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2018 Supreme(Mad) 1714
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M.V. MURALIDARAN, J.
N. Sankara Iyer & Others - Petitioner
Versus
M. Sankarasugumar & Others – Respondents
CRP(MD)No. 220 of 2017 & CMP(MD)Nos. 991 of 2017 & 2553 of 2018
Decided On : 10-07-2018
For the Petitioners: S. Meenakshi Sundaram, N. Ga. Natraj.
For the Respondents: K.K. Kannan, K. Govindarajan.
The amendment of pleadings is permissible at any stage provided it does not change the nature of the suit, take away the right accrued in favor of the opposite party, or cause substantial prejudice.
Headnote:
Amendment - Civil Procedure Code - Order 6 Rule 17, Order 7 Rule 11 - (1976) 4 Supreme Court Cases 320, (2016) 1 Supreme Court Cases 332, (2013) 9 Supreme Court Cases 349, 1998 (11) CTC 108
Fact of the Case:
The 1st Respondent filed a suit for partition of properties, initially without a declaration relief. The court returned the plaint multiple times, and after necessary amendments, the suit was numbered. The 1st Respondent later sought to withdraw the amendments and make new ones, which the Trial Court allowed. The Petitioners filed a Civil Revision Petition challenging the amendment application.
Finding of the Court:
The Court found that the 1st Respondent's amendment lacked bonafides and was solely to meet the objections of the Defendants. The nature of the suit would completely change, and the Defendants would be prejudiced. The Trial Court failed to consider these aspects and allowed the amendment application taking a lenient view.
Issues: Whether the amendment application lacked bonafides and was solely to meet the objections of the Defendants. Whether the nature of the suit would completely change, and the Defendants would be prejudiced.
Ratio Decidendi: The amendment of pleadings is permissible at any stage provided it does not change the nature of the suit, take away the right accrued in favor of the opposite party, or cause substantial prejudice. Only a bona-fide mistake in pleading can be corrected by seeking amendment.
Final Decision: The Civil Revision Petition was allowed, and the order allowing the amendment application was set aside.
1. The learned Senior Counsel appearing on behalf of the Petitioners argued that the 1st Respondent/Plaintiff filed a plaint vide Gl.No.2745 of 2013 before the learned Principal District Court at Tirunelveli for a partition of three items of property. He alleged that his mother had released her right in the said properties by a sham and nominal release deed dated 02.06.1974, and that he had 1/36th share. The Plaint was returned on 05.12.2013 asking the 1st Respondent/Plaintiff to explain how the suit is maintainable in the face of the release deed. It was represented and again returned on 07.03.2014 by the Learned District Judge with the query
“(i) without the relief of declaration of sham and nominal of the release deed dated 02.06.1974, how the suit for partition in respect of the property of the release deed is maintainable
(ii) How the suit related to the properties of release deed dated 02.06.1974 in within limitation....”.
Although the Counsel initially took the stand vide endorsement dated 25.03.2014 that suit is maintainable even without declaration, he subsequently agreed and withdrew his contention and introduced the prayer for declaration. After the service of summons to the Petitioners/Defendants and other Respondents/Defendants appeared through their respective counsel. On the instruction by the Petitioner’s advocate, the petitioner filed I.A.No.42 of 2015 to reject the plaint as the suit is time barred and also on the ground that there is no cause of action for granting the relief. It was filed on 17.02.2015. In a similar manner the 2nd, 15th and 22nd Defendants filed I.A.No.91 of 2015 under Order 7 Rule 11(d) of Civil Procedure Code to reject the plaint raising various grounds. It was filed on 05.06.2015. The counsel for the Petitioners submitted that as far as I.A.No.42 of 2015 filed by the 1st Petitioner concerned, the 1st Respondent/Plaintiff herein filed the counter on 25.04.2015 after getting several adjournments. Thereafter, the Trial court heard the arguments on 26.08.2015 and both the I.A.No.42 of 2015 and I.A.No.91 of 2015 were reserved for orders on 18.09.2015. Since the earlier presiding officer who heard the arguments was transferred, before the subsequent judicial officer the petitioner’s side arguments were heard in both interlocutory applications on 10.10.2015. Thereafter, the 1st Respondent/Plaintiff herein got adjournment for doing his side of arguments on 28.10.2015, 04.12.2015, 10.12.2015, 20.01.2016, 27.01.2016 and 05.02.2016. On 05.02.2016 the 1st Respondent/Plaintiff has completed his arguments in I.A.No.42 of 2015 and I.A.No.91 of 2015. Thereafter, in both the petitions orders were reserved on 29.02.2016. The Senior Counsel for the Petitioners submit that on 11.02.2016 the 1st Respondent/Plaintiff herein filed an application seeking amendment to amend the plaint in such a manner to fill up the lacuna to cure the defect in the plaint which were the main sheet anchor and bone of contention between the parties. The trial court registered the interlocutory application as I.A.No.37 of 2016. Even though the Petitioners strongly opposed for allowing the amendment of the plaint on several grounds including the ground of depriving the accrued right to the contesting parties; the trial court allowed the amendment application. The Senior Counsel appearing for the Petitioners submit that aggrieved by the same the Petitioners have filed the present Civil Revision Petition. The learned Senior Counsel has placed his reliance on the following case laws :
(i) (1976) 4 Supreme Court Cases 320
M/s. Modi Spinning & Weaving Mills Co. Ltd. and another – Appellants
Versus
M/s. Ladha Ram & Co. – Respondents
Civil Procedure Code, 1908 - Order 6 Rule 17 - Amendment of written statement - Not allowed when the effect would be to displace the plaintiff’s suit and deprive him of a valuable right already accrued to him - An entirely different and new case cannot be substituted by this process - Defendant can place his
