Revision against dismissal of application to amend plaint to substitute relief for recovery of possession. High Court held delay not fatal, amended plaint allowed within prescribed time.
Order of Trial Court set aside; amendment to plaint allowed; plaintiffs to file amended plaint by 09.11.2020; defendant to file additional written statement.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R.P(PD)No 2497 of 2018 and C.M.P.No. 15252 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.10.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.R.P(PD).No. 2497 of 2018
and
C.M.P.No. 15252 of 2018
Anbarasi(deceased)
1.Panchavarnam
2.Malathi
3.Revathi ...Petitioners
Vs.
1.Seethalakshmi
2.Olivillaku ..Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India, against the fair and decreetal order dated 12.03.2018 made in I.A.No.
12 of 2018 in O.S.No. 208 of 2012 on the file of the District Munsif Court,
Jayankondam.
For Petitioners : Mrs.Senthil Vadivu
For Respondents : No appearance
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O R D E R
The plaintiffs in O.S.No.208 of 2012 are on revision aggrieved by
the dismissal of their application in I.A.No.12 of 2018 seeking amendment of the plaint.
permanent injunction restraining the defendants from interfering with the plaintiffs' possession of the property, which is admittedly classified as Village Natham. The written statement was filed on 11.03.2013. An application was filed in December 2017, just after the examination of P.W.1 seeking to amend the plaint to substitute relief in the plaint as one for recovery of possession after removal of super structure and for a mandatory injunction for removal of super structure.
the construction was put up even during the year 2013, hence the application for amendment is barred by limitation. The Trial Court, upon a
consideration of the averments in the affidavit and the counter concluded
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that the application is belated and no explanation has been given as required under Proviso to Order 6 Rule 17 of C.P.C., for not filing the application earlier in point of time. On the above conclusions, the learned Trial Judge dismissed the application.
petitioners. Respondents though served, are not appearing either in person or through counsel.
been put up in 2013 itself, there is no plea that the construction has been completed in the year 2013 when the written statement was filed on 11.03.2013. It is also stated that the first defendant has stopped construction in view of the order of the Court. Therefore, the claim that the reliefs sought for namely, the relief of recovery of possession along with the relief of mandatory injunction are barred by limitation cannot be decided in the application for amendment. It is a matter, which has to be decided on
the basis of evidence that has to be let in by the parties.
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dismissed by the Trial Court, I do not think that it will be proper to reject a substantial amendment solely on the ground of delay. The Proviso under Order 6 Rule 17 does not bar an amendment after commencement of trial. It only requires the plaintiff to plead as to why the application could not be filed earlier. In the case on hand, in the affidavit itself, the plaintiffs have clearly stated that the defendant agreed to remove the super structure in a Panchayat that was convened in the village, hence, he did not chose to discuss it with the counsel. When parties are not highly literate, the Court should not insist upon strict compliance with the requirements of law, which
are directory in nature. The proviso to Order 6 Rule 17 is a directory provision which invests the discretion in the Court to allow the amendment upon satisfaction that there was some reason for the plaintiff to have failed to seek the amendment earlier.
in applying the Proviso very strictly and throwing out the application for amendment. The defendant had admitted that he had put up the construction
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pending suit therefore, the defendant was aware of the fact of the threat to his title and possession. Therefore, he is not going to be taken by surprise because of the amendment. Hence, the order of the Trial Court needs to be interefere with.
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C.R.P(PD)No 2497 of 2018 and C.M.P.No. 15252 of 2018
R.SUBRAMANIAN, J.
KKN
C.R.P(PD).No. 2497 of 2018
and
C.M.P.No. 15252 of 2018
05.10.2020
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3 issues framed by the court
Whether substantial amendment of plaint seeking alteration of reliefs is barred by delay under Proviso to Order 6 Rule 17 C.P.C.
Whether amendment seeking recovery of possession is time-barred when construction was not completed before written statement
Whether plaintiffs conforming to directory requirements of Order 6 Rule 17 Proviso is a valid ground for allowing amendment
2 provisions across 2 enactments
Anbarasi (deceased) nos. 1-3 Panchavarnam Malathi Revathi
Seethalakshmi Olivillaku
R. Subramanian
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
