Kaliathal v. Murugathal2. Maheswari3. Udhaya Raja4. Udhaya Malar5. Sangliammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.11.2006CORAM:THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIANCivil Revision Petition (PD) No.521 of 2004and C.M.P.No.5309 of 2004Kaliathal .... Petitioner/Defendant.Vs.1.Murugathal2. Maheswari3. Udhaya Raja4. Udhaya Malar5. Sangliammal.... Respondents/Plaintiff.PRAYER: Civil Revision Petition is filed under Article 227 of theConstitution of India praying to set aside the order dated 25.9.2003 madein I.A.No.1267 of 2003 in O.S.No.234 of 1997 on the file of DistrictMunsif's Court, DharapuramFor petitioner :Mr.R.AsokanFor Respondent :Mr.D.Kailash KumarO R D E R Aggrieved by the order of the trial Court dated dated 25.9.2003 madein I.A.No.1267 of 2003 in O.S.No.234 of 1997 non-suiting the petitionerfor the relief of reopening the case to enable her to file additionalwritten statement claiming the relief of declaration to declare her alsoas one of the wedded wife of the deceased Bala Dhandapani, the presentcivil revision petition is filed.2. The facts giving rise for filing the present revision are asfollows:The respondents herein as plaintiffs filed the suit in O.S.No.234 of1997 on the file of the District Munsif's Court, Dharapuram fordeclaration declaring the first respondent as the wife and respondentsNo.2 to 4 as the children of the deceased Bala Dhandapani. The petitionerherein filed a written statement defendant the suit. By filing the presentapplication in I.A.No.1267 of 2003, the petitioner sought permission ofthe Court to file an additional written statement for declaring thepetitioner also as the legally wedded wife of the deceased Bala Dhandapaniby offering to pay necessary court fees. https://hcservices.ecourts.gov.in/hcservices/

3. The said application has been rejected by the trial Court on thepremise that the suit has already been listed for trial and evidence onbehalf of the plaintiff has been examined and at a belated stage theapplication of the petitioner cannot be allowed and the same is filed onlyto protract the proceedings. The correctness of the said order is now putin issue in this revision. 4. Learned counsel appearing for the respondents very strenuouslycontended that the order of the trial Court cannot be regarded as anillegal. As the trial of the suit has already been commenced, thepleadings cannot be allowed to be amended. Earlier two applications filedby the petitioner for re-opening the case and recalling the witnesses havealso been dismissed and thus strenuously contended that the stage of thesuit has reached almost finality. In such circumstances, the amendmentsought for by way of filing an additional written statement cannot at allbe allowed. On that ground, the order of the trial Court needs nointerference by this Court.5. To sustain the said argument, the learned counsel for therespondents relied on a decision of this Court in the case of S.AHMEDMEERA VS. S.KUMARASWAMY reported in 2006(1) CTC 55 and that of theSupreme Court in the case of BALDEV SINGH VS. MANOHAR SINGH reported inAIR 2006 SC 2832.6. I heard the argument of the learned counsel on either side andperused the material on record.7. The respondents herein filed a suit for declaration to declare thefirst respondents as wife and respondents 2 to 4 as legal children of thedeceased Bala Dhandapani and as such they are the legal representatives ofthe Deceased Bala Dhandapani who was working in the I.O.C.L. Thepetitioner herein filed another suit in O.S.No.138 of 1998 for aninjunction by impleading the respondents herein along with I.O.C.L.restricting the disbursement of the death-cum-retirement benefits of thedeceased Bala Dhandapani, as she was also claiming herself as wife of thedeceased Bala Dhandapani, of course, that is an injunction suit only. 8. The trial Court has recorded a statement that earlier twoapplications filed by the petitioner for reopening and recalling havebeen rejected. But what is the reason for filing such applications is notavailable on record. Of course the disposal of those applications cannotbe regarded as germane to decide the issue involved in this revision. Inthis case, a rustic villager, who is solely depending upon the advice ofher advocate, has filed the present application seeking to reopen the caseto file additional written statement to declare the petitioner also as alegally wedded wife of the deceased Bala Dhandapani by offering to paynecessary court fee to that effect. That aspect of the matter cannot bestated to be against the provisions. When the plaintiffs are seeking therelief very cleverly couched in favour of them, the petitioner/defendantcan also seek the relief in her favour by making the amendment in thewritten statement. that was factually done in this case also. https://hcservices.ecourts.gov.in/hcservices/

