Must leave to amend a plaint under Order VI Rule 17 of the Code of Civil Procedure, 1908 be refused where no bona fide reason is given for the earlier non-inclusion?

This Civil Revision Petition is filed assailing the order passed by the learned Additional District Munsif at Chidambaram in I.A.No.590 of 2021 in O.S.No.121 of 2013 dated 23.08.2022, rejecting to amend the plaint to include two items of the properties to the Schedule.

The brief facts of the case is as follows: Originally, the said suit in O.S.No121 of 2013 on the file of the Additional District Munsif Court, Chidambaram was filed by the petitioner / plaintiff for partition of the schedule mentioned properties against the respondents 1 to 8 /Defendants. The averments made by the petitioner in the plaint is that the 1st respondent married the 4th respondent in the year 1974 and that the petitioner, 2nd & 3rd respondents were born out of the said wedlock. The suit schedule properties originally belonged to one Pazhani Padaiyachi. After his death, the plaintiff and the defendants 1 to 3 are enjoying the properties as joint family properties.

Subsequently, the 1st defendant filed his written statement, wherein he specifically denied the marriage between the 1st & 4th defendants. He also denied that the schedule properties belonged to the Pazhani Padaiyachi by explaining whose names appear on the schedule properties and how did they acquire the rights of the schedule properties. The 4th respondent / 4th defendant supported the case of the petitioner / plaintiff. The 5th respondent / 5th defendant filed written statement which was adopted by 6th and 8th respondents. They all have taken the same defence as that of the 1st defendant.

While so, the petitioner / plaintiff filed I.A.No.590 of 2021 under Order XVI, Rule 17 and Section 151 of C.P.C., to amend the plaint by including two properties as Item 8 & 9 in the schedule and also to include paragraph 8 & 9 in the plaint. The petitioner has stated in the supporting affidavit of the amendment petition that at the time of presentation of the plaint, he did not know the survey numbers of the proposed properties, which are sought to be included in the plaint. It is averred that recently, he got some documents and also collected survey numbers from the Village Administrative officer. He further submitted that the 1 st respondent has purchased the property comprised in Survey No.36/11B1 measuring 0.33 cents from one Manickam in the name of the 7th & 8th respondents on 16.08.2010, which is sought to be included as Item 8. It is also averred that the 7th and 8th respondents do not have any job, and therefore, they do not have any independent income to purchase the said properties. The said property was purchased in the name of 7th and 8th respondents out of the funds of joint family properties by the 1st respondent. He also sought to include three cents of land comprised in S.No.27/16, which was assigned by the Government in favour of the petitioner, as 9th item in the schedule. He sought for allowing the amendment petition, to avoid multiplicity of proceedings and complete adjudication.

The contesting respondents opposed the petition and disputed the relationship between the petitioner and the 1st respondent. The contesting respondents submitted that the petitioner does not have any right in the self-acquired properties of the 7th and 8th respondents. The intention of the petitioner is to prolong the suit as far as possible, therefore, the petitioner had filed a petition in IA.No.419 of 2021 to amend the plaint by including the property which was dismissed as not pressed and again, filed the present petition in I.A.No.520 of 2021 with the same relief. Therefore, prayed for dismissal of the petition.

The learned Additional District Munsif at Chidambaram considered the pleadings of the parties and came to the conclusion that without any specific averments as to how the properties have been purchased and how the properties became part of the joint family properties, the petitioner has filed this petition, the suit is pending for the past eight years without any progress, the petitioner has been filing petition one after another and even for the second item of the property, he did not give any reason for not including the same when the plaint was presented. Hence, the Learned Judge dismissed the petition.

Heard the learned counsel for the petitioner and the respondents and pursued the material available on record.

