Vellai Ammal and ors. Vs. Chinnammal and ors. - Court Judgment

Excerpt:
- - the high court, therefore, was clearly wrong in interfering in revision by reversing the discretionary order of the district judge. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs.orderthangamani, j.1. the revision petitioners herein are the plaintiffs in o.s. no. 431 of 1992 in the court of district munsif of nilakottai. they filed the suit for a permanent injunction restraining the defendants from interfering with their enjoyment of the suit property which is survey no. 381/11-0.94 acres - old patta no. 798, new patta no. 1918 in jambuthuraikottai village, nilakottai taluk. the ad interim injunction obtained by them in i.a. no. 694 of 1991 in that suit was vacated on 16.3.1992. alleging that subsequently the defendants have trespassed into the suit land and dispossessed them, they have come forward with i.a. no. 387 of 1992 under order 6, rule 17, c.p.c. to amend the plaint so as to substitute the relief of injunction by one for recovery of possession. besides, stating that the trespass alleged is not true and that they arc in enjoyment of the property since the date of their purchase on 9.10.1979 the defendants did not give any valid objection for amending the plaint in their counter - statement. they only stated that the proposed amendment is not valid in law. the court below has dismissed the said application for the reason that as per the averments in the counter the defendants are in possession since the date of their sale deed on 9.10.1979. and this revision is directed against the said order. after notice of motion, on common consent arguments were heard on this civil revision petition.2. the trial court states that on consideration of the claims of both sides, there is no merit in the contention of the petitioners/plaintiffs. evidently this is a non-speaking order and the court below has not stated the contentions of the respective parties and the reason for its conclusion.3. learned counsel for the revision petitioners submits that what is asked for by way of amendment is only an alternative prayer for possession because the trial court has negatived the injunction application. order 6, rule 17, c.p.c. provides that 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. in this case the proposed amendment does not alter the nature and character of the suit. in fact, it is necessary for determination of the rights of the parties. in natesan v. govindaswami (1988) 2 l.w. 397, a suit for declaration and injunction was resisted by the defendants that they were in possession of the property and prescribed title by adverse possession. there upon plaintiff came forward with an application to amend the plaint substituting his relief of possession in the place of injunction. a single judge of this court has held that the amendment of plaint becomes important because of the fact that possession is claimed by the defendants and in case the trial court finds that they are in possession, then the plaintiffs will be without any effective remedy. it is only to avoid such a contingency and to avoid multiplicity of proceedings, the provisions in order 6, rule 17, c.p.c. are intended.4. in radhakrishnan v. auvudai ammal : (1993)1mlj375 , the petitioner originally filed a suit for a permanent injunction restraining the defendants from interfering with his peaceful possession of the suit properties and for costs. the defendants stated in the written statement that they were in possession of the suit properties. therefore, the plaintiff filed an application for amendment seeking two new prayers, (i) for a declaration that the plaintiff was the absolute owner of the suit property, and (ii) for a direction to the defendants to deliver vacant possession of the plaint properties failing which to direct the officer of the trial court to put the plaintiff in vacant possession of the suit properties. the trial court dismissed the application holding that the amendment would change the nature of the suit. in revision, held: the plaintiff has stated all the facts with regard to his title and also his possession and by way of the amendment, he seeks to introduce a new prayer based on the pleadings already brought to him in the plaint. the plaintiff is entitled to have the plaint amended and the contentions of the learned counsel for the respondents that the plaintiff is introducing a new cause of action or a new case cannot be countenanced.5. in haridas aildas v. godrej rustom : air1983sc319 , the district judge allowed an amendment of plaint to insert of relief for recovery of possession. holding that the district judge in that case had exercised a sound discretion in allowing the amendment of the plaint the supreme court held that by allowing such amendment neither the nature of the suit could be altered nor any valuable right of limitation accrued to the defendant could be taken away. the high court, therefore, was clearly wrong in interfering in revision by reversing the discretionary order of the district judge. the apex court also observed that the civil court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. and a revisional court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.6. on the principles laid down in the aforesaid decisions, it is evident that the court below has erred in negativing the claim of the plaintiff. in view of the dismissal order passed in the injunction application, the plaintiff has no other remedy except to amend his plaint in order to get his remedy. besides the defendants will not be prejudiced in allowing this amendment. and in the circumstances, the order of the lower court refusing to amend the plaint is not in accordance with law. a party cannot be refused relief merely because of some mistakes, negligence, inadvertence, or even infraction of the rules of procedure. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. however negligent or careless may have been the first omission and however late the proposed amendment the amendment may be allowed if it can be made without injustice to the other side. rules of procedure are intended to be a handmaid to the administration of justice.7. in the result, the civil revision petition is allowed and the order of the court below in i.a. no. 387 of 1992 is set aside and the amendment prayed for is permitted. parties are directed to bear their respective costs throughout.

