Prayer/application
Querist :
Anonymous
(Querist) 23 January 2012
This query is : Resolved
Dear Sir(s),
Can prayer in OS be amended before arguments?(to seek police protection)
(The deft has been allowed to lead evidence U/s.CPC Rule 18 , Order 17 R/w 151,where he was already crossed)
Under which provision prayer can be amended, if yes?
Please guide.
Querist :
Anonymous
(Querist) 23 January 2012
modified query
Raj Kumar Makkad
(Expert) 23 January 2012
It can be amended under order 6 Rule 17 read with section 151 of CPC even at the stage you told.
M/s. Y-not legal services
(Expert) 23 January 2012
SUPREME COURT CITATIONS
(2008) 8 MLJ 789 (SC)
North Eastern Railway Administration, Gorakhpur
Vs.
Bhagwan Das (D) by Lrs.
Code of Civil Procedure (5 of 1908), Order 41 Rule 27 and Order 6 Rule 17 - Amendment of
pleadings - Impugned order dismissing application filed by appellant seeking leave to amend written
statement - Said application dismissed on ground that such an application could not be entertained in
second appeal - Appeal - High Court altogether failed to consider application filed by appellant under
Order 41 Rule 27 C.P.C. - Application under Order 6 Rule 17 has not been dealt with in its correct
perspective -High Court was in error in rejecting application under Order 6 Rule 17 on sole ground
that such an application was not maintainable at stage of second appeal - Appeal allowed.
RATIONES DECIDENDI
I. "The question whether looking into the documents, sought to be filed as additional evidence, would
be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the
Court at the time of hearing of the appeal on merits.”
II. "Order 6 Rule 17 C.P. C. postulates amendment of pleadings at any stage of the proceedings.
Amendments should be refused only where the other party cannot be placed in the same position as if
the pleading had been originally correct, but the amendment would cause him an injury which could
not be compensated in costs. "
(2008) 8 MLJ 307 (SC)
Rajkumar Gurawara (Dead) thr. Lrs . Vs.
S.K. Sarwagi & Co. Pvt. Ltd. and Another
Code of Civil Procedure (5 of l908), Order6 Rule 17 - Amendment of pleadings - Application
filed by plaintiff seeking amendment - Impugned order passed by High Court. In spite of clear
information in reply notice prior to filing of suit and specific plea taken in written statement of D-l,
plaintiff did not take steps to get plaint amended suitably. Only during stage of arguments, plaintiff
came up with application seeking amendment of pleadings- Though even after commencement of
trial, parties to proceeding entitled to seek amendment, in light of factual details of present case,
action of plaintiff at stage of argument cannot be permitted - Plaintiff not only failed to satisfy
prescribed conditions but even on merits his claim liable to be rejected - All such relevant aspects
duly considered by High Court - Appeal dismissed.
HIGH COURT CITATIONS
(2008) 8 MLJ 720
K.S. Sripathi, IAS Vs. Central Administrative Tribunal, rep. by
its Registrar, Chennai and Others
(A) ****
(B) All India Services (Death-cum-Retirement Benefits) Rules, 1978, Rule 16-A(4) Scope and
Applicability - Bonafide clerical mistake - Petitioner's D.O.B., as in his application for
recruitment to service, accepted by Central Government Petitioner's stand, his father Central
Government employee in touring job - That his material grandfather admitting him in school,
giving wrong D.O.B., due to inadvertence - Said inadvertence, 'bona fide clerical mistake', if -
Held, petitioner's D.O.B., as mentioned in application, accepted by Central Government - Same
effected in his service book-Strictly applying Rule 16-A(2) & (4) of Rules 1978, and as per
Supreme Court's ruling in Union of India v. C. Ramaswamy AIR 1997 SC 2055: (1997) 4 SCC
647, no bona fide clerical error committed in entering petitioner's date of birth in service records
- Petitioner's father, Central Government employee - Neither petitioner nor his father attempted
to get date of birth corrected until petitioner joined IAS - Petitioner's plea he knew of correct date
of birth only at time marriage proposed, not convincing - Tribunal's order well considered one -
No interference.
