V.G.N.Devadoss v. T.G.Krishnamurthy
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 26.10.2016 Delivered on: 04.11.2016
CORAM
THE HONOURABLE THIRU JUSTICE V. PARTHIBAN C.R.P.(PD) No.1244 of 2012 & M.P.No.1 of 2013 V.G.N.Devadoss .... Petitioner vs
1. T.G.Krishnamurthy
2. P.Jayachandran
3. Santhanakrishnan
4. Ravi
5. K.M.Manjula
6. Natarajan
7. Siva
8. Meenakumari
9. Swanalatha 10.Senthilkumar 11.Jeyaprakash 12.Ramachandran 13.Raja Raghavan 14.Elangovan 15.Dellirani 16.
Baburaj Jain 17.Ramesh Jain 18.Gowthamchand Jain 19.Ramesh 20.Arivudainambi 21.Subramani 22.Poongavanam 23.Elumalai 24.Saraswathi 25.Idumathi
26.Porkarairani 27.B.Thasil 28.Balaraman 29.Durai 30.Anbu 31.Padmanabhan 32.Polam Mahadeva Reddy 33.Soundararajan 34.Shanmugam 35.Gopikrishnan 36.Venkatesan 37.Kadhiresan 38.Sampathkumar 39.Harinarayanan 40.Meenatchi 41.Saravanan 42.Prasanna Devi 43.Pudhumaiselvi 44.Harinarayanan 45.Venkatrasu 46.Meena 47.Ramanathan 48.Dillirani 49.Latha Chandrasekar 50.Doss 51.Karpagam 52.Elanchezian 53.Udhayakumar 54.Vijayakumar 55.Somasundaram 56.Rajeswara Rao 57.Rajakumar 58.Venkatesan 59.B.Latha 60.N.Latha 61.Bhaskar 62.Vanathi Ashok 63.Solaiammal 64.Kalpana 65.Sivaramakrishnan 66.Venkatesan 67.Santhanalakshmi 68.Kasturi
69.Chennai Thiruverkadu Town Panchayat having office at Main Road, Thiruverkadu, Chennai-77 70.Jafferull 71.Emamadin 72.Pradeepkumar 73.Sumitha 74.Saseendran Samuel 75.Srinigeerarisa 76.Venkatesan 77.Sripriya 78.R.Kanchana 79.Raffique Mohammed 80.Ramesh 81.Kishore Babu 82.Najamunisa 83.Nalini 84.Thennappan 85.Gnanasambandan 86.Sathyamoorthi 87.K.Bala 88.Jaya Shankar Murudiyar 89.Radha 90.Mandrikon 91.Chandrasekara Mudaliar 92.Dozoco India Pvt.Ltd.
.... Respondents Civil Revision Petition filed under Article 227 of the Constitution of India against the order, dated 23.01.2012 passed by the learned Additional District Munsif, Poonamallee in I.A.No.1087 of 2011 in O.S.No.790 of 1995.
For petitioner :
Mr.N.Damodsaran for Mr.T.R.Raja Raman For respondent :
Mr.R.Krishnaswamy for R2
ORDER
This revision petition has been filed against the order dated
23.1.2012 passed by the learned trial Judge, allowing the I.A.No.1087 of 2011 in O.S.No.790 of 1995 filed under Order 6 Rule 17 CPC, seeking amendment to the plaint.
2. Heard the learned counsel appearing for both sides and perused the entire materials available on record.
3. The petitioner herein is the second defendant in the above said suit in O.S.No.790 of 1995 filed by the first respondent herein/plaintiff, for permanent injunction, to restrain the defendants including the petitioner herein, from selling or encumbering the suit property and for declaration.
Pending the suit, the first respondent/plaintiff moved an interlocutory application, seeking certain amendments to be incorporated in the plaint including the prayer of declaration that the power of attorney deed executed by the first defendant in favour of the second defendant is not valid in law and that based on the said attorney deed, the sale made by the second defendant in favour of the defendants 3 to 95 in the suit, was null and void and not binding on the plaintiff.
4. According to the revision petitioner/second defendant, the amendment was sought after three years, which is beyond the period of limitation as prescribed under the Limitation Act, since the plaintiff
had knowledge of the first defendant selling the property to the second defendant, who in turn to the defendants 3 to 95 as early as on 29.1.2008 when a memo came to be filed on behalf of the first defendant in that regard in the pending suit.
