IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2008 CORAM THE HONOURABLE MR. JUSTICE M. VENUGOPAL C.R.P. PD. No.2992 of 2008 and M.P.No. 1 of 2008 Ramakrishnan .. Petitioner Versus Subramanian .. Respondent The Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order in I.A.No.303 of 2006 in O.S.No.279 of 2006 dated 16.07.2008 on the file of the Principal District Munsif, Karaikal. For Petitioner : Mr.S.James For Respondent : Mr.R. Natarajan ORDER The Civil Revision Petitioner / respondent / defendant has preferred this Civil Revision Petition aggrieved against the order dated 16.07.2008 passed in I.A.No.303 of 2006 in O.S.No.279 of 2006 by the learned Principal District Munsif, Karaikal, in allowing the application for amendment of plaint filed under Order 6 Rule 17 and 18 of Code of Civil Procedure by the respondent/petitioner/ plaintiff 2. The trial Court while allowing the I.A.No.303 of 2006 has inter-alia observed that 'the effect of wrong mention of property in the agreement will be decided at the time of trial. If the petition is allowed, it will not prejudice to the respondent/defendant. ... etc..' and has resultantly allowed the application without cost. 3. Assailing the order passed by the trial Court in I.A.No.303 of 2006 by allowing the application, the learned counsel for the revision petitioner/defendant contends that the trial Court has failed to note that the suit is based on agreement of sale dated 29.01.2001 and the description of the property in the agreement as https://hcservices.ecourts.gov.in/hcservices/ well as in the schedule of the plaint is one and the same and the contention of the learned counsel for the respondent/petitioner/ plaintiff that a clerical error has crept in is not correct and moreover the amendment application has been filed after two years from the time of filing the statement and no reasonable explanation has been projected by the respondent/petitioner/plaintiff for causing such delay in moving the application and the amendment allowed by the trial Court will cause prejudice to the revision petitioner/defendant and the same cannot be compensated in terms of cost and further that the date of agreement is on 29.01.2001 and the transaction is to be completed within a period of eight months from 29.01.2001 and therefore, the amendment application in I.A.No.303 of 2006 is clearly barred by the law of limitation and therefore prays for allowing the Civil Revision Petition in furtherance of substantial cause of justice. 4. The learned counsel for the revision petitioner/defendant cites the decision "S.Kuppusamy ..vs.. P.K.Subramani and others" of this Court reported in 2005(4) CTC 734 whereby this Court has held that 'Amendment allowed after a period of limitation prescribed under Limitation Act is not correct and that the amendment of plaint ordered by trial Court is set aside and Civil Revision Petition is allowed'. He also relies on the decision " T.L.Muddukrishana and another ..vs.. Smt. Lalitha Ramchandra Rao " of the Honourable Supreme Court reported in " AIR 1997 Supreme Court 772 " wherein it is inter-alia observed that 'subsequently , filing application under Order 6 Rule 17 during pendency of suit for seeking specific performance of contract after expiry of three years from date fixed by parties under contract would be barred by limitation .. etc...'. 5. Added further, the learned counsel for the revision petitioner/defendant also cites a decision " K.Raheja Constructions Ltd., and another ..vs.. Alliance Ministries and others" of the Honourable Supreme Court reported in " 1995 Supp (3) Supreme Court Cases 17 ", wherein the Honourable Supreme Court as among other things observed that 'Limitation Period of three years under Article 54 of Limitation Act having elapsed, grant of the amendment would defeat the valuable right of limitation accruing to the respondents ... etc..'. https://hcservices.ecourts.gov.in/hcservices/ He further presses into service the decision " Ganesh Shet ..vs.. Dr.C.S.G.K.Setty and others " of the Honourable Supreme Court reported in " AIR 1998 Supreme Court 2216 at page 2220 at paragraph 16" where under, it is observed that ' The Court would not in a case of this description permit the plaintiffs to depart from the case made in the plaint as the Court discourages, as a rule, variance between pleading and proof. The test to be applied in such cases is whether if the variance were permitted in favour of the plaintiffs, defendants would be taken by surprise and be prejudiced thereby.' Moreover, in the aforesaid decision, the learned counsel for the revision petitioner at page 2220 relies on the observations made in paragraph Nos. 17 and 18 which inter-alia run as follows: " 17. A.N. Ray (as he then was) in Md. Ziaul Haque ..vs.. Calcutta Vyapar Pratisthan, AIR 1966 Cal 605, referred to the special rule applicable to suits for specific performance and also relied upon Hawkins ..vs.. Maltby, (1867) 3 Ch A 188. The learned Judge observed (Para 31 of AIR): " In Nil Kanta's case 19 Cal WN 933 : AIR 1916 Cal 774, it was said that when a plaintiff alleged a contract of which he sought specific performance and failed to establish in the Court would not make a decree for specific performance of a different contract. Reliance was placed on Hawkins ..vs.. Maltby, reported in (1867) 3 Ch A 188. ... Emphasis was rightly placed on the aspect of the plaintiff's case pleaded that there was an agreement in the month of August and that the plaintiff failed to prove that case and the plaintiff having completely abandoned that case of agreement in the month of August, any attempt on behalf of the plaintiff to make recourse to May agreement would be to have a decree for specific performance of an agreement which was not the agreement of the parties according to the plaintiff." The above special principles applicable to cases of specific performance can be also gathered from standard works under the England (English) https://hcservices.ecourts.gov.in/hcservices/ Law, where the above English cases and other cases have been cited. 