THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
C.R.P.(PD) No.3006 of 2010
W/o Ettiappa Goundar
S/o Ettiappa Goundar
S/o Ettiappa Goundar .. Petitioners
1. Ezhumalai Goundar
S/o Ettiappa Goundar
S/o Venugopal .. Respondents
Memorandum of Grounds of Civil Revision Petition under Article 227 of The Constitution of India against the fair and decretal order dated 05.02.2010 passed in I.A.No.264 of 2009 in O.S.No.31 of 2007 on the file of the Sub Court, Madurantagam. For Petitioners :: Mr.K.Govi Ganesan
For Respondents :: Mr.J.Sudhakaran for
Mr.M.Arunachalam for R1
The question raised in this civil revision petition is as to whether under Order VI, Rule 17 of the Civil Procedure Code, amendment of the plaint in a partition suit can be allowed at the instance of the defendants?
2. The said question has been referred to for a decision by the Division Bench by The Hon’ble Mr.Justice M.Duraiswamy vide order dated 16.3.2011 and the reference necessitated in view of the conflicting views given by two learned Judges of this Court in the decisions in Ramasamy and another v. P.Marappan and others, 2005 (3) MLJ 663 and in A.A.Ganga and another v. A.R.Usha and others, 2010 (4) CTC 331.
3. In a suit for partition filed by the plaintiffs in O.S.No.31 of 2007 on the file of the Subordinate Court, Madurantagam, the defendants, namely the revision petitioners, filed I.A.No.264 of 2009 under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the plaint on the ground that some of the joint family properties were left out by the plaintiffs for partition. After hearing both sides, the learned trial Judge dismissed the application holding that the defendants cannot seek for amendment of the plaint. The said order is put in issue in this civil revision petition.
4. In the judgment in Ramasamy v. P.Marappan, 2005 (3) MLJ 663, the learned Judge R.Banumathi, J. held that under Order VI, Rule 17 of the Civil Procedure Code, a party can seek to amend his pleadings in plaint or written statement, but a party cannot seek to amend the pleadings of his opponent. So far as the amendment of plaint is concerned, the learned Judge has held that as the plaintiff is the dominant litus and he cannot be compelled to include other items of properties in the plaint schedule in a partition suit. The learned Judge was of the view that if the petition mentioned properties which are sought to be included in the plaint schedule are proved to be joint family properties, the suit would only be bad for partial partition. Holding so, the learned Judge upheld the order of the trial Court in dismissing the application to amend the plaint.
5. Subsequently, when the very same question came up for consideration before R.S.Ramanathan, J., the learned Judge, after referring to the judgment in Ramasamy case, held that such an application for amendment in a partition suit at the instance of the defendant is maintainable, since, in a suit for partition, the plaintiff is defendant and the defendant is plaintiff, and therefore the defendant is entitled to include the property left out by the plaintiff so as to have a complete adjudication and to avoid further litigation.
6. Before we consider the issue raised in this civil revision petition, the relevant provision of Civil Procedure Code, viz., Order VI, Rule 17 requires a reference and the same reads thus:
17. Amendment of pleadings. The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
7. The scope of Order VI, Rule 17 of the Civil Procedure Code came up for consideration before the Apex Court and the Apex Court ultimately held as follows in the following judgments.
8. In the judgment in Revajeetu Builders and Developers v. Narayanasamy and sons and others, (2009) 10 SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the application for amendment: (i) whether the amendment sought is imperative for proper and effective adjudication of the case;
(ii) whether the application for amendment is bona fide or mala fide;
(iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(iv) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and
(vi) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by the law of limitation on the date of application.
In fact, the Apex Court held that the Courts have very wide discretion in the matter of amendment of pleadings, but Court’s powers must be exercised judiciously and with great care. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.
9. In Vidyabai and others v. Padmalatha and another, (2009) 2 SCC 409, the Apex Court held that it is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code would restrict the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.
10. In B.K.Narayana Pillai v. Parameswaran Pillai, (2000) 1 SCC 712, the Apex Court held as follows:
3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the Courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation.
11. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (died) by L.Rs., (2008) 8 SCC 511, the Apex Court held thus:
In so far as the principles which govern the question of granting or disallowing Amendments under Order 6, Rule 17, C.P.C. (as it stood at the relevant time) are concerned, these are well settled. Order 6, Rule 17, C.P.C., postulates amendment of pleadings at any stage of the proceedings. In Piragonda Hongonda Patil v. Kalgonda Shidgonda Patil, which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real question in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.
12. A learned Judge of this Court in Vaidinatha Chettiar and others v. Thirumalai Reddyar, AIR 1934 Madras 220 held that where the Court compels the plaintiff to amend the plaint, only the plaintiff can complain; and it is not open to the defendant to complain that the Court has no jurisdiction to compel the plaintiff to do so.
