1. The civil revision petition is taken up today for final disposal by consent of parties. This revision is filed against the order made in an application for amendment of plaint in I.A. No. 19921 of 1991 in O.S. No. 9306 of 1989 on the file of the learned XVII Assistant City Civil Judge, Madras, dismissing the application filed under Order 6, Rule 17 and Section 151, C.P.C. The original plaint is for a permanent injunction restraining the defendants, their agents, servants and men or every one claiming under them or acting on their behalf from in any way interfering with the plaintiffs peaceful possession and enjoyment of the suit properties, more fully described in the Schedules A, B and C in the plaint and for costs. In this application for amendment the plaintiff seeks to introduce certain facts which are detailed by him in his application and the plaintiff also seeks to introduce two new prayers (i) for a declaration that the plaintiff is the absolute owner of the suit property more fully described in the schedule A, B and C, and (ii) for a direction to the defendants to deliver vacant possession of the plaint, A, B and C Schedule properties to the plaintiff within the time to be fixed by the trial court failing which to direct the office of the trial court to put the plaintiff in vacant possession of the above said schedule properties. The second prayer for delivery of vacant possession is an alternative one. The alternative prayer has been taken up by the plaintiff possibly on the ground that she defendants have stated in the written statement that they are in possession of the suit properties. The trial court dismissed the application for amendment on the ground that the proposed amendment will change the nature of the suit.
2. In this revision Mr. T.V. Ramanujam, learned Counsel for the petitioner contended that the proposed two prayers are only in the nature of additional reliefs on the pleadings already made in the plaint. In the original plaint, there is a pleading that the plaintiff is the owner of the suit proper-tics. In para 6 of the plaint, the plaintiff has stated that he is in lawful possession and enjoyment of the suit properties as full owner thereof and he is exercising all the acts of ownership. Further, the plaintiff has stated that he has got patta in his name and that in pursuance of the sanctioned plan granted by the Corporation of Madras, he has put up construction in the suit properties in his capacity as full owner thereof. In the cause of action paragraph, the plaintiff has stated that he had purchased the suit properties on 17.7.1985 and that he has been put in possession thereof in pursuance of the sale deed and from which date the plaintiff has been exercising all acts of ownership over the suit properties. In paragraph 8 of the plaint, the plaintiff has stated that for the past one week, the defendants are making attempts to trespass upon the suit properties with the help of rowdy elements and that the plaintiff has protested against the same. Therefore, Mr. T.V. Ramanujam, learned Counsel for the petitioner argued that there is no charge of cause of action nor any new suit has been introduced by way of this amendment. According to him, the order of the lower court refusing amendment is illegal. In support of his contention, he relied upon the judgment reported in Narayanan Chettiar v. Rathinasabapathy Ayyar and Ors. 29 M.L.J. 464 (D.B.). The Division Bench has observed as follows:
Where the plaint as originally presented asked merely for a declaration that a decree obtained by the plaintiff against the defendants' father was binding on them but subsequently a prayer was allowed to be added byway of amendment of the plaint seeking for a direction to the defendants to pay the amount of the decree.
While narrating the facts of the case, the Division Bench stated as follows:
On 21.8.1901, the plaintiff obtained a decree on a promissory note against defendants' father in O.S. No. 295 of 1901. During the pendency of the execution proceedings defendant's father died. Plaintiff sought to execute the decree against the defendants but was unable to realise the amount from them. On 7.8.1907 plaintiff instituted the suit which is the subject of the present second appeal. The suit as originally framed was for a declaration that the decree in O.S. No. 295 of 1901 was binding on the defendants and that they were liable to pay the decree debt to the extent of the ancestral properly in their possession. The defendants contended inter alia that the plaintiff should have asked for further relief in the suit viz., the recovery of the decree amount from the defendants. On 24.2.1908 the plaintiff applied for leave to amend the plaint and the District Munsif passed an order allowing the amendment. The plaint was accordingly amended and a prayer for the recovery of the decree amount from the defendants was inserted on 15.7.1908. The District Judge on appeal, held that, though the suit was instituted within 6 years from the decree in O.S. No. 295 of 1901, the amendment asked for a new and distinct relief, viz., the recovery of the decree amount from the family property of the defendants and that to allow the amendment after the period of limitation would be to deprive the defendants of a defence open to them at law, consequently he refused to allow the amendment and dismissed the plaintiffs suit. Against this, the plaintiff preferred a second appeal to the High Court.
...The lower courts have held that the suit was barred because at the date of the amendment the decree was more than 6 years old and a suit such as the present suit came after the amendment, would have been barred, had it been instituted at the date of the amendment. In our opinion the lower courts have misunderstood the law applicable to the facts before them. The plaintiff did not seek to plead any new facts when he applied for leave to amend the plaint. All he desired to do was to be allowed to ask for a fresh relief on the facts already pleaded.
