1. This Civil Revision Petition is directed against the order dated 2.9.2004 of the learned Principal District Munsif, Tirunelveli in I.A No. 1076 of 2004 in O.S No. 297 of 2002, allowing the Amendment Application filed under Order 6, Rule 1, C.P.C on payment of costs of Rs. 1000. The Defendants are the Revision Petitioners.
2. O.S No. 297 of 2002 relates to House Property. Case of the Plaintiff is that the Suit Property belonged to one Hassan Mohideen, who has executed a Registered General Power of Attorney in favour of one S. Arunachalam to deal with the Plaint Schedule Property, The Plaintiff purchased the Suit Property from the said S. Arunachalam by a Sale Deed dated 1.12.1997 In the said Sale Deed, a major portion of the Sale Price has been reserved for payment. Subsequently, the said reserved amount has been paid by the Plaintiff to the General Power or Attorney S. Arunachalam on 11.4.2002 The Plaintiff has received the “Panapattru Receipt” from the said S. Arunachalam. Immediately after the Sale, possession of the Suit Property was delivered to the Plaintiff and the Plaintiff is in possession and enjoyment of the Suit Property. The Assessment has been changed in the name of the Plaintiff and the Plaintiff has also paid the Tax due for the Suit Property. Electricity Service connection has also been transferred in the name of the Plaintiff on 25.7.1998 Defendants 1 and 2 are making false claim in the Suit Property. On 10.5.2002, Defendants 1 and 2 instigated by Defendants 3 and 4 came and demanded the Plaintiff to make the payment of the amount alleged to be due from his Vendor. Since the Defendants are attempting to interfere with the Plaintiff's possession and enjoyment, of the Property, the Plaintiff has filed the Suit for Permanent Injunction.
3. The Defendants have filed the Written Statement claiming that Hassan Mohideen has executed a General Power of Attorney on 20.09.1996 appointing the Second Defendant as his General Power Agent to deal with the Property. The Second Defendant has executed a Sale Deed on 2.11.1997 in favour of Defendants 1, 3 and 4 for a consideration of Rs. 2,00,000 and the Sale Deed dated 2.11.1997 has been registered on 20.2.1998 The said Hassan Mohideen has also executed Registered Deed of Acceptance on 3.3.1999 in favour of the Purchasers under the Sale Deed dated 2.11.1997 Pursuant to the Sale Deed, the Defendants are in possession of the Suit Property. The Defendants are paying the Property Tax and also the Electricity Charges. On 5.1.1997, Hassan Mohideen requested the Purchasers to lease the upstairs portion for his stay and the upstairs portion has been leased to him for a monthly rent, of Rs. 1000. The Creditors of Hassan Mohideen seem to have threatened him and got some documents executed under coercion. Those documents would not in any way bind the Defendants and their Sale Deed. Since the Plaintiff has not filed the Suit for Declaratory relief, the Suit is not maintainable and the Suit is also bad for non-joinder of necessary party.
4. The Trial commenced. The Parties have adduced evidence. At the stage when the case was posted for arguments, on 28.7.2004, I.A No. 1076 of 2004 was filed for Amending the Plaint-seeking to include the prayer Declaration of the Plaintiff's Title. The Court Fee also was sought to be changed under Section 25(b) of the Tamil Nadu Court Fees and Suits Valuation Act (hereinafter referred to as “the Act”). According to the Plaintiff, both in the Written Statement as well as during the Trial, the Defendants have denied the Title of the Plaintiff and hence, for complete and effective adjudication, the Plaint is to be amended. The plaint was originally valued under Section 27(c) of the Act. After the proposed Amendment the Suit Property has been valued at Rs. 5,00,000. Under Section 25(b) of the Act, the Court Fee is payable on the half of the Market Value i.e at Rs. 2,50,000. The Defendants have strongly opposed the Amendment Application by filing the Counter Statement alleging that if the proposed Amendment is allowed, it would oust the Jurisdiction of the District Munsif Court. It was further alleged that the Trial has already been completed and the Amendment Application, which has been filed at the stage of arguments is highly belated and not maintainable.
