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Md. Salih Sahib Vs. T.C. Adam Sahib - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2879 of 1974 against order of Dist. Munsiff, Chingleput in I.A. No. 101 of 1974
Judge
Reported inAIR1977Mad368
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 17
AppellantMd. Salih Sahib
RespondentT.C. Adam Sahib
Cases ReferredA. K. Gupta and Sons v. Damodar Valley Corporation
Excerpt:
.....17 of code of civil procedure, 1908 - petition against dismissing application for amendment of plaint - rule 17 provides amendment of pleadings may be permitted by court at any stage and in any manner that court may deem just - amendment would not import into suit new cause of action - district munsiff court failed to exercise jurisdiction - order passed by district munsiff liable to be set aside - petition allowed. - - this rule easily falls into two distinct parts, in terms of language as well as of subject-matter. 17, as analysed above, it seems to me to be clear that once the court is satisfied that the amendment asked for the purposes of proposing or determining the real questions in controversy between the parties, there is really no discretion at all for the court in the..........and 60 cents in panaiyur village, madurantakam taluk. hereafter i shall refer to this land as the suit land. the defendant owns the land bearing s. no. 20. this land lies immediately to the north of the suit land. a ridge had always separated, and still separates, the two lands, s. no. 21 and s. no. 20. the plaintiff sued the defendant, complaining that on 2-7-1971, the defendant high-handedly trespassed on the ridge. according to the averment in the plaint the defendant's trespass consisted in simply reducing the width of the ridge. the original width of the ridge, it was stated, was 1 1/2 ft. the complaint was that this was reduced by the defendant to 1/2 ft. the plaintiff claimed that he was entitled to a ridge with a width of 1 1/2ft. the suit was accordingly filed for the grant of.....
Judgment:
ORDER

1. One Salih Sahib, whom I shall hereafter refer to as the plaintiff, filed a suit against one Adam Sahib, whom I shall call the defendant, in the District Munsif Court, Chingleput, in the following circumstances. The plaintiff is the owner of a piece of land bearing S. No. 21 of an extent of 4 acres and 60 cents in Panaiyur village, Madurantakam taluk. Hereafter I shall refer to this land as the suit land. The defendant owns the land bearing S. No. 20. This land lies immediately to the north of the suit land. A ridge had always separated, and still separates, the two lands, S. No. 21 and S. No. 20. The plaintiff sued the defendant, complaining that on 2-7-1971, the defendant high-handedly trespassed on the ridge. According to the averment in the plaint the defendant's trespass consisted in simply reducing the width of the ridge. The original width of the ridge, it was stated, was 1 1/2 ft. The complaint was that this was reduced by the defendant to 1/2 ft. The plaintiff claimed that he was entitled to a ridge with a width of 1 1/2ft. The suit was accordingly filed for the grant of a mandatory injunction directing the defendant to restore the ridge to its original condition with a width of 1 1/2 ft. and for ancillary reliefs. The plaint contained a schedule describing the ridge.

2. The suit was filed on 4-7-1971. Subsequently, in I. A. 216 of 1973, an Advocate-Commissioner was appointed by the learned District Munsif to go into the exact portion of the ridge. The Commissioner inspected the suit land, the defendant's land the ridge lying in between. He procured the assistance of a qualified Surveyor for taking measurements. He filed more than one report before the court. In his second report, the Commissioner, inter alia, observed that there were indications of an alternation in the situation of the ridge from its original position.

3. On the basis of what the Commissioner stated in his report, the plaintiff filed I. A. 101 of 1974 under O. 6, R. 17, C.P.C. for permitting the petitioner to amend the plaint by adding one more prayer in the suit, namely, a prayer for possession of a strip of land of a width of 3 links and a length of 1728 links along the northern border of S. No. 21. Consequential amendments were also desired to be introduced in the schedule attached to the plaint.

4. The plaintiff's application for amendment of the plaint was resisted by the defendant. It was pointed out that while the relief claimed in the suit as originally laid was for a mandatory injunction to restore the ridge to its original position, the proposed amendment introduced a claim for relief for recovery of possession of land over the entire length of the ridge, which was a wholly new claim. According to the defendant, the proposed amendment tended to change the very character of the suit by introducing a new cause of action and a new claim for relief.