(2008) 8 MLJ 449
S. Doss and Another Vs. Vanathayya and Others
Adverse Possession - Plea of - A person who claims right by adverse possession should clearly
spell out as to which area is under his exclusive, open, continuous, uninterrupted possession as owner
and that too hostile to the interest of the real owner- When defendants plead adverse possession as
against the plaintiff, it implies that the defendants admit the title of the plaintiff - To assess a claim of
adverse possession, two-pronged enquiry is required viz. Application of limitation provision thereby
jurisprudentially "willful neglect" element on part of the owner established - Successful application in
this regard distances the title of the land from the paper-owner and Specific positive intention to
dispossess on the part of the adverse possessor effectively shifts the title already distanced from the
paper-owner, to the adverse possessor - Right thereby accrues in favour of adverse possessor as intent
to dispossess is an express statement of urgency and intention in the upkeep of the property - The
"animus possidendi" on owner that they are the owners of the respective shares should have been
found exemplified objectively - Mere possession alone would not constitute adverse possession -
Defendants must say from which date onwards adverse possession started - No proof to show that
defendants exercised any right of exclusive ownership - Plea of adverse possession negatived -
Appeal dismissed.
(2008) 8 MLJ 619
Radha Ammal (Died) and Others Vs. Manthi Reddiar
Code of Civil Procedure (5 of 1908), Order 13 Rule 3 - Petition for rejection of documents in
question tendered in evidence at the time of trial by defendants - Impugned order of Court below
allowing Petition Revision petition - Rejection of documents had arisen only by fact that they are
photocopies and therefore cannot be received in evidence - There is no merit in such a contention -
Documents sought to be produced by defendants have definite relevance to issue involved in suit-
Procedure adopted by Court below in not following salutary directive of Supreme Court as to the
manner of coping with documents which are objected to by a party has not been properly applied -
Impugned order of Court below set aside - Revision petition is allowed.
RATIO DECIDENDI
"The secondary evidence includes among other documents, a document produced by exercise of the
mechanical device that ensures the correctness of the original. The photocopies of the document is
one such procedure and if a valid ground is given for acceptance of secondary evidence, then there
cannot be any objection to the reception of photocopies of documents. If the objection is that there is
no basis for not producing the original or that the so called original is not in the custody of the
plaintiff himself, then it is a matter that has to be brought out in the cross-examination of the witness
and the reception of the documents themselves cannot be prohibited. "
(2008) 8 MLJ 647
Thayammal Vs. Ponnusamy and Another
(A) Indian Succession Act (39 of 1925), Section 63(c) - Indian Evidence Act (1 ofI872),
Section 68 - Proof of Will- Suspicious circumstances - Trial Court made a mountain out
of a molehill, by accepting the contradictions concerning allied matters and not the
evidence relating to actual execution of the Will and attestation - Records show that
propounder of the Will proved due execution and attestation - Courts should not attach
undue importance to imaginary suspicions and proceed on the footing that the Will is an
invalid one - Will dated 17.10.1989 - Witnesses examined during 1995 more than 5 years
after the emergence of the Will- Due allowance should be given for lapse of memory on
part of witnesses.
(2008) 8 MLJ 422
Polyene Film Industries Ltd., Chennai Vs.
United India Insurance Co. Ltd., Chennai and Another.
Insurance Policy - Validity of - Appeal against dismissal of suit for recovery of money - Loss
arising from damage to the consignment - Insurance policy issued on 12.9.1999 - General
presumption is that risk commences from the date of issuance of policy till the completion of the
transaction - Damage noticed on the date of inspection - Cargo was handed over to the agent of the
second respondent in a good condition Object of the policy for insuring the goods is to save from the
damage - Conclusion of the single judge that the insurer is not liable to pay the damage is without any
appreciation of the insurance policy - O.S.A. allowed.
(2008) 8 MLJ 609
V.S. Paulraj Vs. Chairman, Central Board of Trustees, rep. by
the Secretary/Central Provident Fund Organisation, New Delhi and Another
(A) Code of Civil Procedure (5 of l908), Section 34 - Award of interest with
reference to arrears of salary - Interest claimed at the rate of l8% p.a. but
awarded only 8% p.a.- For no fault of the applicant, he had been made to
face departmental proceedings and denied promotion and other benefits -
Where the applicant has spent most part of his service only in litigation
commenced at the instance of the respondent which was found to be
unjustified, when his stand stood vindicated by favourable orders before the
Court, there will be nothing wrong in award of interest.
