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Gobi Pillai Vs. Dr. Swamy - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1980)1MLJ387
AppellantGobi Pillai
RespondentDr. Swamy
Cases ReferredPushpamani v. Damodara Gounder and Anr. C.R.P. No.
Excerpt:
.....the expression often used that by way of amendment 'multiplicity of proceedings' can be avoided is more often invoked as an expression of convenience and in practice seldom avoided, and in turn it only results in filing of further petitions like this, and thus protract the proceedings by securing stay of suit thereby causing great injustice to other parties to the proceedings, and also stalemate an early disposal of a suit, which had come to the stage of rendering of judgment. merely because such a remedy is available, it is not to be presumed that he would file a suit in the event of failure in the present suit......and his men from interfering with his possession and for costs. in the plaint, he claimed that the suit property belonged to his father and that the plaintiff was his only son and in turn defendant is his only son. on 18th april, 1959, there was a registered partition deed between the plaintiff and the defendant and as per the partition deed, the plaintiff is entitled, during his life time, to be in possession of the property, and thereafter the defendant is to have the property absolutely. defendant was living with his family in shenoy nagar, madurai and after completing his medical studies, in 1968, he came to tirunelveli to set up his private practice and he was residing at door no. 178, in the same street in which the suit property bearing door no. 177 is situate. mainly because the.....
Judgment:
ORDER

T. Sathiadev, J.

1. The plaintiff is the petitioner, who filed I.A. No. 605 of 1979 in O.S. No. 477 of 1978 on the file of the Sub-Court, Tirunelveli, under Order 6, Rule 17 and Section 151, Civil Procedure Code, for amending- the plaint with a view to make the prayer for recovery of possession in the alternative. He filed a suit for a permanent injunction restraining the defendant and his men from interfering with his possession and for costs. In the plaint, he claimed that the suit property belonged to his father and that the plaintiff was his only son and in turn defendant is his only son. On 18th April, 1959, there was a registered partition deed between the plaintiff and the defendant and as per the partition deed, the plaintiff is entitled, during his life time, to be in possession of the property, and thereafter the defendant is to have the property absolutely. Defendant was living with his family in Shenoy Nagar, Madurai and after completing his medical studies, in 1968, he came to Tirunelveli to set up his private practice and he was residing at door No. 178, in the same street in which the suit property bearing door No. 177 is situate. Mainly because the defendant had started to interfere with the possession of the suit property by the plaintiff, the present suit had been laid.

2. This claim was refuted in the written statement by stating that pursuant to the partition deed, both door numbers 177 and 178, Vallam Thangi Pillaiyar Koil Street, Tirunelveli Town had been in exclusive possession of the defendant, and the allegation of threatened interference of the possession of the plaintiff is a patent falsehood. Even in 1968, defendant had come over to Tirunelveli and set up his clinic on 4th February, 1968 at South Car Street, Tirunelvel Town and he has been residing in the suit property and also in the adjoining door number 178 since that date, and the present suit is filed because of the wayward life of the plaintiff which was objected to by the defendant, and the plaintiff was never in possession of the property for the last eighteen years, and in any event, not after defendant came to Tirunelveli for setting up practice in 1968.

3. The suit had been taken up for trial and about 12 witnesses have been examined and evidence is closed, It is at this stage that the present application is taken out for amendment of plaint for the inclusion of an alternative prayer for relief for possession in the event of the Court coming to the conclusion that the plaintiff is not in possession of the property. The Court below rejected the application, which has resulted in the filing of this Civil Revision Petition.

4. Mr. Krishnamurthy, learned Counsel for the petitioner contends that when the amendment sought for, is only for the alternative relief of possession, which is not a new case, and when the plaintiff is not bent upon protracting the proceedings, even though amendment is sought for after evidence is recorded in the light of the several decisions of the Supreme Court, an amendment which would avoid multiplicity of proceedings, should not be rejected by a trial Court. He also states that the plaintiff is not for any new issue to be framed or for additional evidence recorded or for reopening the case, and what is now required is only the alternative case being set up without even asking for the cause of action to be changed.

5. Mr. T.R. Ramachandran, learned Counsel for the respondent contends that the relief now asked for is a new case that is set up, and right through the plaintiff had taken up the firm position that he is in exclusive possession of the property, and to deny this claim, several witnesses have been examined and the present offer made in this Court of no further evidence to be let in by the plaintiff or of his not asking for any issue to be framed, would be no relief to the respondent defendant because, in any event he has to file an additional written statement. On the aspect of possession, it may be that the plaintiff may not come forward with fresh evidence, but necessarily the defendant will be compelled to examine the necessary witnesses on this aspect depending upon the additional written statement that will have to be filed. He further contends that at this belated stage of the proceedings, after evidence is closed, an amendment of this nature, would prejudicially affect the rights of the defendant, particularly when the plaintiff cannot plead that he was not aware of such a claim which he could have made at the time when the plaint was filed.

