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MADRAS HIGH COURT
N. Paul Vasanthakumar, J.
C.V. Rambabu
Versus
V.C. Jayanthi
C.R.P. (PD) (MD) No. 237 of 2007 and M.P. No. 1 of 2007
Decided on : 12th January, 2009.
Amendment - Civil Suit - Order 6 Rule 17 CPC - Summary of Acts and Sections: Order 6 Rule 17 CPC - The court allowed the amendment of the plaint under Order 6 Rule 17 CPC, emphasizing the need to determine the real question in controversy between the parties and to avoid multiplicity of proceedings. The court also preserved the defendant's right to claim limitation, if any, from the date of filing of the amendment and directed the expeditious disposal of the suit within six months from the date of receipt of the order.
Fact of the Case:
The petitioner filed a suit seeking permanent injunction restraining the respondent from interfering with his peaceful possession of a property. The respondent opposed the suit, claiming ownership based on a sale deed executed in 1990. The petitioner filed an amendment application to include a prayer for declaration that the sale deed was sham and nominal.
Finding of the Court:
The court allowed the amendment of the plaint, emphasizing the need to determine the real question in controversy between the parties and to avoid multiplicity of proceedings. The court also preserved the defendant's right to claim limitation, if any, from the date of filing of the amendment and directed the expeditious disposal of the suit within six months from the date of receipt of the order.
Issues: The main issue was whether the amendment of the plaint, seeking a declaration that the sale deed was sham and nominal, altered the nature of the case and caused prejudice to the defendant.
Ratio Decidendi: The court held that the amendment was necessary for determining the real question in controversy between the parties and emphasized the need to avoid multiplicity of proceedings. The court also preserved the defendant's right to claim limitation, if any, from the date of filing of the amendment.
Final Decision: The court allowed the amendment of the plaint, preserved the defendant's right to claim limitation, if any, from the date of filing of the amendment, and directed the expeditious disposal of the suit within six months from the date of receipt of the order.
This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the Order dated 20.10.2006 made in I.A. No. 131 of 2006 in O.S. No. 632 of 2001 on the file of the Additional District Mun^if Court, Madurai Town.
2. The petitioner, who is a plaintiff in O.S. No. 632 of 2001 on the file of the Additional District Munsif Court, Madurai Town, has filed the above suit seeking permanent injunction restraining the respondent/defendant from interfering with his peaceful possession, in the said suit, the respondent herein filed a Written Statement by stating that the suit filed without seeking to set aside the Sale Deed dated 5.11.1990 is not maintainable. In order to meet the technical objection, the petitioner filed an application in I.A. No. 131 of 2006 for amending the plaint to include the prayer for declaration that the Sale Deed dated 5.11.1990 is not binding on the plaintiff, as the same was sham and nominal.
3. The respondent filed a counter affidavit and opposed the amendment application. The said amendment application was dismissed by the learned Additional District Munsif, Madurai town by holding that the amendment application was filed after lapse of five years of the filing of the suit and no explanation was offered for filing the amendment application after lapse of five years of the filing of the suit. It is also held in the order that the Sale Deed, which is sought to be set aside, was executed 16 years prior to the filing of the amendment application and the period of limitation to set aside the execution of sale deed is also over.
4. The said order is challenged in this civil revision petition by contending that the limitation to file a suit is a mixed question of fact and law and the said issue cannot be decided at the interlocutory stage. It is also contended that the amendment application filed by the petitioner was not for setting aside the Sale Deed and for a declaration that it is non-est in the eye of law and the Judgment relied on by the Court below in the decision in 2005 (4) LW 244 : (2005) 4 MLJ 269 is not applicable to the facts of the present case.
5. The learned counsel for the petitioner submitted that the Sale Deed dated 5.11.1990 itself was cancelled in the year 2000 and as per the Judgment of a Full Bench of this Court in the decision in 2006 (5) CTC 609 : (2007) 1 MLJ 320, the Sale Deed having been executed at Parasala in Trivendram District, Kerala State, is not valid. The learned counsel for the petitioner further submitted that while ordering amendment, the question of limitation, if any, can also be left open to be decided in the main suit or else the amendment application can be ordered from the date of filing of the amendment application.
6. The learned counsel for the respondent, on the other hand, submitted that even though the Sale Deed was registered in the year 1990 before the Sub Registrar, Parasala, the difference in stamp value was already paid and the said sale deed gets validated. Since the said sale deed is valid for all purposes, the Court below rightly dismissed I.A. No. 131 of 2006 seeking amendment of the plaint.
7. I have considered the rival submissions made by the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondent.
8. In the suit, the petitioner has prayed for permanent injunction restraining the defendant, her family members, her men, agents or any person having got title any through her from in any way dispossessing or interfering with the peaceful possession and enjoyment of the suit property by the plaintiff and for permanent injunction restraining the defendant from encumbering the suit property by way of sale, mortgage, othi and other modes.
9. The said suit was filed in the year 2001. In the written statement filed by the defendant, it is stated that the plaintiff executed a registered sale deed in favour of the defendant on 5.11.1990 after receiving the entire consideration and from th
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