9. The decision of the Supreme Court relied on by the learned counselfor the respondents cannot be understood in an abstract fashion. Whileproceeding with the judgment, in paragraph No.7, a preface of the judgmenthas been stated with regard to the law on the subject. To put it in thewords of the Supreme Court, it reads as follows at paragraph No.8:"It is well settled by various decisions of this Courtas well as the High Courts in India that Courts should beextremely liberal in granting the prayer for amendment ofpleadings unless serious injustice or irreparable loss iscaused to the other side. In this connection, reference canbe made to a decision of the Privy Council in Ma Shwe Mya v.Maung Mo Hnaung (AIR 1922 P.C. 249) in which the PrivyCouncil observed: "All rules of courts are nothing but provisionsintended to secure the proper administration of justice andit is, therefore, essential that they should be made toserve and be subordinate to that purpose, so that fullpowers of amendment must be enjoyed and should always beliberally exercised, but nonetheless no power has yet beengiven to enable one distinct cause of action to besubstituted for another, nor to change by means ofamendment, the subject-matter of the suit." 10. The Supreme Court in the said judgment further proceeds that "Order 6 Rule 17 of the Code of Civil Procedure consists oftwo parts. The first part is that the Court may at any stage ofthe proceedings allow either party to amend his pleadings and thesecond part is that such amendment shall be made for the purposeof determining the real controversies raised between the parties.Therefore, in view of the provisions made under Order 6 Rule 17of the CPC it cannot be doubted that wide power and unfettereddiscretion has been conferred on the Court to allow amendment ofthe pleadings to a party in such manner and on such terms as itappears to the Court just and proper. While dealing with theprayer for amendment, it would also be necessary to keep in mindthat the Court shall allow amendment of pleadings if it findsthat delay in disposal of Suit can be avoided and that the suitcan be disposed of expeditiously. By the Code of Civil Procedure (Amendment) Act, 2002 aproviso has been added to Order 6 Rule 17 which restricts theCourts from permitting an amendment to be allowed in thepleadings either of the parties, if at the time of filing anapplication for amendment, the trial has already commenced.However, Court may allow amendment if it is satisfied that inspite of due diligence, the party could not have raised thematter before the commencement of trial."11. Learned counsel for the respondents heavily relied on paragraphNo.17 of the judgment, wherein the Supreme Court observed that:"the proviso to Order 6 Rule 17 of the CPC provides that https://hcservices.ecourts.gov.in/hcservices/ amendment of pleadings shall not be allowed when the trial ofthe Suit has already commenced. "What was the stage which can be regarded as commencement of trial hasbeen subsequently dealt with by the Supreme Court. The abstract reading ofa particular sentence cannot be appreciated. The finding rendered by theCourt in the decision is if the Court is satisfied that the amendmentcould not be carried out by the parties to the proceedings in spite of duediligence, the proviso provides for granting of the relief, so is thedecision of the learned single Judge of this Court reported in 2006(1) CTC55, with which reliance has been placed by the respondents. 12. As already stated, here is a case in which the petitioner seeks adeclaration in her favour by filing an application to reopen her case tofile an additional written statement to declare her as one of the legallywedded wife. On the very same ground, she filed a suit for injunctionagainst the I.O.C.L., for injuncting them not to disburse the retirementbenefits, which is also based on the same reason. Hence, it is not a newcase projected by the petitioner herein. 13. As already stated, the rustic people, who depend upon the adviseof the counsel appearing for them, cannot be faulted and that did not takedue diligence while filing their earlier written statement. Furthermorethe amendment, if allowed, that would avoid multiplicity of proceedings byfiling another suit, which also avoid the conflicting judgments renderedby the Court in a suit filed by the respondents for declaration and thesuit to be filed by the petitioner seeking same prayer in a subsequentsuit. Having regard to the above said facts, this Court is of theconsidered view that the interest of justice would be met if thepetitioner is allowed to raise the pleas by paying necessary fee. Thenecessary corollary would be the order of the trial Court non-suiting thepetitioner on pedantic technicalities has to be set aside and the same isset aside and the revision is allowed. It is needless to say that all thedefence the respondents are having legally and factually can be agitatedbefore the trial Court. As the matter is pending nearly for a decade, theparties are directed to get long with the suit and the trial Court isfurther directed to proceed with the suit on a day to day basis uponpassing the order in the application, which is the subject matter of therevision and conclude the same as expeditiously as possible, atleastwithin a period of four months from the date of receipt of copy of thisorder. https://hcservices.ecourts.gov.in/hcservices/ With this observation, the civil revision petition is allowed. Nocosts. Consequently, the connected C.M.P. is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.uskToThe District MunsifDharapuram+ 1 CC To Mr.D.Krishnakumar, Advocate SR NO.54340+ 1 CC To Mr. R.Asokan, Advocate SR NO.54437C.R.P.(PD)NO.521 of 2004ng[co]Gp/7.12.