5. Copiously extracting number of decisions, learned District Munsif found that though the Amendment Application has been filed belatedly, the Amendment Application is to be allowed to avoid multiplicity of the proceedings and in the interest of Justice. Learned District Munsif inter alia found:
• that, the Amendment cannot be disallowed merely because the value of the Property is higher ousting the Jurisdiction of the District Munsif Court;
• to avoid multiplicity of proceedings and in the interest of Justice, the Amendment Application though filed belatedly is to be allowed;
• the delay in filing the Amendment Application could be compensated by ordering payment of costs of Rs. 1000 to the Defendants.
6. Aggrieved over allowing the Amendment Application, the Revision Petitioners/Defendants have preferred this Civil Revision Petition. Learned counsel for the Revision Petitioners contended that when the Trial was concluded and the case has been posted for arguments, the Amendment Application cannot be allowed in view of Code of Civil Procedure (Amendment) Act, 2002. Drawing the attention of the Court to the filing of the Written Statement on 12.11.2002, learned counsel for the Revision Petitioners/Defendants contended that earlier no diligence steps had been taken by the Respondent/Plaintiff for filing the Amendment Application. In support of his contention that the Amendment Application is not maintainable after the Code of Civil Procedure (Amendment) Act, 2002, learned counsel for the Revision Petitioners has relied upon the decisions Kasiappa Gounder, S/o. Manthiriappa Gounder, Periya Thadagam, Verapandi, Coimbatore Taluk, 2005 (3) CTC 412 and Ramasamy Raja and another v. P. Subbayya Pillai, 2005 (3) CTC 640.
7. Countering the arguments, learned counsel for the Respondent/Plaintiff has submitted that Proviso to Order 6, Rule 17, C.P.C would be applicable only to the pleadings of the Suit filed after 1.7.2002 Placing reliance upon the decision Rethinam Alias Anna Samuthiram Ammal v. Syed Abdul Rahim, 2005 (3) CTC 321, learned counsel for the Respondent/Plaintiff has submitted that the Proviso to Order 6, Rule 17, C.P.C would have no applicability to the Pleadings filed prior to 1.7.2002 Placing reliance upon the decision Sampath Kumar v. Ayyakannu, 2002 (4) CTC 189: 2003 (2) LW 21, learned counsel for the Respondent/Plaintiff has submitted that in considering the Amendment Application, Courts are to adopt, a liberal approach. Reiterating the findings of the Trial Court, learned counsel for the Respondent/Plaintiff has submitted that the delay in filing the Amendment Application has been properly compensated by directing the Respondent/Plaintiff to pay the costs of Rs. 1000 and that the impugned Order does not suffer from any infirmity warranting interference.
8. Upon consideration of the contentions of both Parties, Impugned Order and other materials on record, the following points arise for consideration in this Civil Revision Petition:
(i) Whether the Plaintiff was justified in filing the Amendment Application after the conclusion of the Trial and at the stage of arguments?
(ii) Whether the Impugned Order allowing the Amendment Application on payment of Costs of Rs. 1000 is right and can be sustained?
9. The subject matter of the dispute is the House Property-Tirunelveli, Vijayaraghava Mudaliar Chatram, Balaji Nagar, S. No. 229/6, Plot No. 13, Door No. 13 House and the site thereon. The Plaintiff claims to have purchased the Property from the vendor Hassan Mohideen through his Power of Attorney-Arunachalam for a valuable consideration on 1.12.1997 As per the recitals in the Sale Deed, the Sale Consideration was reserved for payment later on. Subsequently, according to the Plaintiff, he has paid the amount to the said Arunachalam on 11.4.2002 and received the “Panapattru Receipt” from him. Immediately within a month thereafter, the Suit has been filed on 14.5.2002 According to the Plaintiff, after the purchase House Tax Assessment has been transferred in his name and the Electricity Service connection bearing No. MHB 179 was also changed in his name. The Defendants are alleged to have made claim over the Suit Property on 10.5.2002 In the Written Statement, the Defendants claimed to have purchased the Suit Property on 2.11.1997 from the said Hassan Mohideen through the Power of Attorney viz., the Second Defendant.
10. Even before the filing of the Suit, the Title of the Plaintiff appears to have been denied. Previously, there was a Police Complaint. During the Enquiry in the Police Station, the First Defendant-Ahamad Meeran is alleged to have stated to the Police that the Property belongs to Defendants 1, 3 and 4. In his Evidence, P.W 1 has admitted about the Enquiry in the Police Station and the Statement by the First Defendant that the Suit Property belongs to him through a Sale Deed. P.W 1 has also admitted that D.W 1 has shown the Sale Deed in his favour in the Police Station. During Enquiry in the Police Station, the Plaintiff must have known about the denial of his Title. But, the Plaintiff has not chosen to file the Suit for Declaration of his Title. He remained content only by filing the Suit for bare Permanent Injunction.