18. Halsbury's Laws of England (Vol.44, 4th End. 1984) (Specific Performance, para 443) (f.n.1) states, after referring to Pillage vs.. Armitage. (1805), 12 Ves 78, that the plaintiff having failed to prove an agreement which he had set up, was refused specific performance of a different agreement admitted by the defendant Cf.Legal v. Miller. (1750) 2 Ves Sen 299." 6. He also cites the decision " P. Subba Naicker ..vs.. Veluchamy Naicker and three others" of this Court reported in "2004 (2) CTC 742 " wherein this Court has inter-alia held that 'after Amendment Act came into force no amendment of plaint can be allowed after commencement of trial unless Court comes to conclusion that inspite of due diligence plaintiff could not have raised the plea before commencement of trial.' He also brings to the notice of this Court the decision " T.N.Alloy Foundry Co. Ltd., ..vs.. T.N. Electricity Board and Others " of the Honourable Supreme Court reported in "2004-3-L.W.732" wherein the Honourable Supreme Court has held as follows: " The law as regards permitting amendment to the plaint, is well settled. In L.J.Leach and Co. Ltd., and Anr. vs.. Messrs. Jardine Skinner and Co., (AIR 1957 SC 357-1957 SCR 438), it was held that the Court as a rule will decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it." 7. The learned counsel for the revision petitioner/defendant relies on the decision " Rameeza Beevi and others ..vs.. S.Mohammed Ibrahim " of this Court reported in " 2005 (5) CTC 619" wherein this Court has held that ' Application for amendment of prayer is barred by limitation. etc.,'. He also cites the decision "Pachammal and 3 others ..vs.. Rathinasamy and 7 others " of this Court reported in " 2004 (1) CTC 100" wherein this Court has held that, https://hcservices.ecourts.gov.in/hcservices/ ' An Amendment petition cannot be sustained as it is unsupported by any material particulars, and belatedly filed and it lacks bona fide and that the order of trial Court dismissing application for amendment is upheld in revision.' 8. Apart from the above decisions, the learned counsel for the revision petitioner/defendant cites a decision " Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyar Vaisya Madam ..vs.. Udumalpet Samayapuram Ayira Vaisya Sangam, represented by its President " of this Court reported in " 2005 (4) CTC 664" , wherein this Court has inter-alia held as follows: ' In cases where amendment is after commencement of trial or conclusion of trial, Court should answer with reference to facts and circumstances of each individual case; No absolute rule that in every case where relief is barred, amendment should not be allowed and that discretion vested with Courts to be exercised on judicious evaluation of facts and circumstances of the case and to sub- serve ultimate cause of justice or avoid further litigation; When there is dispute as to bar of limitation, amendment sought could not be declined as it could be made subject matter of issue after allowing amendment.' He also places reliance on the decision " Arundhati Mishra ..vs.. Sriram Charitra Pandey " of the Honourable Supreme Court reported in " (1994) 2 Supreme Court Cases 29 at page 30" wherein the Honourable Supreme Court has inter-alia held that, ' the defendant could not be permitted to raise the additional plea of adverse possession by amending the written statement.' 9. Learned Counsel for the revision petitioner/defendant also cites the decision " The Municipal Corporation of Greater Bombay .. vs.. Lala Pancham and others " of the Honourable Supreme Court reported in " AIR 1965 Supreme Court 1008 " wherein the Honourable Supreme Court has held that, 'Amendment of plaint introducing new cases should not be allowed'. He also relies on the decision " Gurdial Singh and others ..vs.. Raj Kumar Aneja and Others " of the Honourable Supreme Court reported in " (2002) 2 Supreme Court Cases 445 at page 446" wherein the Honourable Supreme Court has observed that, https://hcservices.ecourts.gov.in/hcservices/ ' a new plea cannot be permitted to be introduced in guise of a consequential amendment and a new plea can only be introduced by way of independent or primary amendment. etc.,'. 10. Per contra, the learned counsel for the respondent/ petitioner/plaintiff contends that trial Court has assigned proper and cogent reasons while allowing I.A.No.303 of 2006 filed for amending the plaint and that the trial Court has come to the right conclusion by allowing the application, the same will not cause any prejudice to the revision petitioner/defendant and viewed in that perspective, the order passed by the trial Court may not be interfered by this Court sitting in Revision. 11. Learned counsel for the respondent/plaintiff relies on the decision " Pankaja and another ..vs.. Yellappa (D) LRS. and others " of the Honourable Supreme Court reported in " 2004 (4) CTC 231" wherein the Honourable Supreme Court has held that, ' there can be no straight jacket formula for allowing or disallowing amendment of pleading which depends on factual background of that case and such application should not be disallowed merely because it is opposed that it is barred by litigate and on facts held that applicability of limitation was arguable question and proposed amendment does not introduce different relief ... etc.,'. He also further relies on the decision " Rajkumar Gurawara (dead) through LRs. ..vs.. S.K.Sarwagi & Co. Pvt. Ltd., and another " of the Honourable Supreme Court reported in " 2008 (5) CTC 253 at page 258" wherein the Honourable Supreme Court has inter-alia observed that, '... To put it clear, Order 6 Rule 17, C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite https://hcservices.ecourts.gov.in/hcservices/ party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the Proviso.' 