3. In the present case, the plaintiff has already pleaded that he is the owner of the suit property and that he is in possession of the same and he has originally filed the suit for a bare injunction restraining the defendants from interfering with the possession of the plaintiff. By way of this amendment, he seeks to introduce the prayer for a declaration of title and also for recovery of possession of the suit properties, in case the court finds that the defendants are in possession of the suit property as pleaded by him in the written statement.
4. In Firm Srinivas Ram Kumar v. Mahabir Prasad and Ors. , the Supreme Court has observed as follows:
A plaintiff may rely upon different rights alternatively and there is nothing in the C.P.C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. Ordinarily, the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or has an opportunity to meet. But, when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. Ademand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant it may not be proper to , drive the plaintiff to a separate suit.
Thus, where in a suit for specific performance of a contract, in part performance of which the plaintiff alleges to have paid the defendant some money, the defendant denies the contract and pleads that the money was taken by him as a loan, the court can pass a decree for recovery of the loan in favour of the plaintiff on his failure to prove the contract even though the plaintiff had failed to plead and claim relief on this alternative case.
5. In support of the contention of the plaintiff, Mr. T.V. Ramanujam, learned Counsel, relied upon the judgment reported in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation , wherein the
Supreme Court has observed as follows:
In the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts to amendment is to be allowed even after expiry of the statutory period of limitation.
The Supreme Court has also observed as under:
The principal reasons that have led to the rule last mentioned are, first, that the object of Court and Rules of procedure is to decide the rights of the parties and not to punish them for their mistakes (Cropper v. Smith, (1884)26 Ch.D. 700 (710-711), and secondly/that a party is strictly not entitled to rely on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleading sought to be amended (Kisandas Rupchand v. Rachappa Vithoba (1909) I.L.R. 33 Bom. 644 at 651, approved in Pirgonda Hongonda Patil v. Kalgonda Shidgonda .
The expression "cause of action". In the present context does not mean "every fact which is material to be proved to entitle the plaintiff to succeed" as was said in Cooke v. Gill (1873) L.R. 8 C.P. 107(116), in a different context, for if. it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new facts. Such a view was taken in Robinson v. Union Property Corporation Ltd. (1962)2 All E.R. 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words "new case" have been understood to mean "new set of ideas" Doman v. J. W. Ellis and Company Ltd. (1962)1 All E.R. 303. This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time 2.
6. In Ganesh Trading Company v. Moji Ram A.I.R. 1978 S.C. 98, the Supreme Court has observed as follows:
Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
Order 6, Rule 2, C.P.C. says:
Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.
Order 6, Rule 4 indicates cases in which particulars of its pleading must be set out by a party. And Order 6, Rule 6 requires only such conditions precedent to the distinctly specified in a pleading as a party wants to put in issue. Order 6, Rule 5 provides for such "further and better statement of the nature of the claim or defence or further and better particulars of any matter stated in any pleading..." as the court may order, and "upon such terms, as to costs and otherwise, as may be just." Order 6, Rule 7 contains a prohibition against departure of proof from the pleadings. After some provisions relating to special cases and circumstances and for signing, verification and striking out of pleadings, comes Order 6, Rule 17 which reads as follows:
The court may at any stage of the proceedings allow other party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
It is clear from (he foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parlies concerned necessary opportunities to meet exact situations resulting from amendment, are intended for promoting the ends of justice and not for defeating them. Even if a party if its counsel is inefficient in setting "out its case initially the shortcoming can certainly be removed, generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedical steps do not unjustifiably injure rights accrued.
It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the court will refuse to permit it if it amounts to depriving the party, against which a suit is pending, of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit, if any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could some time be viewed as equivalent to as introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions, such as payment of either any additional court-fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings.
7. In Gopi Pillai v. Dr. Swamy 93 L.W. 317, Sathiadev, J. (as he then was) has held that in a suit for permanent injunction, amendment of plaint praying alternative prayer of recovery of possession, being filed after examination and after closing the evidence cannot be allowed. This judgment has been overruled by the Supreme Court in Gopi Pillai v. Dr. Swamy (1990)1 L. W.363, wherein it has been observed as under:
The amendment has been sought for at rather early stage, i.e., before the trial was over and it neither alters the nature of the suit nor it works any serious injustice to the defendant who would certainly be entitled to file an additional written statement in order to rebut the allegations made in the amended plaint.
