Disposed

Palanisamy v. Krishnan

Madras HC30 Jul 2019CRP/2526/2014

Case brief

AI extract

What is this about?

The High Court disposed of a Civil Revision Petition challenging an order allowing a plaint amendment during an appeal. The court directed the subordinate court to examine if the amendment introduced a new claim, alter property description, or deny cross-examination rights before passing the final judgment in the underlying appeal.

What did the court decide?

The lower appellate court is directed to decide specific issues regarding the amendment's effect and pass the final appeal judgment within six months without passing a separate order on the revision p

Palanisamy Vs Krishnan — Contract and Commercial Disputes | Madras HC (2019)

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CRP (NPD) No.2526 of 2014

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 30.07.2019

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CORAM

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THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE

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CRP (NPD)No.2526 of 2014
and
M.P. No.1 of 2014
Palanisamy ... Petitioner
Vs
Krishnan ... Respondent

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Civil Revision Petition filed under Section 115 of the

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Constitution of India to set aside the order and decretal order dated 19.02.2014 made in I.A. No.123 of 2013 in A.S. No.50 of 2012 on the file of the Principal District Judge, Villupuram and allow the above CRP.

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For Petitioner : Dr.C. Ravichandran For Respondent : Mr.S. Sounthar

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ORDER

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The instant Civil Revision Petition has been filed challenging the order dated 19.02.2014 passed by the Principal District Judge, Villupuram in I.A. No.123 of 2013 in A.S. No.550 of 2012.

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http://www.judis.nic.in

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CRP (NPD) No.2526 of 2014

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Brief facts leading to the filing of the instant Civil Revision Petition under Section 115 of the CPC

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The petitioner is the defendant in the suit O.S.No.35 of 2004 filed by the respondent /plaintiff . The respondent filed the suit before the Sub Court, Kallakurichi for specific performance of an agreement of sale dated 05.12.2001 entered into with the petitioner with the respondent. The said suit was decreed in favour of the respondent in O.S. No.35 of 2004 and specific performance of the agreement of the sale was granted in favour of the respondent.

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Aggrieved by the judgment and decree dated 20.08.2009 passed in O.S. No.35 of 2004, the petitioner preferred an appeal in A.S. No.50 of 2012 before the Principal District Court, Villupuram.

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During the pendency of A.S. No.50 of 2012, the respondent, who is the plaintiff in the suit and the respondent in the appeal, filed I.A. No.123 of 2013 under Order 6 Rule 17 CPC to amend the plaint. He has sought for an amendment of the schedule, the details of the amendment sought for by the respondent in I.A. No.123 of 2013 are as follows :

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CRP (NPD) No.2526 of 2014

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*Sl.* *No.*	*AGREEMENT OF SALE*	*PLAINT AND DECREE*	*AMENDMENT* *PETITION*
1	59/8 0.72brz;L	59/8 0.72brz;L
2	59/4 0.30y; 0/10brz;L	59/4 0.30y; 0/10brz;L	Adding boundaries details below “A”
3	59/3 0.21brz;L	59/3 0.21brz;L
4	59/6 0.10brz;L	59/6 0.10brz;L
5	58/3 0.54brz;L	58/3 0.54brz;L
6	60/16 0.20brz;L	60/16 0.20brz;L
7	60/19 0.18brz;L	60/19 0.18brz;L
8	54/1 17.80y;6.90brz;L	54/1 17.80y;6.90brz;L	Altering the Survey No.54/1, as 554/1 and adding boundaries details below “B”
9	59/7 0.58y;0.23brz;L	19/7 0.58y;0.23brz;L	Altering 19/7 as 59/7 and adding boundaries details below “C”
10	vz;/59/2, 0.13 brz;L	vz;/59/2, 0.13 brz;L
11	vz;/59/5, 0.59 brz;L	vz;/59/5, 0.59 brz;L
12	vz;/59/1, 0.26 brz;L	vz;/59/1, 0.26 brz;L
13	60/15 0.44 brz;L	60/15 0.44 brz;L
14	60/17 0.18 brz;L	60/17 0.18 brz;L
15	61/ 6.24y; Vf;fhl;2.00	61/ 6.24y;2.00Vf;fh;	Adding Boundaries details below “D”
Mf ;; ; ; ; ; ;; jz;P; ;;; ;P; [; :; ;;; ;;	12/78 Vf;fUk; rh;nt ; ; ; ;; ;zPh; tha;f;fhy; jz;zPh; [; :; ;;; ;;	;; ; 54-1 y; cs;s fpzW; ;; ;P; ;;; ;P; gha[k; khK:y; tha;f;fhy; ;;	;; ; ; ; k; if fpzw;Wj; ;P; ;;; ;P; [; :; ;;; ghrd ghj;jpak;

