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2014 Supreme(Mad) 2759
High Court of Judicature at Madras
R. MALA, J.
E.K. Palanisamy
Versus
Manonmani & Others
C.R.P (PD) No. 3015 of 2011 & M.P. No. 1 of 2011
Decided On : 26-08-2014
For the Petitioner:N.S. Sivakumar, Advocate.
For the Respondents:N. Manokaran, Advocate.
The mandatory nature of Order VI Rule 17 of C.P.C. and the requirement to prove due diligence for amendments after the commencement of trial.
Headnote:
Amendment Application - Property Dispute - Order VI Rule 17 of C.P.C. - 2013 (9) SCC 485, 2014 (1) MWN (Civil) 184, 2013 (2) MWN (Civil) 395, 2012 (7) MLJ 892, 2012 (1) MWN (Civil) 753, 2000 (1) CTC 163, 2002 2 SCC 2, 2008 14 SCC 364, 2012 11 SCC 341, 2012 2 SCC 300, 2012 5 SCC 337, 2006-2-L.W.776, 2006 (5) CTC 609
Fact of the Case:
The plaintiffs filed a suit for bare injunction claiming ancestral property. The defendant disputed the plaintiffs' title and filed a written statement. During the trial, the plaintiffs sought to amend the plaint to include a prayer for declaration of title.
Finding of the Court:
The court found that the plaintiffs filed the amendment application after the commencement of trial and failed to prove due diligence in collecting materials for the amendment. The court relied on various legal provisions and case laws to conclude that the amendment was belated and an afterthought to avert the inevitable consequence.
Issues: The main issue was whether the plaintiffs had pleaded due diligence in collecting materials for the amendment after the commencement of trial.
Ratio Decidendi: The court's decision was influenced by the mandatory nature of Order VI Rule 17 of C.P.C., which restricts amendments after the commencement of trial unless due diligence is proven. The court also considered various case laws to support its decision.
Final Decision: The court dismissed the revision petition, confirming the trial court's decision to allow the amendment application on payment of costs by the plaintiffs.
1. Civil Revision Petition is filed against the fair and decreetal order dated 17.06.2011 made in I.A.No.51 of 2011 in O.S.No.208 of 2008 on the file of the District Munsif Court, Kangeyam.
2. The respondents herein as the plaintiffs filed a suit for bare injunction stating that the suit property is the ancestral property of their father Kaliappa Gounder and he was in possession and enjoyment of the same and he paid kists and since he died intestate on 03.01.2011, the plaintiffs, who are the daughters of Kaliappa Gounder and his wife are succeeded the property. The plaintiffs have partitioned the property and in pursuance of the partition, there was a mutation of revenue records. Since the defendant/revision petitioner herein, without any right, attempted to interfere with their peaceful possession and enjoyment of the suit property, the plaintiffs constrained to file a suit for bare injunction.
3. The defendant has filed a written statement stating that Kaliappa Gounder is not in possession and enjoyment of the suit property and patta also not stands in his name. The suit property and other properties are owned by one Subbaraya Gounder, who died bachelor, but he adopted his brother's daughter namely, Valliammal, who is the mother of defendant. The said Subbaraya Gounder had executed the Will in favour of the defendant and his brothers on 15.09.1976 and he died in the year 1977 and as legatees, the defendant and his brothers are in possession of the suit property. The father of the defendant namely, Kumarasamy Gounder purchased the suit property and other properties on 15.09.1976 from Valliammal and Pappathiammal and he died on 18.09.1982 and in pursuance of the sale deed and Will, the defendant and his brothers are in possession and enjoyment of the same and the defendant has purchased the properties from his brothers on 04.03.2008 and he is in possession and enjoyment of the same and the mutation of revenue records have also been made in this regard. So the partition deed executed between the plaintiffs is not true and genuine.
4. After settlement of issues, on the side of the plaintiffs, P.W.1 to P.W.3 were examined. On the side of the defendant, D.W.1 was examined and while he was in witness box, the plaintiffs/respondents herein have come forward with the application in I.A.No.51 of 2011 to amend the plaint for adding prayer for declaration of title. The trial Court, after hearing both sides, allowed the application, against which, the present revision petition is preferred by the revision petitioner/defendant.
5. Learned counsel for the revision petitioner/defendant submitted that the amendment application was filed by the plaintiffs after commencement of trial. As per proviso to Order VI Rule 17 of C.P.C., the plaintiffs are not entitled to amend the prayer in the plaint after commencement of trial and they have not pleaded that due diligence, they are unable to collect the materials for amendment. That factum was not considered by the trial Court. Hence, he prayed for allowing the revision petition.
6. Resisting the same, learned counsel for the respondents/plaintiffs submitted that the grand father of the respondents/plaintiffs namely, Kuppanna Gounder purchased the property and that has been succeeded by the plaintiffs/respondents, since their father Kaliappa Gounder died intestate. Thereafter, the respondents/plaintiffs entered into partition between themselves and in pursuance of the same, they are in possession of the suit property. Since the revision petitioner/defendant has denied the title, they are claiming title under the Will alleged to be executed by Subbaraya Gounder, who is alleged to be the owner of the suit property. So the plaintiffs forced to file the amendment application to amend the prayer for declaration of title. It is further submitted that if the amendment will be carried out, no new cause of action will arise for the suit and the claim is not barred by limitation and nature of the