5. The learned District Munsif upheld the defendant's objection and dismissed the plaintiff's application for amendment. The plaintiff now comes before this court in revision, and pleads that the learned District Munsif ought to have permitted the amendment, in the exercise of his discretion.

6. Order VI, C.P.C. deals with pleadings generally. Rule 17 of that Order defines the powers of the Court in the matter of amendment of pleadings. This rule easily falls into two distinct parts, in terms of language as well as of subject-matter. The rule, by its first limb, confers a discretion on the court to permit any party to a suit to amend his pleadings in such manner and on such terms as the court may deem just. The language of the rule, in this part, is that which the Legislature usually employs for conferring purely discretionary powers. The expression used is 'the court may..........' The discretion as enacted in this part is, however, widely worded. The rule provides that amendment of the pleadings may be permitted by the court at any stage and in any manner that the court may deem just. In granting the amendment, the court may put the parties on any terms that it may deem just.

The second limb of R. 17 is, in terms, mandatory. Mark the use of the word 'shall' in this part of the rule, which provides that the court shall make or permit all amendments to the pleadings as may be necessary for the purpose of determining the real question in controversy between the parties. On the language of R. 17, as analysed above, it seems to me to be clear that once the court is satisfied that the amendment asked for the purposes of proposing or determining the real questions in controversy between the parties, there is really no discretion at all for the court in the matter, and such amendments must be granted as of course. But the rule itself indicates very plainly that amendments of pleadings which may be found necessary for bringing out the real question in controversy are not the only kind of amendments which the Code contemplates. There may be amendments of other sorts which parties might desire to make in their pleadings. Rule 17 recognises the scope for all these amendments of the other sort, and leaves them to be dealt with by the court at its absolute discretion. The only indication in the rule as to how the court's discretion is to be exercised is found in the use of the words 'in such manner and on such terms as may be just'.

7. Although O. VI, R. 17, in terms, bears this two-fold interpretation and analysis, one part of the rule containing a mandatory provision and the other part a discretionary power, reported cases have tended to construe the provisions of the rule, as a whole, as conferring on the courts a mere discretion. However, in spelling out the discretion courts have allowed themselves a wide berth. Recent illustrations of how the courts have understood the scope of their power under this rule and how liberal they have tended to become in exercising their discretion are to be found in Leach and Co. v. Jardine Skinner and Co., : [1957]1SCR438 ; Pirgonda Patil v. Shidgonda Patil, : [1957]1SCR595 .

8. Mr. Lakshminarayana Reddi, appearing for the defendant, contended before me that the amendment asked for by the plaintiff was rightly rejected by the trial court. To have allowed the amendment, according to him, would have altered the complexion of the suit. I am, however, unable to accept this argument as providing the true test for refusing an amendment, under O. VI, R. 17. The case reported in Leach and Co. v. Jardine Skinner and Co., : [1957]1SCR438 is itself an illustration to the contrary. In that case, the plaintiffs sued the defendants for damages for conversion of some imported goods, which according to the plaintiffs' pleadings, were imported by the defendants for and on behalf of the plaintiffs. A learned single Judge of the Bombay High Court decreed the suit, accepting the evidence adduced by the plaintiffs, and recording a finding to the effect that the defendants had acted in the suit transaction as agents of the plaintiffs. A Division Bench of the Bombay High Court, however, reversed this finding in appeal, holding that the claim for damages on the basis of conversion was misconceived. The plaintiffs there upon appealed to the Supreme Court.

At the hearing of the appeal, the Supreme Court was apparently inclined to take the same view as the Division Bench of the Bombay High Court on the jural relationship between the parties. At that state, the plaintiffs applied to the Supreme Court for amendment of their pleadings, this time founding their claim for relief on a different basis, namely that the defendants had committed a breach of contract as regular sellers of the imported goods to the plaintiffs. The court did so, all the while agreeing with the defendants' contention that the amendment to the plaint introduced quite a new cause of action. The court explained the position by observing that the amendment sought for by the plaintiffs was not wholly foreign to the subject-matter of the suit, and, further, that the justice of the case required that the amendment should be granted.

9. I derive from the above case the principle that amendment to the pleadings cannot be turned down by courts merely on the score that they introduce an inconsistent plea or a new cause of action. The true test is whether the amendment is foreign to the subject-matter of the suit, and if not, whether it would be in the interest of justice to grant it.