11. The Written Statement was filed on 12.11.2002 In the Written Statement, the Defendants have clearly denied the Title of the Plaintiff and claimed Title in themselves through the Sale Deed dated 2.11.1997 The Defendants have alleged that they have purchased the Suit Property for a consideration of Rs. 2,00,000 by the Bale Deed dated 2.11.1937 which was registered on 20.2.1998 In Para (7) of the Written Statement, the Defendants have further challenged the maintainability of the Suit, since the Suit has not been filed for Declaratory relief when the Plaintiff's Title is in dispute. Thus, a plea was raised as to the maintainability of the Suit and not claiming Declaratory relief. In fact, the Plaintiff was aware of such denial of his Title in the Written Statement. In the Affidavit in I.A No. 1076 of 2004, the Plaintiff has alleged that the Defendants have denied his Title. Though the Plaintiff was aware of the denial of his Title in the Written Statement, even after filing of the Written Statement, the Plaintiff has not taken any steps for Amending the Plaint.
12. The Trial commenced. The Parties have adduced evidence. The Plaintiff was examined on 2.4.2004 Later, he was recalled and examined on 2.6.2004 In the cross-examination, P.W.1 was questioned about the non-seeking of Declaratory relief. He has stated- “” During the entire course of Trial, it was made clear that the Plaintiff's Title was denied and the Defendants asserting Title in themselves. The entire cross-examination has been directed in denying the Title of the plaintiff. During the Cross-examination, it was suggested to P.W 1 “” Though P.W 1 was examined on 2.4.2004 and later recalled and examined, even at that stage, the Amendment application was not filed. Only when the case was posted for Arguments on 28.7.2004, the Amendment Application was filed.
13. For appreciation of the stage in which the Amendment Application was filed we may usefully refer to certain relevant dates:
Plaint Filed on
:
15.5.2002
Written Statement filed on
:
12.11.2002
Trial Commenced
:
2.4.2004
Plaintiff recalled as per order in
I.A No. 629/2004
:
2.6.2004
Case posted for Arguments
:
28.7.2004
I.A No. 1076 of 2004 filed to
re-open the case
:
16.8.2004
From the above, it is made clear that the Amendment Application has been filed after the conclusion of the Trial. Needless to point out that the Application has been filed belatedly.
14. By the proposed Amendment, the Suit for Permanent Injunction was sought to be amended as the Declaration of Plaintiff's Title. The Court Fee is also sought to be corrected as:
“….. The Plaintiff values the Suit claim at Rs. 5,00,000 and pays Court Fee to the Half of the value of Rs. 2,50,000 and pays Court Fee to the value of Rs. 18,750.50 under Section 25(b) of the Tamil Nadu Court Fees Act. ……..”
15. The proposed Amendment though appears to be on the same set of facts, two consequences emerge:
• The parties have already undergone Trial. The Trial proceeded on the footing that the Suit is for bare Permanent Injunction. Now, if
• the proposed Amendment is to be allowed, the entire Trial Proceedings are to be re-opened almost resulting in de novo trial.
• The value for the Suit would be higher. For declaratory relief, the property is valued at Rs. 5,00,000. Under Section 25(b) of the Act, the Court. Fee payable is half of the Market. Value i.e Rs. 2,50,000. It the proposed Amendment is to be allowed in view of the valuation, the Suit is to be transferred to the Sub-Court. After the Trial has been fully completed, it would be improper to send the Suit to the other Court.
