated that the petitioner has accrued any right with the mis-description of the property and by means of incorporation of the amendment their rights would be affected.
25. It is obvious that there could be no change in the nature of the suit, no alteration in the nature, character and the cause of action of the suit. There could also be no possibility for different cause of action to creep in. Following the principles laid down by the Apex Court and this Court on this issue, it is held that the amendment sought for in the present case by the respondent deserves to be allowed by means of which no hardship would be caused to the petitioners and they have got every opportunity to file additional written statement containing objections to the amendments. In such view of this matter, this Court does not find any illegality of infirmity in the order passed by the Court below which deserves to be confirmed and accordingly, confirmed.
In fine the Civil Revision Petition is dismissed. No costs. Consequently, Connected Miscellaneous Petition is also dismissed.