10. Mr. Lakshminarayana Reddi then pointed out an apparent incongruity in the plaintiff's asking for relief for possession of a strip of land running contiguous to the present ridge without altering the original pleadings in the plaint, which was to the effect that the plaintiff had been in possession of the entirety of S. No. 21, to the south of the ridge for upwards of 60 years. According to the learned counsel, the two pleas cannot co-exist. It seems to me, however, that this argument really touches the merits of the claim which is sought to be put forward in the proposed amendment. It cannot in my view, be regarded as a pertinent objection to the grant of the amendment itself. How far the plaintiff would be in a position to succeed in the case which he now seeks to set up in the amendment would have to be decided at the trial. It cannot be raised as a contention at this stage for considering whether the amendment itself, such as it is, is or is not to be permitted.

11. Mr. Lakshminarayana Reddi put forward another contention based on the plaintiff's original pleading that the parties were in possession of their respective lands for a period of 60 years. Learned counsel submitted that if, as the plaintiff alleged, the parties were in possession for such a long time of their respective lands, it would impliedly follow that the plaintiff's amended claim for recovery of possession of a portion in the occupation of the defendant, would be barred by limitation. This contention also seems to me to be based on a misconception. Para. 5 of the plaint makes mention of the cause of action for the suit as having arisen on 2-7-1971. The plaintiff does not desire any amendment of this paragraph. This means that, according to the plaintiff, 2-7-1971 not only marks the date when the defendant had reduced the width of the ridge between his land and the plaintiff's land, but that very date also marks the day on which, according to the plaintiff, the defendant had trespassed into the plaintiff's land upto a width of 3 links on the northern border.

On this reading of the cause of action paragraph, no question at all might arise of the relief for possession being ex facie time barred. Even otherwise, assuming that the amended prayer for possession would be barred by limitation, that would not really touch the discretion of the court, in the matter of permitting amendment of the plaint under O. VI, R. 17 Vide the observations of the Supreme Court in Leach and Co. v. Jardine Skinner and Co., : [1957]1SCR438 and of the Privy Council in Charandas v. Amir Khan, 39 MLJ 195 : AIR 1921 SC 50, extracted and quoted by the Supreme Court at p. 320. Mr. Lakshminarayana Reddi cited before me the decision of the Supreme Court in A. K. Gupta and Sons v. Damodar Valley Corporation, : [1966]1SCR796 , but the observations cited therefrom by the learned counsel do not, in my opinion, strike a different note. Indeed, as far as my study goes, courts have seldom regarded the factor of limitation as a curb on their power to grant amendments to the pleadings. It is just another consideration, like any other to which they may have proper regard, before making up their minds one way or the other in the matter of exercise of their discretion.

12. I do not, therefore, see any valid objection against granting the plaintiff's amendments. All he asks for now is an additional relief by way of possession of a narrow strips of territory at the northern extremity of his land. This is not wholly alien to the relief for which he originally instituted the suit. It concerned, in the first instance, with the very same part of the suit land, although the pertinent relief then asked for was for a mandatory injunction to restore the northern ridge to its accustomed width. In a way, both under the original plaint and under the proposed amendment, the subject-matter of the controversy is the same, to wit, the border between the plaintiff's land and the defendant's. In these events, to deny the plaintiff the amendment he now seeks is to drive him to a separate suit for possession. That would only involve the parties in a multiplicity of proceedings, instead of the solitary one in which they are at present engaged with reference to the suit land.

13. The learned District Munsif had refused the amendment on the one and only ground that it would import into the suit a new cause of action. There is no doubt it does. That, however, can hardly be a ground for rejecting the amendment, as I have endeavoured to show, both on the authorities and on the language of O. VI, R. 17. The decision of the learned District Munsif is based on a misunderstanding of the true function of amendment of pleadings under our scheme of civil procedure and on a poor view of the scope of the court's discretion in the matter. The result is that there has been a failure on his part to exercise the jurisdiction vested in him under the law and not a mere error in its exercise. His order is, accordingly, set aside, and I. A. 101 of 1974 is allowed. He will grant adequate time to the plaintiff to carry out the amendment in the plaint. He also grant leave to the defendant to file an additional written statement.

14. In the result, the civil revision petition is allowed. No order as to costs.

15. Revision petition allowed.


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