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khK:y; rfy ghj;jpak; tHpjlk; cs;gl

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Amendment details

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(“A”) brhj;J tpguj;jpy; 2tJ ,dr; brhj;jpw;f;F fPnH brf;Fge;jp: bghd;Drhkp Kjypahh; ghfj;jpw;F (fpHf;F) Re;jhpak;khs; epyj;jpw;Fk;

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CRP (NPD) No.2526 of 2014

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(bjw;F) Fd;D ehaf;fh; epyj;jpw;Fk; (nkw;F) gpujpthjp epyj;jpw;F (tlf;F) vd nrh;f;ft[k;/

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(“B”) 8tJ ,dr;brhj;J m/g[/rh;nt 54-1 vd;wpUg;gij m/g[/rh;nt 554-1 vd jpUj;jt[k;. 8tJ ,dr;brhj;jpw;F fPnH. rf;Fge;jp: uhkrhkpg;gps;is epyj;jpw;F (bjw;F) rh;nt 60-15 epyj;Jf;Fk; (nkw;F) ntyha[j ehaf;fh; epyj;jpw;Fk; (tlf;F) m';fKj;J epyj;jpw;Fk; (fpHf;F) vd nrh;f;ft[k;/

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(“C”) 9tJ ,dr; brhj;J m/g[/rh;nt 19-7 vd;wpUg;gij m/g[/rh;nt 59-7 vd jpUj;jt[k;. 9tJ ,dr;brhj;jpw;F fPnH. rf;Fge;j: bghd;dd; Kjypahh; epyj;jpw;F (bjw;F) Re;jhpak;khs; epyj;jpw;F (tlf;F) tujd; epyj;jpw;F (fpHf;F) jhjd; ehaf;fh; tifawh epyj;jpw;Fk; (nkw;F) vd nrh;f;ft[k;/

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(“D”) 15tJ ,dr; brhj;jpw;F fPnH. rf;Fge;jp: jhpR epyj;jpw;Fk; (tlf;F) nrhiyak;khs; epyj;jpw;F (nkw;F) rh;nt 554-1 epyj;jpw;F (fpHf;F) Xilf;F (bjw;F) vd nrh;f;ft[k;/

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brhj;J tpguj;jpy; 18tJ thpapy; rh;nt 54-1y; vd;wpUg;gij rh;nt 554-1y; vd jpUj;jt[k;/

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http://www.judis.nic.in

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CRP (NPD) No.2526 of 2014

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As seen from the affidavit filed in support of I.A. No.123 of 2013, the respondent / plaintiff has sated that it was brought to his notice that the boundaries were not mentioned earlier in the plaint schedule in respect of suit items Nos.2, 8, 9 and 15 and therefore, in the event of execution of the sale deed and while taking delivery of possession of the properties there will be difficulty in identification of the properties. In such circumstances, application viz., I.A. No.123 of 2013 in A.S. No.50 of 2012 was filed by the respondent / plaintiff.

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A counter affidavit has also been filed by the petitioner / appellant / defendant in I.A. No.123 of 2013 denying the allegations contained in the affidavit filed in support of I.A. No.123 of 2013. According to him, as seen from the counter affidavit, the boundaries stated in the amendment are wrong and false. According to him, by virtue of the proposed amendment, the respondent is trying to introduce a new claim. Further, it is stated that Survey Nos. of the suit Items Nos. 8, 9 were described in the original plaint as 54/1 and 19/7. Now the respondent / appellant seeks to amend the schedule by incorporating Survey Nos. as 554/1 and 59/7 instead of 54/1 and 19/7 respectively. Further, it is stated in the counter that all 15 items of the properties, as per the 5/11

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http://www.judis.nic.in

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CRP (NPD) No.2526 of 2014

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agreement of sale do not contain boundaries, whereas the respondent / appellant is now trying to incorporate the boundaries in the suit schedule properties which is not correct and it is false. The petitioner has also denied the allegation of the respondent that the alleged mistakes have crept in the plaint only on account of inadvertence and due to typographical error with regard to item

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No.9.

