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2006 Supreme(Mad) 2814
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
V. Gurusamy - Appellant
Versus
Vedagiri - Respondents
C.R.P.(PD).No.1863 of 2004 & C.M.P.No.17640 of 2004
Decided On : 25 October 2006
The main legal point established in the judgment is that the provisions of the Civil Procedure Code regarding the amendment of pleadings should be interpreted based on the timing of the filing of the pleadings and the commencement of the amended Code.
Headnote:
Amendment of Plaint - Civil Procedure Code - Section 16(2)(b) - Order 6, Rule 17 - The court allowed the amendment of the plaint as the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002, shall not apply to in respect of any pleadings filed before the commencement of the amended Code. The impugned order was set aside and the plaintiff was permitted to amend the plaint as prayed for.
Fact of the Case:
The plaintiff filed a suit for bare injunction, which was dismissed. During the appeal stage, the plaintiff filed a petition for amendment of the plaint by including the prayer for declaration. The petition was dismissed, leading to the filing of this Civil Revision Petition.
Finding of the Court:
The court found that the plaintiff, who originally filed the suit for bare injunction, now wanted the relief of declaration apart from mandatory injunction due to the demolition and reconstruction of the existing wall by the respondent. The court allowed the amendment of the plaint based on the provisions of the Civil Procedure Code.
Issues: The main issue was whether the plaintiff should be permitted to amend the plaint to include the prayer for declaration during the appeal stage.
Ratio Decidendi: The court relied on the provisions of Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, which stated that the amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. It was held that the impugned order was liable to be set aside, and the plaintiff was permitted to amend the plaint as prayed for.
Final Decision: The Civil Revision Petition was allowed, and the plaintiff was permitted to amend the plaint as prayed for. No costs were awarded, and the petition was closed.
(Civil Revision Petition filed against the order dated 21.9.2004 in C.M.P.SR.No.23508 of 2004 in A.S.No.10 of 2004 on the file of the IV Additional Judge, City Civil Court, Chennai against O.S.No.7636 of 1997 on the file of the XVIII Assistant Judge, City Civil Court, Chennai.)
Aggrieved by the order dated 21.9.2004 of the learned IV Additional Judge, City Civil Court, Chennai in C.M.P.SR.No.23508 of 2004 in A.S.No.10 of 2004, this Civil Revision Petition has been filed.
2. Brief facts of the case are as follows:
The petitioner is the plaintiff who filed the suit for bare injunction. After trial, the suit was dismissed. The petitioner preferred an appeal in A.S.No.10 of 2004. During the pendency of the appeal, the petitioner filed a petition in C.M.P.SR.No.23508 of 2004 for amendment of the plaint by including the prayer for declaration. The said C.M.P.SR. was dismissed. Aggrieved by the same, this Civil Revision Petition has been filed.
3. Learned counsel appearing for the revision petitioner would contend that after the dismissal of the suit on 24.2.2003, the respondent has demolished the existing wall and re-constructed a wall with 4-1/2". Therefore, during the appeal stage, to bring it to the knowledge of the Court, the plaintiff wants to amend the plaint so that he can also get a declaration apart from mandatory injunction. Learned counsel for the petitioner pressed into service a judgment of the Madurai Bench of this Court reported in 2005 (2) TLNJ 1 (Rethinam alias Anna Samuthiram Ammal and others vs. Syed Abdul Rahim), wherein, P.K.Misra,J has held as follows:
"6. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows:
"16. Repeal and Savings .....
(1) ....
(2) .....
(a) ....
(b) the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to 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 this Act. ;
(c) ........ "
The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act 2002. As already indicated, the Code of Civil Procedure (Amendment) Act 1999 and the Code of Civil Procedure (Amendment) Act 2002 came into force with effect from 01.07.2002. From the bare reading of the provisions contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act 2002, it is clear that such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously include the plaint and written statement. Therefore, in respect of the plaint or written statement filed before 01.07.2002, the proviso to Order 6, Rule 17 would have no applicability.
7. In the present case, the trial court has relied upon the proviso to Order 6, Rule 17 of the Code of Civil Procedure (Amendment) Act 2002. The amendment of plaint was necessitated on account of the fact that as per the plaintiffs' case, the defendant has disturbed the possession during the pendency of the suit which necessitated the relief for declaration of title and recovery of possession. Such an amendment, by applying the principles relating to amendment of plaint as applicable before 01.07.2002, would have been allowed notwithstanding the fact such amendme