Judgment:
ORDER

Thangamani, J.

1. The revision petitioners herein are the plaintiffs in O.S. No. 431 of 1992 in the Court of District Munsif of Nilakottai. They filed the suit for a permanent injunction restraining the defendants from interfering with their enjoyment of the suit property which is Survey No. 381/11-0.94 acres - Old Patta No. 798, New Patta No. 1918 in Jambuthuraikottai Village, Nilakottai Taluk. The ad interim injunction obtained by them in I.A. No. 694 of 1991 in that suit was vacated on 16.3.1992. Alleging that subsequently the defendants have trespassed into the suit land and dispossessed them, they have come forward with I.A. No. 387 of 1992 under Order 6, Rule 17, C.P.C. to amend the plaint so as to substitute the relief of injunction by one for recovery of possession. Besides, stating that the trespass alleged is not true and that they arc in enjoyment of the property since the date of their purchase on 9.10.1979 the defendants did not give any valid objection for amending the plaint in their counter - statement. They only stated that the proposed amendment is not valid in law. The court below has dismissed the said application for the reason that as per the averments in the counter the defendants are in possession since the date of their sale deed on 9.10.1979. And this revision is directed against the said order. After notice of motion, on common consent arguments were heard on this civil revision petition.

2. The trial court states that on consideration of the claims of both sides, there is no merit in the contention of the petitioners/plaintiffs. Evidently this is a non-speaking order and the court below has not stated the contentions of the respective parties and the reason for its conclusion.

3. Learned Counsel for the revision petitioners submits that what is asked for by way of amendment is only an alternative prayer for possession because the trial court has negatived the injunction application. Order 6, Rule 17, C.P.C. provides that 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. In this case the proposed amendment does not alter the nature and character of the suit. In fact, it is necessary for determination of the rights of the parties. In Natesan v. Govindaswami (1988) 2 L.W. 397, a suit for declaration and injunction was resisted by the defendants that they were in possession of the property and prescribed title by adverse possession. There upon plaintiff came forward with an application to amend the plaint substituting his relief of possession in the place of injunction. A single Judge of this Court has held that the amendment of plaint becomes important because of the fact that possession is claimed by the defendants and in case the trial court finds that they are in possession, then the plaintiffs will be without any effective remedy. It is only to avoid such a contingency and to avoid multiplicity of proceedings, the provisions in Order 6, Rule 17, C.P.C. are intended.

4. In Radhakrishnan v. Auvudai Ammal : (1993)1MLJ375 , the petitioner originally filed a suit for a permanent injunction restraining the defendants from interfering with his peaceful possession of the suit properties and for costs. The defendants stated in the written statement that they were in possession of the suit properties. Therefore, the plaintiff filed an application for amendment seeking two new prayers, (i) for a declaration that the plaintiff was the absolute owner of the suit property, and (ii) for a direction to the defendants to deliver vacant possession of the plaint properties failing which to direct the Officer of the trial court to put the plaintiff in vacant possession of the suit properties. The trial court dismissed the application holding that the amendment would change the nature of the suit. In revision, held: the plaintiff has stated all the facts with regard to his title and also his possession and by way of the amendment, he seeks to introduce a new prayer based on the pleadings already brought to him in the plaint. The plaintiff is entitled to have the plaint amended and the contentions of the learned Counsel for the respondents that the plaintiff is introducing a new cause of action or a new case cannot be countenanced.

5. In Haridas Aildas v. Godrej Rustom : AIR1983SC319 , the District Judge allowed an amendment of plaint to insert of relief for recovery of possession. Holding that the District Judge in that case had exercised a sound discretion in allowing the amendment of the plaint the Supreme Court held that by allowing such amendment neither the nature of the suit could be altered nor any valuable right of limitation accrued to the defendant could be taken away. The High Court, therefore, was clearly wrong in interfering in revision by reversing the discretionary order of the District Judge. The Apex Court also observed that the Civil Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. And a revisional Court also ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances.

6. On the principles laid down in the aforesaid decisions, it is evident that the court below has erred in negativing the claim of the plaintiff. In view of the dismissal order passed in the injunction application, the plaintiff has no other remedy except to amend his plaint in order to get his remedy. Besides the defendants will not be prejudiced in allowing this amendment. And in the circumstances, the order of the lower court refusing to amend the plaint is not in accordance with law. A party cannot be refused relief merely because of some mistakes, negligence, inadvertence, or even infraction of the rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission and however late the proposed amendment the amendment may be allowed if it can be made without injustice to the other side. Rules of procedure are intended to be a handmaid to the administration of justice.

7. In the result, the Civil Revision Petition is allowed and the order of the Court below in I.A. No. 387 of 1992 is set aside and the amendment prayed for is permitted. Parties are directed to bear their respective costs throughout.