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2006 Supreme(Mad) 2658
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. RAJESWARAN
Ruby Esther Mary - Appellant
Versus
Dominic Xavier @ Thomuni - Respondents
C.R.P.(PD) No.908 of 2005
Decided On : 10 October 2006
The main legal point established in the judgment is that an amendment to pleadings after the trial has commenced should only be allowed if the party seeking the amendment can prove due diligence and that the amendment will not nullify the advantage accrued to the other party.
Headnote:
Amendment - Civil Procedure Code - Order 6 Rule 17 - 17, 2002 - Summary of Acts and Sections: Order 6 Rule 17 C.P.C. - 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.
Fact of the Case:
The plaintiff filed a suit for permanent injunction. The defendant filed an application to amend the written statement after the trial had commenced. The trial court allowed the amendment. The plaintiff filed a revision petition against this order.
Finding of the Court:
The court found that the amendment sought by the defendant was belated and would nullify the advantage accrued to the plaintiff. The court also noted that the amendment was sought to get away from earlier pleadings and was mutually destructive to the original pleadings.
Issues: The main issue was whether the amendment to the written statement should be allowed after the trial had commenced.
Ratio Decidendi: The court held that an amendment after the trial has commenced should only be allowed if the party seeking the amendment can prove that despite due diligence, the matter could not have been raised before the commencement of trial. The court also emphasized that the amendment should not nullify the advantage accrued to the other party and should not be sought to get away from earlier pleadings.
Final Decision: The court set aside the trial court's order allowing the amendment and allowed the revision petition.
(Revision Petition filed against the order dated 29.3.2005, passed in I.A.No.489/2004 in O.S.No.195/2004 on the file of the Principal District Munsif Court, Ariyalur.)
Revision Petition filed against the order dated 29.3.2005, passed in I.A.No.489/2004 in O.S.No.195/2004 on the file of the Principal District Munsif Court, Ariyalur.
2. The plaintiff in O.S.No.195/2004 on the file of the Principal District Munsif, Ariyalur is the revision petitioner.
3. The revision petitioner/plaintiff filed the suit for permanent injunction restraining the respondent herein and other defendants from interfering with the peaceful possession and enjoyment of the suit schedule property.
4. The respondent herein as the 1st defendant filed his written statement opposing the relief prayed by the revision petitioner/plaintiff and thereafter he filed an application in I.A.No.489/2004 under Order 6 Rule 17 C.P.C. to amend the written statement filed by him on the ground that by mistake he mentioned in the written statement that item No.5 in the suit schedule property was sold to one Augustine and in fact item No.5 of the suit schedule property was allotted to him and is in his possession.
5. This application was resisted by the revision petitioner/plaintiff herein by contending that trial has already commenced and the cross examination of P.W.1 was already completed. The chief examination of D.W.1 was over and the suit is now posted for cross examination of D.W.1. Therefore the revision petitioner/plaintiff contended that the amendment could not be allowed at this belated stage and further the proposed application is an attempt to nullify the advantage accrued to her. The trial court by order dated 29.3.2005 allowed the amendment petition by holding that the proposed amendment would not alter the character of the suit and it was only rectifying the genuine mistakes committed by the respondent herein. Aggrieved by the order, the plaintiff has filed the above Civil Revision Petition under Article 227 of the Constitution of India.
6. Heard the learned counsel for the petitioner and the learned counsel for the respondent. I have also gone through the documents and judgments referred to by them in support of their submissions.
7. Learned counsel for the petitioner strenuously contended that after the C.P.C. amendment Act 2002, which came into effect from 1.7.2002, no amendment should be allowed after the commencement of trial and the amendment sought for by the respondent herein is to nullify the advantage accrued to the revision petitioner that too after the evidence on the side of the plaintiff was closed. He relied on the decision of this court reported in 2005 (3) CTC 412 (Kasiappa Gounder v. Karuppan), 2006(3) CTC 27 (Ramanujam, D. v. R.Panneerselvam) and 2006(1) CTC 55 (Ahamed Meeran, S. v. S.Kumaraswamy).
8. Per contra, learned counsel for the respondent submitted that hyper-technical approach should not be adopted and amendments ought to be granted and allowed when the basic structure of the suit has not been changed. He relied on the decision of the Hon'ble Supreme Court in 2006 (4) SCC 385 (Rajesh Kumar Aggarwal v. K.K.Modi).
9. I have considered the rival submissions.
10. Order 6 Rule 17 C.P.C. after the C.P.C. amendment Act 22 of 2002 reads as under:
"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."
11. From the above it is very clear that a proviso has been added according to which no application for amendment shall be allowed after the tri