The learned counsel for the petitioner submitted that at the time of filing the plaint, the petitioner did not know the survey numbers and the details of the properties, and he could not collect the documents. Immediately, after collecting the same and knowing the survey numbers from the Village Administrative Officer, he filed the amendment petition. He further submitted that since the suit is for partition, the veracity of the title should not be verified at the time of amendment petition and the same can be decided only after trial. He also submitted that the Court should be liberal in allowing the pre-trial amendments. Admittedly, the trial has not been begun.

In support of his case, he also relied upon the judgement in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited made in Civil Appeal No.5909 of 2022 dated 01.09.2022 and submitted that the power of the Court to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of the justice. He also relied upon a particular portion of the said judgement, which reads as follows:- 29. In Pankaja & Anr. v. Yellappa (dead) by lrs. & Ors., (2004) 6 SCC 415, this Court held that it was in the discretion of the court to allow an application under Order VI Rule 17 of the CPC seeking amendment of the plaint even where the relief sought to be added by amendment was allegedly barred by limitation. The Court noticed that there was no absolute rule that the amendment in such a case should not be allowed. It was pointed out that the court's discretion in this regard depends on the facts and circumstances of the case and has to be exercised on a judicial evaluation thereof. It would be apposite to notice the observations of this Court in this pronouncement in extenso. The principles were laid down by this Court thus:

In the said judgment, the Hon’ble Supreme Court has held as follows:- “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. (vi) Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)

The learned counsel also relied upon the judgement of the Honourable Supreme Court in the case Dinesh Goyal @ Pappu Vs. Suman Agarwal (Bindal) & Others reported in 2024 INSC 726, which followed the judgment in Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited referred supra.

By relying upon the above judgments, he submitted that the Court should adopt a liberal approach in granting leave to amend the pleadings.

The suit was filed in the year 2013. At the time of filing the plaint, the petitioner included seven items of the properties. Admittedly, the plaintiff has not filed any title deeds to show that the properties originally belonged to Pazhani Padaiyachi, except a patta in the name of Pazhani Padaiyachi and the 1st respondent, but, he alleges that all the properties belong to Pazhani Padaiyachi. This fact has been strongly disputed by the contesting respondents by explaining to whom the schedule properties belong and how the respective respondents acquired the schedule properties, more particularly, the 3rd item of the property was settled by the said Pazhani Padaiyachi to and in favour of the petitioner and the 2nd respondent herein on 31.07.1975 by way of settlement and granted life estate to the 1st respondent. These facts are not disputed by the petitioner by filing reply statement.

The petitioner alleges that the proposed 8th item of the property belongs to the joint family and he is in joint possession of the proposed properties. If at all, the proposed 8th item is of the joint family property, the petitioner would definitely have knowledge of its existence as to its survey number and other details, as admittedly his property is situated adjacent to the proposed 8th item. When it is his own case that he knew about the proposed properties at the time of filing the plaint, no sufficient cause has been shown for failure to find the detail of the property at the earliest point of time. Instead, the petitioner seeks for amendment belatedly after a lapse of nearly 8 years.

One another fact has to be considered. The petitioner filed the plaint only against respondents 1 to 4. When the 1st respondent derived the relationship, he included the respondents 5 to 8 and alleged that the 7th & 8th respondents are illegitimate children. Hence, burden is heavily on the petitioner to show the proposed Item 8 of the property is a joint family property and there must be a foundation in the plaint to attract the same, especially, when he knew there are properties available. In the plaint there is no averment to the effect that there are properties available and will include them after knowing the details.