6. In support of the claim made by Mr. Krishnamurthy, that at any stage of the proceedings, it is open to the Court to allow the amendment of the plaint, he relies upon the following decisions.

7. In P.H. Patil v. K.S. Patil 1957 SCJ 371 : 1957 SCR 5(sic)5 : AIR 19(sic)7 SC 363, it was held that two conditions have to be satisfied when Order 6, Rule 17, Civil Procedure Code, is invoked, they being that it should not work injustice to the other side and it must be necessary for the purpose of determining the real question in controversy between the parties. It was also held therein that the ultimate test that remains to be made is whether the amendment be allowed without injustice to the other side. It was a case in which the plaintiff applied for amendment when the matter was pending in the Supreme Court raising- an alternative plea of damage for breach of contract for non-delivery of goods. It was held that though the objections raised have considerable force, but after giving due weight to them, the Court was of the opinion that it was a fit case in which amendment ought to be allowed, because all the allegations which are necessary for sustaining the claim for damages for breach of contract, are already in the plaint, and what is lacking is only the allegation that the plaintiff is in the alternative entitled to claim damages for breach of contract by the defendant in not delivering the goods.

8. In Nochalbhai Vallabhai v. Jaswantlal : AIR1966SC997 , the amendment was asked for in the trial Court to correct a mistake which had crept in by inadvertence, and it was held that the object of the rule for allowing amendments to the plaint was to avoid multiplicity of suits, and it was a proper case in which the Court should allow it, because otherwise the amendment if refused would necessitate the plaintiff to file another suit. It was also held that the fact that a fresh suit on the amended claim would be barred by limitation is the only factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the Court to order it, if that is required in the interests of justice.

9. In Ganesh Trading Co. v. Moji Ram : [1978]2SCR614 , it was held that procedural law is intended to facilitate and not to obstruct the course of substantive justice and even if a party or its counsel is inefficient in setting out its case initially, the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side for its omissions. The Court can refuse an amendment if it is sought for altering the cause of action or for introducing indirectly an entirely new or inconsistent cause of action virtually resulting in substitution of a new plaint, and which may in turn take away any right which might have accrued in favour of the defendant due to lapse of time. But mere failure to set out even an essential fact does not by itself constitute a new cause of action.

10. In Ishwardas v. The Stale of Madhya Pradesh (1979)1SCJ 5(sic)2 : AIR 1979 SC 551, it has been held that one of the circumstances which will be taken into consideration before amendment is granted, is delay in making the application, and if it is made at the appellate stage, the reason why it was not sought in the trial Court, can be gone into, and if the necessary material is already available, then the amendment may be readily granted than otherwise. So far as an appellate Court is concerned, there is no legal impediment or bar in enabling a party to raise a new plea.

11. The two other decisions he relied upon are P.K. Thimmaiya Gounder v. Krishnamma Naidu (1976) 89 L W. 604, wherein it was held that the alternative relief of possession prayed for by way of amendment of plaint, does not result in altering the frame of suit and at the stage of amendment petition, whether the plaintiff was conscious of this factor or not, if gone into, would result in pre-judging the issue, and therefore the truth or falsehood of the averment need! not be gone into at the stage of allowing the petition to amend.

12. In Md. Salih Sahib v. T.C. Adam : AIR1971Mad358 , it is held 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 and 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 interests of justice to grant it.