8. Mr. D. Nellaiappan, learned Counsel for the respondent relied upon the judgment reported in "Seeni Nadar and three others v. Thangamuthu and two Ors. (1990) T.N.L.J. 335, wherein Srinivasan, J. has held that a party shall not be allowed to set up a new case or new cause of action in between original plaint and the amendment sought for. The learned Judge has therefore upheld the order of the lower court refusing amendment. In that case, the suit was filed by the petitioners for bare injunction in the plaint and it was stated that the petitioners had purchased the properties on 6.8.1985 and since then they were in exclusive possession thereof. Apart from the allegation that the first defendant with a view to grab the suit properties along with the second defendant attempted to encroach the suit properties and cut the trees standing thereon from 17.5.1986, no other details were mentioned. The prayer in the suit was only for grant of injunction on the footing that the parties were in possession.
9. In the application for impleading parties to the suit, it is stated in the affidavit filed in support of the application that the petitioners entered into an agreement of sale on 17.5.1974 with the prior owner and paid the entire sale consideration and that possession was handed over to the petitioner on 17.5.1974 itself. This new case put forward in the affidavit is directly contrary to the case put forward in the original plaint that the petitioners were in possession since the date of sale on 6.3.1986. The affidavit proceeded to state that some other persons claimed to have obtained patta and the sale patta had been fraudulently obtained. It was alleged that the persons who claimed to have obtained patta had no right, title or interest in the suit properties and some officers belonging to the community of the defendants were working in the Revenue and Survey Department in Srivaikundam Taluk and with their help and at the instigation of the defendants patta had been fraudulently issued. It was further alleged that at the time of Commissioner's visit, the persons, who were sought to be impleaded as parties, were noted by the Commissioner to be in possession and therefore it was necessary to implead them as parties. But an allegation was made that those persons were never in possession of the property. At the same time, the application for amendment of the plaint was also made, the prayer is the application for amendment is to introduce certain paragraphs in the plaint and amend the prayer as one for declaration of exclusive title to the plaint property, for mandatory injunction directing the removal of the superstructure erected by the defendants and for injunction restraining the defendants from interfering with plaintiffs possession.
10. Thus it is seen that the case that is sought to be introduced by the amendment and by addition of parties is entirely different from the one that was put forward in the plaint initially filed. It is not only a case but it is also based on a different cause of action which is. a new one and it would certainly change the entire character and nature of the suit.
11. The court below has rightly dismissed the application taking the view that the remedy of the plaintiffs would be to file separate suit and not to amend the plaint in the present suit. In these revision petitions, learned Counsel for the petitioners contends that the court below is in error in refusing to allow the amendment and implead the parties.
12. Learned Counsel for the petitioners placed reliance on the judgment of the court in P.K. Thimayya v. Krishnamma Naidu 89 L.W. 604 and that case will have no bearing on the present case. Learned Counsel for the petitioners referred to a judgment of the Ganpat Singh v. Sher Bhahadur Singh . That judgment will not apply to the facts of the present case. Learned Counsel for the petitioners relied on the decision in A.I.R. 1976 Karn. 89. The facts of that case were entirely different and the dictum will have no bearing on the present case. Learned Counsel for the petitioners relied on the ruling of She Supreme Court in Gopi Pillai v. Dr. Swamy (1990) 1 L.W. 363. That decision has no bearing on the present case.
13. The petition is governed by the ruling of the Supreme Court in A.K. Gupta & Sons Ltd v. Damodar Valley Corporation , Court holding that in the matter of allowing amendment of pleading the general rule is that a party is not allowed by amendment to set up a new case of a new cause of action particularly when a suit on the new cause of action is barred. It had also pointed out that where the amendment does not constitute the addition of a new cause of action or raise a different case, but it would only be a different or additional approach to the same facts, the amendment should be allowed even after the expiry of the statutory period of limitation. Applying this ruling laid down by the Supreme Court to the facts Of the present case, it is seen that a new cause of action is introduced and entirely a different case is being brought in by the proposed amendment as well as addition of parties, I had already (puffed(sik)) out the inconsistency between the original pleading and the pleading that is sought to be introduced by the present proceedings. In these circumstances, if the dictum of the Supreme Court in A.K. Gupta & Sons Ltd. v. Damodar Valley Corporation , is applied to the facts of this case, the petitioners are not entitled to reliefs prayed for by them. Hence, the court below is right in dismissing the applications."
14. In the present case, the plaintiff has stated all the facts with regard to his title and also his possession and by way of this amendment, he seeks to introduce a new prayer based on the pleadings already brought by him in the plaint. Applying the ratio in the aforementioned decision, the plaintiff is entitled to have the plaint amended and the contention of the learned Counsel for the respondent that the plaintiff is trying to introduce a new cause of action or a new case cannot be countenanced. Even after the closing of the evidence, the plaint was allowed to be amended in the judgment reported in Gopi Pillai v. Dr. Swamy 93 L.W. 317.
15. Therefore, the defendant will not be prejudiced in allowing this amendment and in the circumstances, the order of the lower court refusing to amend the plaint is not in accordance with law. Under the said circumstances, the order of the lower court is set aside and the civil revision petition is allowed without costs.