5. In fact, the first respondent/plaintiff filed an impleading petition in I.A.No.248 of 2008, seeking impleadment of the defendants 2 to 95 on 19.6.2008 and the same was allowed on 28.6.2010. Thereafter, another interlocutory application in I.A.No.271 of 2008 was filed by the plaintiff, seeking inclusion of additional prayer for declaration of title and the same was also allowed on 30.4.2008.
6. The case of the revision petitioner is that the first respondent/plaintiff ought to have filed the application, seeking the amendment, within a period of limitation of three years and therefore, failure to file the application within the prescribed time limit, is per se hit by law of limitation and hence not maintainable. The learned counsel relied upon the proviso to Order 6 Rule 17 CPC, which envisages that no application for amendment shall be allowed after the commencement of the trial, unless the Court comes to the conclusion that in spite of due diligence, the parties could not have
raised the matter before the commencement of trial. The learned counsel also contended that the issue of limitation in the instant case is not mixed question of facts and law and that the proceedings pending before the trial Court was admitted and therefore, the law of limitation will have to be applied, which does not call for any adjudication at a later stage.
7. Per contra, learned counsel for the first respondent/plaintiff contended that the relief sought for in the interlocutory application, is only a consequential in nature and sought for only on the basis of the case set up by the defendants and that no new case was being introduced and that the character and structure of the suit was also not being altered by seeking such amendment.
8. On behalf of the revision petitioner, the following decisions were cited, viz., i) 2006(3) CTC 27 (D.Ramanujam versus R.Panneerselvam) ii) 2008 (14) SCC 364 (Rajkumar Gurawara (Dead), by LRs., versus S.K.Sarwagi & Company Private Limited and another) iii) 2011 (2) CTC 28 (N.Lalitha and others versus Manujothi Ashramam, rep. by its President and others)
9. The above referred first decision deals with the amendment of pleadings after commencement of the trial, in which, this Court held that the amendment of pleadings cannot be allowed after commencement of trial. The second decision rendered by the Hon'ble Supreme Court is also on the same issue that after commencement of trial, whether amendment can be sought for. The third decision deals with the amendment of pleadings and to over come the objections with regard to the limitation and such relief sought to be introduced by the plaintiffs is barred by limitation and such amendment cannot be allowed.
10. As far as the first issue is concerned, though it is correct in law that amendment cannot be sought after commencement of trial and the party seeking amendment should exercise due diligence and seek such amendment before commencement of trial as per proviso to Order 6 Rule 17 CPC. In the instant case, amendment sought is only a consequential in nature and as the subject interlocutory application in I.A.1087 of 2011 has proximity to the events unfolded regarding the selling of properties to the second defendant, who in turn to defendants 3 to 95. However, the learned Judge has not foreclosed the contention as regards the limitation urged by the revision petitioner, which according to the learned Judge, can be
determined after full fledged trial. In such view of the matter, the revision petitioner/2nd defendant is not prejudiced by the order passed by the learned Judge in allowing the said interlocutory application. Therefore, the decisions cited by the learned counsel for the revision petitioner though cannot be quarreled with, but the same cannot be applied to the facts of the present case.
11. On behalf of the first respondent/plaintiff, the following decisions were cited, viz., i) AIR 1967 SC 96 (A.K.Gupta and Sons Ltd. Versus Valley Corporation) ii) AIR 1995 SC 187 (Vineet Kumar versus Mangal Sain Wadhera)
12. Both the above referred to decisions deal with the issue where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, such amendment can be allowed even after statutory period of limitation.
13. Considering the submissions put forth by the respective parties and also on going through the order dated 23.1.2012 passed by the learned trial Judge, allowing the interlocutory application, this
Court does not find any irregularity or infirmity therein in order to interfere with the same since the rights of the parties are left open to be decided during the trial. Such being the case, no prejudice would be caused to the revision petitioner as his objection regarding limitation is left open to be decided at the time of trial. In the light of the above discussion, the Civil Revision Petition is dismissed. No costs. Consequently, connected MP is closed. Since the suit is of the year 1995 and more than two decades gone by now, the trial Court is directed to complete the trial as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order.
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V.PARTHIBAN, J.
suk Pre delivery Order in CRP PD No.1244 of 2012 04-11-2016 http://www.judis.nic.in