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By order dated 19.02.2014, the Court below allowed I.A. No.123 of 2013 filed by the respondent and the amendment application was allowed as prayed for by the respondent. Aggrieved by the order dated 19.02.2014, the instant Civil Revision Petition

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has been filed under Section 115 of Civil Procedure Code. .

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Heard Dr.C.Ravichandran, learned counsel for the petitioner and Mr.S.Sounther, learned counsel for the respondent.

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Discussion :

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This Court has perused the impugned order. The Court below has allowed the amendment application on the ground that

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even though the amendment had been sought for by the respondent belatedly, the amendment is still maintainable as the petitioner / appellant has not questioned the four boundaries under Survey numbers of suit properties viz., Item No.2, 8, 9 and 15

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CRP (NPD) No.2526 of 2014

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before the Trial Court as well as in the appellate Court and hence no prejudice would be caused to the petitioner / appellant, if the amendment application is allowed. Further, the Court below has observed that being a technical ground raised by the petitioner, ultimate justice will have to be rendered to the parties to the dispute and on that ground also the amendment application came to be allowed.

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However, as seen from the counter affidavit filed by the petitioner in I.A. No.123 of 2013 in paragraph 10, the petitioner has disputed the boundaries, identity and extent of the suit 15 items of the property, which is sought to be amended by the respondent /respondent in I.A. No.123 of 2013.

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Under Order 6 Rule 17 CPC amendment application can be

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filed before trial or at any stage of the proceedings. It is settled law that in cases where the amendment application is filed before trial, the Courts will have to consider the same liberally. Whereas, if the amendment application is filed after commencement of trial or at any stage of the proceedings thereafter, due diligence will have to be shown by the party, who is seeking amendment for not having filed the application before trial.

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In the instant case, the amendment application admittedly

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was not filed during the pendency of the suit and has been filed only

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CRP (NPD) No.2526 of 2014

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in the stage of appeal. The grounds raised in this revision petition is that the respondent /respondent has sought to introduce a new claim by virtue of the amendment sought for in I.A. No.123 of 2013. The petitioner / appellant has denied the boundaries, identity of the property as well as the extent sought to be amended in the counter filed in I.A. No.123 of 2013. Since the amendment application has already been allowed as early as on 19.2.2014 by the Court below and without going into the merits of the matter in this revision as regards the maintainability of the amendment application and as to whether the impugned order passed by the Court below is correct or not for early disposal of the Appeal A.S. No.50 of 2012, this Court without passing any order on merits with regard to the impugned order issues the following directions :-

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a) The Court below shall decide while passing the

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final judgment in the appeal A.S. No.50 of 2012, as to whether the amendment carried out pursuant of the order dated 19.02.2014 in I.A. No.123 of 2013 in A.S. No.50 of 2012 has introduced a new claim without

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seeking for rectification of the suit agreement of sale deed, dated 05.12.2001, which is marked as Ex.A1,

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b) The Court below is directed to decide as to

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whether the petitioner should be given the right to cross

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CRP (NPD) No.2526 of 2014

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examine in the suit A.S. No.50 of 2012, since the amendment alters the survey numbers of certain items in the suit schedule properties.

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c) The Court below shall decide in the judgment to

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be passed in the appeal A.S. No.50 of 2012 as to whether adding of boundaries in respect of item Nos.2, 8, 9 and 15 will change the description of the suit schedule property, and

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d) The lower appellate Court, apart from

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considering the above issues shall also consider other issues framed by the Trial Court and shall pass the final judgment in A.S. No.50 of 2012, within a period of six months from the date of receipt of a copy of the order.

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With the above directions, the Civil Revision Petition stands disposed of No costs. Consequently, connected

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miscellaneous petition is closed.

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30.07.2019

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Index: Yes/ No Internet: Yes/No Speaking Order/Non-speaking Order vsi2

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CRP (NPD) No.2526 of 2014

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To The Principal District Judge,

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Villupuram.

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ABDUL QUDDHOSE, J.

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CRP (NPD) No.2526 of 2014

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vsi2

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CRP (NPD)No.2526 of 2014
30.07.2019

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Palanisamy v. Krishnan

Case brief

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Palanisamy v. Krishnan

Case brief

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