13. In T.P.Palaniswami and another v. Deivanaiammal and others, 96 L.W. 560, a learned Judge of this Court has held as follows:
3. Negligence or carelessness, or belatedness, need not be put against a party seeking amendment if the facts and circumstance of the case warrant the allowing of the amendment for the purpose of adjudicating the controversy between the parties comprehensively in the same lis.
4. It is well settled that while deciding an application for amendment, the court is not supposed to go into the merits and demerits of the amendment and express an opinion one way or the other. That could be the subject matter of scrutiny after the amendment is allowed, applying the well accepted principles therefor, and after the defendant files the additional written statement and after appropriate additional issue is framed and that issue is tried after the parties placed the requisite evidence therefor and submitted arguments in support of their respective cases.
7. Under Order 6, Rule 17 of the Code, the court may, at any stage of the proceedings, allow either party to amend his pleadings and all such amendments shall be made as may be necessary for the purposes of determining the real questions in controversy between the parties. In a suit for partition, the quantum of the estate is a question in issue and if there had been inadvertence or omission to include a particular item, the court is duty bound to allow the amendment and while doing so, it will be inappropriate to adjudicate upon the questions which would arise on the amendment being allowed and that stage will come only later, after the amendment is allowed, issues are framed and the parties placed their evidence and made their submissions through arguments.
14. In P.Arumugham and another v. P.Balasubramaniam and others, (2008) 7 MLJ 1210, a learned Judge of this Court has held as follows:
Merely because the plaintiff owing to some motive or as per his own stand did not include certain items in the suit property, it would not lead to the conclusion that the suit is bad for partial partition. There are instances where the parties would deliberately leave certain items of properties, without any valid reasons for getting it divided at once, but to get them divided at a later date at their own whims and fancies and in such a case, the Court could hold that the suit is bad for partial partition. Even in such cases, the Courts have got the power to direct that the left out items also should be included in the partition, once there are evidence available on record that those items are co-parcenary properties.
15. Keeping the above principles in mind, the question raised in this civil revision petition is to be considered. Though a plain reading of Order VI, Rule 17 of the Code of Civil Procedure would appear that only a party to the plaint or written statement, as the case may be, could seek for amendment on the ground that such a party would be the dominant litus, it will be only a general rule in respect of all suits barring a suit for partition. In terms of Order VI, Rule 17, only the respective party to the pleadings could seek for amendment, as they are referred to as the plaintiff or defendant, as the case may be. In a partition suit, both the plaintiff and defendant are considered to be on the same pedestal to seek for a decree. This distinction is made by Courts. The application of Order VI, Rule 17 insofar as partition suits shall be considered keeping the above in mind.
16. While an amendment is sought, the Court has to see whether such amendment is imperative for proper and effective adjudication of the case, the amendment is bona fide or mala fide and in case such amendment is ordered, whether any prejudice would be caused to the other party which cannot be ultimately compensated in terms of money. The Court must also consider as to whether in the event the amendment is refused, it may lead to injustice or multiple litigation. One more principle to be followed while considering the request for amendment is as to whether it would change the character or nature of the case.
17. In a suit for partition, in the event the plaintiff has included only certain properties as if they are available for partition and leave some other properties which are also available for partition, the request of the defendant in such event to include the left out properties also in the plaint schedule would not in any way amount to altering or changing the nature or character of the suit, as such an amendment is also necessary for an effective adjudication of the case and to avoid multiplicity of proceedings.
18. It is argued that in the event some of the properties which are available for partition are not included in the plaint schedule, the decree would be invalid on the ground of partial partition. However, it must be kept in mind that in such event, a further suit has to be filed either at the instance of the plaintiff or defendant to include all the properties which are available for partition. In order to avoid such a situation, in partition suit, the Court could certainly entertain an application for amendment to include the properties which are left out and it cannot be said that in the event the amendment petition is dismissed, the decree would be invalid for partial partition. Hence, we hold that in a suit for partition, application for amendment at the instance of either party to the suit is maintainable under Order VI, Rule 17 of the Civil Procedure Code. We may also refer to the judgment of the Apex Court in Shub Karan Bubna alias Shub Karan Prasad Bubna v. Sita Saran Bubna and others, 2009 (12) Scale 259, wherein the Apex Court has observed that a decree in partition suit enures to the benefit of all the co-owners and it is sometimes said that there is really no judgment-debtor in a partition suit.
19. However, in an application for amendment, the Court has to prima facie satisfy itself as to whether the properties are available for partition or not, as a detailed adjudication on the claim is improper. If there is a dispute over the inclusion of properties by the plaintiff contending that those properties are not available for partition, the Court is certainly entitled to reject the application for amendment on that ground. In such event, the only course open to the defendant is to file a suit for partition by including those properties. As we have been called upon to answer the question as to whether the application under Order VI, Rule 17 of the Civil Procedure Code seeking for amendment of the schedule to the plaint in a partition suit at the instance of the defendant is maintainable or not, we answer the said issue by holding that while considering such an application, it is for the Court to decide on the facts of each case. The reference is answered accordingly. Registry is directed to list the civil revision petition before the concerned learned Judge.