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2012 Supreme(Mad) 4015
High Court of Judicature at Madras
S. RAJESWARAN
J.R. Arun Kumar & Others
Versus
K. Boopalan
C.R.P.(PD) Nos.89 & 90 of 2010 & M.P.Nos.1 and 1 of 2010
Decided On : 03-10-2012
For the Petitioners:B. Kumar, Senior Counsel for R. Loganathan, Advocate.
For the Respondent:S. Subbiah for S.D. Ramalingam, Advocates.
The main legal point established in the judgment is that amendments to pleadings under Order VI Rule 17 CPC are not maintainable after the commencement of trial unless due diligence is shown by the party seeking the amendment.
Headnote:
Amendment of Pleadings - Civil Revision Petitions - Order VI Rule 17 CPC - Summary of Acts and Sections - The court allowed the amendment applications filed by the plaintiff after the commencement of trial, which was challenged by the defendants in the Civil Revision Petitions. The court referred to several judgments to determine the legal principles governing the amendment of pleadings under Order VI Rule 17 CPC. The court held that the proviso to Order VI Rule 17 CPC, which prohibits amendment after the trial has commenced unless due diligence is shown, was not satisfied by the plaintiff. The court set aside the trial court's order allowing the amendments.
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendants to protect his possession of the suit schedule property. After the commencement of trial, the plaintiff filed applications to amend the pleadings and implead third parties as proposed defendants. The trial court allowed the applications, which were challenged by the defendants in the Civil Revision Petitions.
Finding of the Court:
The court found that the plaintiff failed to show due diligence in raising the matters before the commencement of trial, as the defendants had already denied the plaintiff's title and claimed ownership based on specific documents in their written statement filed in 2007. The court held that the amendments were not maintainable after the commencement of trial and set aside the trial court's order.
Issues: The main issue was whether the amendments to the pleadings were maintainable after the commencement of trial, as per the proviso to Order VI Rule 17 CPC.
Ratio Decidendi: The court's decision was based on the interpretation of the proviso to Order VI Rule 17 CPC, which prohibits amendments after the trial has commenced unless due diligence is shown. The court found that the plaintiff failed to show due diligence and therefore set aside the trial court's order allowing the amendments.
Final Decision: The court allowed the Civil Revision Petitions and set aside the trial court's order allowing the amendments. The trial court was directed to complete the trial of the suits within three months.
1. Since the issue involved in both the Civil Revision Petitions are one and the same, a common order is being passed to dispose off these two Civil Revision Petitions.
2. The defendants in O.S.No.4312 of 2007 are the revision petitioners in both the Civil Revision Petitions and the respondent in both the Civil Revision Petitions is the plaintiff in the suit.
3. For the sake of convenience, the parties are referred to herein as per their rankings in the suit.
4. O.S.No.4312 of 2007 was filed by the plaintiff for the relief of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property. Written statement was filed by the defendants on 30.08.2007. Plaintiff as P.W.1 let in evidence on 10.12.2007 by filing an affidavit and marking documents, namely, Exs.A1 to A29. He was cross-examined on 13.12.2007 and the cross was completed on 02.06.2008. In April 2009, the plaintiff filed I.A.Nos.6547 and 6548 of 2009. I.A.No.6547 of 2009 filed by the plaintiff under Order I Rule 10 CPC to implead third parties as proposed defendants in the suit and I.A.No.6548/2009 was filed by the plaintiff to amend the pleadings in the plaint in the suit under Order VI Rule 17 CPC. A common counter affidavit was filed by the defendants opposing these two applications. The trial court in and by order dated 19.11.2009, by a common order, allowed the two applications. Aggrieved over the same, the defendants have filed the above Civil Revision Petitions for the aforesaid prayer.
5. On 12.01.2012, this Court in both the C.R.Ps has granted stay not to carry out the amendment.
6. In O.S.No.4312 of 2007, the case of the plaintiff is that he is the absolute owner of the suit schedule property and the defendants 1 to 3 attempted to interfere with his possession and therefore, the bare injunction suit was filed to protect his possession.
7. In the written statement filed by the defendants 1 to 3, it was denied that the plaintiff owned the suit scheudle property. According to the defendants, the first defendant and his two sons are the joint owners of the suit property and in that capacity they entered into an agreement of sale proposing to sell the property with the second defendant. When there was a dispute between them, the second defendant filed O.S.No.196 of 2004 for specific performance of the agreement. The suit was decreed on compromise and thereafter, the nominee of the second defendant by name M.Kangeyan (the proposed 6th defendant in I.A.No.6547 of 2009) paid the balance sale consideration and purchased the property vide sale deed dated 11.07.2007 which was registered as Doc.No.6435/2007 on the file of SRO, Sembiam. The said Kangeyan is the son of the second defendant.
8. Admittedly, after P.W.1's cross-examination was over, these two interlocutory applications were filed i.e., I.A.No.6547/2009 to amend the plaint with a number of amendments which includes two new prayers namely 1) for declaration that the plaintiff is the absolute owner of the suit schedule property and 2) for declaration that the sale deed dated 11.07.2007 registered as Doc.No.6435/2007 and the consequential Rectification Deed dated 08.08.2007 is collusive, sham and nominal without any consideration and in I.A.No.6548/2007, the plaintiff wanted to implead the said Kangeyan who had purchased the above property under the above referred sale deed and two others as proposed defendants.
9. Both the applications were stoutly resisted by the defendants and the proposed defendants by filing a common affidavit. They relied on the amendment to Order VI Rule 17 and according to the amended provision, no application for amendment will be allowed after the commencement of trial. The only exception is that the applicant should show his due diligence and bonafides for not raising the matter before the commencement of trial. In the counter they pointed out that P.W.1 was already cross-examined not only in the
