High Court allowed civil revision against an order allowing amendment of plaint to include declaration of title. Court held no new cause of action was introduced. It enhanced the cost from Rs.1,000 to Rs.6,000 due to delay.
Revised the cost imposed for filing the amendment application from Rs.1,000 to Rs.6,000.
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.3381 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.10.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD)No.3381 of 2017
1.Kandasamy (died)
2.Malliga
3.Gowtham .. Petitioners
(Petitioners 2 and 3 brought on record as legal
heirs of the sole petitioner viz. Kandasamy vide
Court order dated 29.09.2021 made in C.M.P.Nos.
15951, 15954 and 15957 of 2021 in C.R.P(PD)No.
3381 of 2017)
Vs.
K.P.Palanisamy .. Respondent
PRAYER : Civil Revision Petition filed under Article 227 of the Constitution of India, against the fair and decretal order dated 02.08.2017 made in I.A.No.233 of 2017 in O.S.No.82 of 2015 on the file of the
District Munsif Court-cum-Judicial Magistrate's Court, Kodumudi.
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For Petitioner : Mr.R.Prabakar
For Respondent : Mr.K.Karthikeyan
ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
Civil Revision Petition is filed against the fair and decretal order
dated 02.08.2017 made in I.A.No.233 of 2017 in O.S.No.82 of 2015 on the file of the District Munsif Court-cum-Judicial Magistrate's Court, Kodumudi.
2.The 1st petitioner is defendant and respondent is plaintiff in O.S.No.82 of 2015 on the file of the District Munsif Court-cum-Judicial Magistrate's Court, Kodumudi. Pending Civil Revision Petition, the 1st petitioner died and his legal heirs were impleaded as petitioners 2 and 3.
The respondent, who is elder brother of the 1st petitioner, filed the said suit for declaration and injunction. In the said suit, the respondent filed I.A.No.233 of 2017 for amendment of the plaint for relief of declaration
of title in respect of the suit schedule properties.
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3.According to the respondent, the 1st petitioner sold 'A' and 'B'
suit schedule properties to the respondent by two sale deeds dated 15.09.1983, 18.06.1991 and release deed dated 03.07.1988. From the date of sale deeds and release deed, the respondent is in possession and enjoyment of the suit property. In the schedule of the sale deed, some mistakes have crept in with regard to survey numbers. Taking advantage of the said mistake, the 1st petitioner is creating problem and is interfering with peaceful possession and enjoyment of the respondent. In view of the same, the respondent filed the suit for the relief stated therein. Subsequently, the respondent came to know that he has to seek relief of declaration and hence, filed present I.A.
4.The 1st petitioner filed counter affidavit and stated that the
respondent is introducing a new case by way of amendment. By this amendment, the nature and character of the suit will be changed. The respondent is introducing new cause of action and prayed for dismissal of the said I.A.
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5.The learned Judge considering the averments in the affidavit,
amendment now sought for and judgment of the Hon'ble Apex Court reported in CDJ 2004 SC 872 [Pankaja and another vs. Yellappa (D) legal heirs and others] , allowed the I.A. imposing cost of Rs.1,000/- on
the respondent.
6.Against the said fair and decretal order dated 02.08.2017 made in
I.A.No.233 of 2017 in O.S.No.82 of 2015, the petitioners have come out
with the present Civil Revision Petition.
7.The learned counsel appearing for the petitioners contended that
the respondent filed an application for amendment belatedly after
evidence of 1st petitioner was completed and when the suit was posted for evidence of respondent. The 1st petitioner filed written statement on
15.06.2015. Only after two years of filing written statement, the respondent has come out with present application. The respondent was
not vigilant enough and has not filed I.A. at the earliest. The amendment
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to C.P.C. is introduced only to prevent such delaying tactics as adopted by the respondent. By the amendment now sought for, the respondent is introducing a new case and new cause of action. The learned Judge failed
to appreciate the delay in filing the application, the respondent is introducing new cause of action and prayed for allowing the Civil
Revision Petition.
8.The learned counsel appearing for the respondent made submissions in support of the order of the learned Judge and prayed for dismissal of the Civil Revision Petition.