Since the Trial Court have observed that the petitioner has not produced the assignment order, this Court directed the petitioner to produce the assignment order. The petitioner produced the same before the Court and verifying the same, the assignment has been granted in favour of the petitioner by proceeding dated 18.09.2009. Admittedly, the suit was filed in the year 2013. The petitioner has not given any reason for non-inclusion of the property, which is sought to be included as Item No.9, which admittedly stands in his name. The subject property has not been attempted to be included in the earlier amendment petition as rightly found by the Trial Court. The said fact, prima facie has shown that the plaintiff has not come with clean hands, as held by the Trial Court. The judgement of this Court in Solavaiammal Vs. Ezhumalai Goundar reported in 2012 (1) CTC 159 referred to Revajeetu Builders and Developers vs. Narayanasamy and sons and others, 2010 (1) MWN (Civil) 460 (SC) is extracted hereunder: “8. In the judgment in Revajeetu Builders and Developers Vs. Narayanasamy and sons and others, 2010 (1) MWN (Civil) 460 (SC) : 2009 (10) SCC 84, the Apex Court after analysing critically both the English and Indian cases on the point, deduced the following basic principles to be taken into consideration by the Courts while allowing or rejecting the Application for amendment: (i) whether the amendment sought is imperative for proper and effective adjudication of the case; (ii) whether the Application for amendment is bona fide or mala fide; (iii) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (vi) as a general rule, the Court should decline amendments if a fresh Suit one the amended claims would be barred by the law of limitation on the date of Application. “In fact, the Apex Court held that the Courts have very wide discretion in the matter of amendment of pleadings, but Court’s powers must be exercised judiciously and with great care. While deciding Applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments.”

It is true that the Court shall take a liberal view in allowing the amendment of plaint under Order VI, Rule 17 of CPC, especially, in partition suits to include the properties by way of amendment to avoid multiplicity of proceedings, for the effective and proper adjudication of the partition suit. But, at the same time, the petitioner cannot act as per his whims and fancies so as to include the schedule property one after the other by filing the amendment petitions, is rightly held by the Trial Court. On relying upon the said judgement, this court finds that the petitioner has not provided any sufficient reason of bona fide intention for filing the petition after a lapse of 8 years and his failure to mention the proposed properties in the plaint even when its existence was within his knowledge, which as per this Court, a dishonest one. Therefore, such amendment is allowed, it will cause prejudice or injustice to the respondents 7 and 8. The judgments relied on by the petitioner in the cases of Life Insurance Corporation of India and Dinesh Goyal @ Pappu also held the amendment can be allowed if it does not result in injustice to the other side. As held by this above judgment, the present amendment will cause injustice to the respondents, therefore, the said judgments will not come into the aid of the petitioner.

It is relevant to refer the judgement of this Court in 2013 (1) MWN (Civil) 613 (Palanisamy Vs. Sellammal and Others) dated 13.02.2013. The relevant portion of which is derived as follows:- “6.It cannot be gainsaid for an amendment of plaint there must be categorical, effective and efficacious pleading to be projected by the Party/Litigant concerned. In the instant case on hand, even though amendment of plaint sought under Order 16 Rule 17 of the Civil Procedure Code, ordinarily can be allowed by a Court of Law by taking a liberal view in the matter on the basis of the facts and circumstances encircling the case which float on the surface, this Court comes to the conclusion that the Petitioner/Plaintiff in I.A.No.2049 of 2010 has not come out with definite/ specific pleadings as to why he has left out the two items of property (at earlier point of time) purportedly to be included by means of amendment being sought by him. For want of inaction, due diligence and bonafideness, this Court is not inclined to allow I.A.No.2049 of 2010 in the interest of justice. Furthermore, on going through the order of the trial Court in I.A.No.2049 of 2010, this Court does not find any impropriety or illegality in the application being dismissed by the trial Court. Consequently, the Civil Revision Petition fails.”

As held in the above case, the petitioner has filed the amendment petition after eight years without providing any reason for non-inclusion of the two items at the time of presenting the plaint, and specifically non-inclusion of his own property, which was assigned by the Government in the year 2009. Therefore, as far as this case is concerned, this Court feels that there is no infirmity in the order of the Trial Court in not allowing the amendment petition.

In the result, this Civil Revision Petition is dismissed, confirming the order in I.A.No.121 of 2023 dated 23.08.2022 passed by the learned Additional District Munsif at Chidambaram. 23-09-2026 KKN