12. At this juncture, the learned counsel for the revision petitioner/defendant submits that after I.A.No.303 of 2006 filed for amendment of plaint having been allowed by the trial Court what remains to be available is only the cause title and the suit property and nothing survives for adjudication and the amendment allowed by the trial Court will change the nature and character of the suit and it will also change the cause of action by making out a new case and since the amendment pertains to an inconsistent plea, the same cannot be allowed in the interest of justice. 13. According to the learned counsel for the revision petitioner/defendant, the suit property belongs to the brother of the revision petitioner/defendant and the agreement in question is in respect of the defendant's brother's property and suit notice is also in respect of the defendant's brother's property and when the trial Court is allowed the I.A.No.303 of 2006 for amendment of plaint, then practically there is no agreement at all now in the eye of law and therefore prays for allowing the Civil Revision Petition. 14. It is to be borne in mind that power of a Court of law to allow an amendment ought to be liberally exercised and the liberal principles which guide the exercise of discretion in allowing the amendment is that plurality of proceedings must be avoided, that amendments which do not totally alter the character of an action must be readily granted, at the same time care must also be taken to see that injustice and prejudice of an irremediable character are not imposed upon the other side under the pretext of amendment. Moreover, one distinct cause of action ought not to be substituted for another and the prime consideration is when the subject matter of the suit ought not to change by allowing the amendment application. As a matter of fact the general rule is that amendment will be granted so as to enable the real question in issue between the parties to be raised on the pleadings and where the amendment will cause no injury to the other side, then the same can be properly compensated by means of costs. 15. As far as the present case is concerned, the respondent/plaintiff has filed I.A.No.303 of 2006 wherein he has specifically stated that ' the western half of the house property bearing door No.12, situated at Mariamman Koil Street, Varichikudy was partitioned in favour of said Murugan. The eastern half of the said house was allotted to the defendant. Mistakenly, in the Agreement for sale, instead of writing 'eastern' it was written as 'western'. Except the said trivial discrepancy and connected discrepancy all other description of the schedule of property are intact. etc..'. The revision petitioner/defendant in the counter https://hcservices.ecourts.gov.in/hcservices/ filed to I.A.No.303 of 2006 before the trial Court has inter-alia stated that 'the amendment of the pleadings, i.e., Schedule of property would be confronted with the alleged agreement and that he has not stated anything about entering into sale agreement with the plaintiff on any point of time. etc.,. 16. On an overall assessment of factual scenario of the present case, this Court is of the considered view that the respondent/plaintiff has only sought permission of the trial Court to amend the suit schedule property in the light of partition deed dated 09.08.1977 and he has further stated that 'mistakenly in the agreement of sale instead of writing 'eastern', it was written as 'western' etc.,'. Therefore it cannot be said by any stretch of imagination that the application for amendment changes the entire cause of action and character of the suit totally. On the other hand, by allowing the said application, the real controversies between the parties can be brought before the Court and the same can be dealt with comprehensively so as to put at the rest of the disputes involved in the suit once for all. In that view of the matter since the amendment in I.A.No.303 of 2006 sought for only pertains to the pre-trial stage, this Court is not interfering with the order of the trial Court passed in I.A.No.303 of 2006 exercising its discretion and resultantly allowing the application and viewed in the perspective, the Civil Revision Petition fails and the same is hereby dismissed. 17. In fine, the Civil Revision Petition is dismissed. The order passed by the trial Court in I.A.No.303 of 2006 in O.S.No.279 of 2006 is affirmed by this Court for the reasons assigned in this Revision. It is made clear that the issue of limitation raised by the Revision Petitioner/Defendant is an arguable question and the trial Court is directed to frame additional issues in this regard in case other issues have already been framed and further the trial Court is directed to provide opportunities to parties to let in oral and documentary evidence in this regard at the time of trial of the case. Liberty is also given to the revision petitioner/defendant to file any Additional Written Statement, consequent upon I.A.No.303 of 2006 having been allowed. The trial Court is directed to dispose of the main case within a period of three months from the date of receipt of a copy of this order, uninfluenced with any of the observations made by this Court in this Revision. Consequently, connected Miscellaneous Petition is closed. However, there will be no orders as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ mra To Principal District Munsif, Karaikal. 1 CC To Mr.S.James , Advocate, SR NO.64103/08 1 CC To Mr.R. Natarajan, Advocate, SR NO.63860/08 C.R.P. PD. No.2992 of 2008 and M.P.No. 1 of 2008 SA(CO) PMK/21.11.2008. https://hcservices.ecourts.gov.in/hcservices/