16. Learned counsel for the Respondent/Plaintiff has contended that the delay in filing the Amendment Application cannot be a ground to decline permission to amend the Plaint. No doubt, the delay and laches by themselves are not the ground for declining the Amendment. Contending that the delay itself cannot be a ground for declining the Amendment, learned counsel for the Respondent/Plaintiff has relied upon the decision of the Supreme Court reported in Sampath. Kumar v. Ayyakannu, 2002 (4) CTC 189: 2003 (2) LW 21, where the Supreme Court has ordered allowing of the Amendment Application riled 11 years after the Suit. In the said Suit, in view of the dispossession of the Plaintiff subsequent to the Suit, the Plaintiff was permitted to amend the Suit for Bare Injunction into a Suit for Declaration of Title and Recovery of Possession. In the said decision, the Supreme Court has observed:
“….. Order 6, Rule 17 of the C.P.C confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceeding and on such terms as may be just. Such amendments as are directed towards putting forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the Suit alone but by reference to the stage to which the hearing in the Suit has proceeded. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case, generally it can be assumed that the Defendant is not prejudiced because he will have full opportunity of meeting the case of the Plaintiff as amended. In the latter cases, the question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for Amendment….” (underlining added)
17. In the above decision, the Supreme Court has clearly made a distinction between pre-trial amendments which are allowed more liberally than those which are sought to be made after the commencement of the Trial and after conclusion thereof. In the casts before the Supreme Court it was a pre-trial Amendment wherein the Supreme Court has adopted a liberal approach in allowing Amendment Application filed after 11 years. In the instant case, the Trial has been completed and the case was posted for arguments. Hence, it is a Post Trial Amendment. After the conclusion of the Trial, no liberal approach could be adopted. In the facts and circumstances of the case, this Court, is of the view that the proposed Amendment ought to have been brought out much earlier.
18. Learned counsel for the Revision Petitioner assailed the Impugned Order mainly contending that in, view of the Proviso to Order 6, Rule 17, C.P.C (Code of Civil Procedure (Amendment) Act, 2002) no application for Amendment of the pleadings shall be allowed after the trial has commenced.
19. Order 6, Rule 17, C.P.C has been amended by the C.P.C Amendment Act with effect from 1.7.2002 A new proviso has been added to the rule, namely that no application for amendment of the pleadings shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of Trial. In Kasiappa Gounder, S/o. Manthiriappa Gounder, Periya Thadagam, Verapandi, Coimbatore Taluk, 2005 (3) CTC 412 and P. Subba Naicker v. Veluchamy Naicker, 2004 (1) CTC 742, this Court has held that after the Trial of the case, no Application for Amendment of the Pleadings shall be allowed. In the decision Rethinam alias Anna Samuthiram Ammal v. Syed Abdul Rahim, 2005 (3) CTC 321, P.K Misra, J. referring to Section 16 of the Code of Civil Procedure (Amendment) Act 2002, held that in respect of the Plaint or Written Statement filed before 1.7.2002, the Proviso to Order 6, Rule 17, C.P.C would have no applicability. In the said decision, the learned Judge has held:
“6. Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows:
“16. Repeal and Savings.— (1) ……….
(2) ……….
(b) the, provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c) ……….”
The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed before the commencement, of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act, 2002. As already indicated, the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act, 2002 came into force with effect from 1.7.2002 From the bare reading of the provisions contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, it is clear that such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously include the Plaint and Written Statement. Therefore, in respect, of the Plaint, or Written Statement filed before 1.7.2002, the proviso to Order 6, Rule 17, C.P.C would have no applicability…..”
Learned Single Judge has also expressed the view that Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 was not brought to the notice of the Court in the case P. Subba Naicker v. Veluchamy Naicker, 2004 (1) CTC 742. Considering the facts and circumstances of this case, this Court is not expressing any view on the contra views.
20. Suffice it to point out, that even de hors the Cods of Civil Procedure (Amendment) Act, 2002, (the Proviso to Order 6, Rule 17, C.P.C), the Amendment Application filed belatedly after the conclusion of the Trial cannot be entertained. In view of the, conclusion of the Trial and other circumstances, valuable rights have been accrued to the contesting Defendants. By allowing the proposed Amendment, serious prejudice would be caused to the Defendants. Learned District Munsif has not taken note of the belated stage in which the Amendment Application was filed. The order directing to pay Rs. 1000 as costs would not compensate the serious prejudice caused to the Defendants. The Impugned Order suffers from material irregularity and is liable to be set aside.
21. For the reasons stated above, this Civil Revision Petition is allowed setting aside the order dated 2.9.2004 of the Principal District Munsif, Tirunelveli in I.A No. 1076 of 2004 in D.S No. 297 of 2002. In the circumstances of the case, there is no order as to costs. The connected C.M.P No. 2717 of 2004 is closed. Learned Principal District Munsif, Tirunelveli is directed to dispose of the Suit in O.S No. 297 of 2002 within a period of one month from the date of receipt of a copy of this order in accordance with law.