13. It will thus be seen that what should be taken into account is whether the amendment sought for would result in interests of justice being rendered, when a party is fully aware of the nature of the plea raised and the factual aspect of the claim made in the plaint. Apart from the definite case pleaded in the plaint of the plaintiff being in possession of the property, even in the affidavit filed in support of the present application, the plaintiff has stated 'My definite case is that I am in exclusive possession of the suit property. The respondent/defendant disputes the same'. When the plaintiff has been so categorical on the plea raised and has confined his relief only for injunction, after the evidence is recorded, he is now asking for an alternative prayer to be introduced on the ground that 'if for any reason this Honourable Court comes to the conclusion that I am not in possession of the suit properties, I am entitled to recover the suit property from the respondent/defendant.' Even in the proposed amendment, he claims that he would be entitled to an alternative relief, if for any reason the Court has to come to the conclusion that he is not in exclusive possession. Undoubtedly this is a new case set up in a suit filed for injunction, wherein till evidence is closed, he had taken up the firm stand that he is in possession of the property. The decisions relied upon by the counsel for the petitioner have not gone to the extent of taking away the discretion in the Court to decide whether in the interests of justice an amendment should be allowed, and held that it has to function at the whims and fancies of the plaintiff who would choose his own time to ask for amendment even though he had been fully aware of what he should plead for. Having filed a suit for injunction and rested his entire case on the fact that he has been in possession of the property, should a Court allow such a plaintiff to change his case at whatever time he may choose irrespective of the consequences it would have on the defendant and also in the Court concluding the suit on the evidence already recorded? If the approach is to be made by Courts of what would be relevant it is only the case of the plaintiff, and it should close its eyes on the case of the defendant, but should only compensate the defendant by way of costs; and further the Court is to subject itself to protraction of proceedings, then there could be no question of judicial discretion being exercised to advance the course of justice. 'Ends of Justice' or 'in the interests of justice', if to be applied, the Court has to necessarily take into account the manner in which the plaint had been filed and the time when the plaintiff seeks for amendment of the plaint. Merely because it has been held that an amendment can be sought for even in an appellate Court or even when the matter is heard in the Supreme Court, as held in L.J. Leach & Co. Ltd. v. Jardine Skinner & Co. : [1957]1SCR438 , it would not mean that Courts are to encourage a recalcitrant and scheming plaintiff to ask for amendment of plaint, even though he had known the truthful position at the time of filing the plaint and files the amendment petition after knowing the entirety of the case of the defendant. The term 'interests of justice' will have to necessarily take within 'its' fold the interests of the defendant also.

14. In this case, plaintiff cannot plead that even while filing the suit and after reading the written statement and at a time when issues were framed, he was not aware of what he should have asked for, if he had not been in possession of the property. He had examined his witnesses and cross-examined the witnesses produced by the defendant. Having been fully aware of what he could have pleaded, he has to take the consequences of what he had pleaded in the present suit, and if under law he is entitled to any other relief, it is always open to him to ask for it by filing appropriate proceedings.

15. When the plaintiff had knowingly and designedly chosen to confine his relief on the basis of certain facts and had participated in a suit which has come to the stage of closing of evidence, it is not necessary for a Court to take upon itself the task of finding out whether such a plaintiff should be helped or assisted in avoiding his filing another suit for the other relief which he may now seek for by way of amendment. He may or may not ask for it realising the happenings in the present proceedings. The expression often used that by way of amendment 'multiplicity of proceedings' can be avoided is more often invoked as an expression of convenience and in practice seldom avoided, and in turn it only results in filing of further petitions like this, and thus protract the proceedings by securing stay of suit thereby causing great injustice to other parties to the proceedings, and also stalemate an early disposal of a suit, which had come to the stage of rendering of judgment. The decisions relied upon by the counsel for the petitioner have repeatedly stressed upon the fact that in allowing the amendment, the Court has to take into account the interests of justice and to what extent it can avoid multiplicity of proceedings. No doubt if the suit for injunction is dismissed, the plaintiff herein may file a suit for possession. Merely because such a remedy is available, it is not to be presumed that he would file a suit in the event of failure in the present suit. He may realise the futility of going back to Court and hence such aspects may not even be required to be considered. In this case it is quite obvious that the present attempt is only to protract the proceedings and delay the disposal of the suit. An early decision in a suit not hastily gone through, would result in 'ends of justice' or 'interests of justice' rather than protracted proceedings which are taken up in installments, calling for further written statements to be filed and further evidence to be produced in stages by contesting parties. It may be that the plaintiff may not choose to ask for further evidence, but that would not mean that the defendant need not file an additional written statement or produce any further evidence in support of the additional written statement. Mr. T.R. Ramachandran, refers to the decision in Pushpathal alias Pushpamani v. Damodara Gounder and Anr. C.R.P. No. 2767 of 1976, in which the relief of possession in a suit filed for declaration and injunction was asked for as an alternative relief, and this Court held that when the petitioner had not even stated as to the date on which the second respondent therein had forcefully trespassed into the property, an amendment cannot be allowed. The plaintiff having designedly, wantonly and knowingly asked for the relief of injunction and the present amendment being sought for at this belated stage of the suit and just before arguments are heard, if allowed, would not be in the interests of justice. For the reasons above stated this civil revision petition is dismissed. No. costs.


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