9.Heard the learned counsel appearing for the petitioners as well as
the learned counsel appearing for the respondent and perused the entire materials on record.
10.From the materials on record, it is seen that the respondent has
filed suit for declaration to declare that S.No.379/15 - 0.09.0 hectares -
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Rs.0.18 mentioned in the sale deed dated 15.09.1983 bearing document No.832/1983 and S.No.324/8 – 0.17.5 hectares – Rs.9.72 mentioned in the release deed dated 03.07.1988 bearing document No.361/1988 on the file of the Sub-Registrar, Kodumudi, are wrong and S.No.379/16 – 0.09.0 hectares – Rs.18/- and S.No.325/11 – 0.19.50 hectares – Rs.10.32 are correct and for injunction. According to the respondent, the 1st petitioner is his younger brother and in the Panchayat, a partition was effected between the 1st petitioner and respondent and the suit property was allotted to the 1st petitioner. The 1st petitioner by two sale deeds dated 15.09.1983 and 18.06.1991 sold portion of the suit properties allotted to him to the respondent. By the deed of release dated 03.07.1988, the 1st petitioner released other portion of the property to the respondent. By these three documents, the respondent has become absolute owner of the suit property. There were some mistakes crept in, in the survey numbers
mentioned in the sale deed dated 15.09.1983 and release deed dated 03.07.1988. The 1st petitioner taking advantage of the same is trying to interfere with the peaceful possession and enjoyment of the respondent in
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the suit property. On these averments, the respondent filed the suit for declaration as mentioned above. The 1st petitioner in the written statement denied title of the respondent and also filed O.S.No.163 of 2015 in June 2015 for partition against the respondent. In view of denial of title of the respondent to the suit property, the respondent has filed
present I.A. for amendment to include the relief of declaration of title.
11.It is well settled that when the title is denied, the proper relief to the party is declaration of title. It is well settled that in the facts and circumstances of the case, the amendment of the plaint to include the relief of declaration can be granted even at the appellate stage. The Court has to consider all the materials placed before it and pass orders with regard to amendment with relief of declaration of title. There is no straight jacket formula either to allow or reject the application for
amendment. In the present case, the respondent has made averments in the plaint with regard to his title, he acquired title by two sale deeds and release deed. The respondent is not seeking to amend the plaint by
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introducing new case or new cause of action. Based on the averments already made in the plaint and cause of action, the respondent has filed present I.A. The respondent is not introducing any new case or new cause of action. In view of the same, the contentions of the learned counsel for the petitioners that respondent is introducing new case and new cause of action are not acceptable. The learned Judge considering the entire materials placed before him in proper perspective and by giving cogent
and valid reason, allowed I.A. imposing cost of Rs.1,000/- on the respondent.
12.Considering the entire materials and the fact that the respondent
has filed present I.A. after two years of filing of the written statement, after commencement of trial and when the suit was posted for examination of witnesses on behalf of the respondent, the cost awarded
by the learned Judge is meagre. Therefore, the cost awarded by the learned Judge is enhanced to Rs.6,000/-. The respondent is directed to pay the balance amount of Rs.5,000/- (Rupees Five Thousand only) to
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the counsel for the petitioners within three weeks from the date of receipt
of a copy of this order.
13.With the above directions, the Civil Revision Petition stands
disposed of. No costs.
22.10.2021
Index : Yes/No
Internet: Yes/No
kj
To
The District Munsif-cum-Judicial Magistrate
Kodumudi.
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C.R.P.(PD)No.3381 of 2017
V.M.VELUMANI,J.
Kj
C.R.P.(PD)No.3381 of 2017
22.10.2021
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2 issues framed by the court
Whether amendment of plaint to include relief of declaration of title takes time for commencement of trial and introduction of new case or cause of action
Whether the cost awarded by the lower court for late amendment was adequate
Colour shows how this judgement treated each authority
Pankaja and another vs. Yellappa (D) legal heirs and othersExplained¶32
CDJ 2004 SC 872 [Pankaja and another vs. Yellappa (D) legal heirs and others]
2 provisions across 2 enactments
Kandasamy (died) and legal heirs
K.P.Palanisamy
V.M.VELUMANI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