(2008) 8 MLJ 410
Thillai Ganapathy Vs. Kasinathan and Another
Code of Civil Procedure (5 of l908)- Transfer of suit - Petition seeking transfer of case O.S.
No. 134 of2003 to be tried along with suit o.S. No. 43 of 2006 - Impugned order dismissing petition
on ground that relief sought for in both suits are entirely different and that there is no issue to be
decided jointly - Revision - Litigating parties in both suits are one and same - Subject matter involved
in both suits are inter-twined and over lapped - In order to avoid conflicting plurality of decisions,
petition is to be allowed in interest of justice - Revision petition is disposed of.
RATIO DECIDENDI
"In case where the litigating parties in both the suits were one and the same and the subject matter
involved in both the suits apart from the common nature, facts being inter-twined and overlapped, the
possibility of conflicting decisions if the suit were tried separately could not be totally ruled out. The
involvement of common question of law and fact is not the only ground authorizing the transfer of
suits, but even when the Court opines that if the facts inter-twined with the different causes of action
are separated and suits tried independently would result in conflicting decision, it has power to allow
transfer. "
(2008) 8 MLJ 299
R. Elango Vs. K. Dhanasekaran and Others
Indian Evidence Act (1 of 1872), Section 45 - Comparison of signature - Opinion of handwriting
expert- If the request for comparison of signatures, is made before commencement of trial, the request
shall be accorded - Party may state his/her own choice of expert - Opinion of handwriting expert is of
weak value and it shall be considered along with other evidence and materials An experts' opinion
does not impinge the power of the Court to compare the signatures - Expert should be summoned to
Court and he shall take photographs for comparison - It is not lawful to send the doc uments away
from the custody of the Court – CRP’s allowed.
RATIO DECIDENDI
"If a party to a suit seeks opinion of the handwriting expert, before commencement of trial, the same
shall be accorded. Party can suggest his choice of expert. Expert opinion is of weak evidentiary value
and can be considered along with other evidence. An expert never supplants the view of the Court.
Original documents should not be sent out of the custody of the Court. Expert can be summoned to
take photographs for comparison. "
(2008) 8 MLJ 355
N. Shyamala and Others Vs. Suriyan Benefit Fund (Madras) Limited
by its Secretary Mr. J. Radhakrishnan, Chennai
Code of Civil Procedure (5 of 1908), Order 7 Rule lIed) - Transfer of Property Act (4 of 1882),
Section 67 - Right to foreclosure Decree obtained for redemption of the mortgaged property by the
mortgagor Mortgagee has no right to file suit for foreclosure and obtain a decree after the mortgage
money has become due to him - But appeal has been preferred against the decree for redemption -
Decree for redemption of mortgage has not reached finality There is no bar under Section 67 of the
Act Plaint cannot be rejected - Application dismissed.
The mortgagee has a right to file a suit for foreclosure and obtain a decree after the mortgage money
has become due to him but, such a suit for foreclosure cannot be laid if there is any contract to the
contrary. Further, such a suit will not lie even when a decree has been obtained for redemption of the
mortgaged property by the mortgagor or the mortgage money has already been paid or deposited.
(2008) 8 MLJ (Crl) 1303
Romaiah Vs. State rep. by its Inspector of Police, All Women Police Station,
Chintadripet Police Station, Chennai - 600 002 .
Indian Penal Code (45 of 1860), Section 498 A - Dowry Prohibition Act, (28 of 1961),
Section 8-B - Implementation of provisions relating to Dowry Prohibition and matrimonial matters
-Petitioner beaten up in All Women Police station who had an order of anticipatory bail with him -
Allegations against police officers in All women Police stations dealing with cases - Unnecessary
arrest of husbands and their relatives - Establishment of All Women Police stations - Purpose of
Legislations -When arrest to be made and when not clarified by Apex Court - Mis use of provisions
termed as 'legal terror ism' - Because of inhuman attitude chances for conciliation and reunion affected
- Role of dowry prohibition officers - Petitioner to proceed against the police officer by
approaching appropriate forum if he is so advised - Suggestions to Police Department /Government
given.
RATIO DECIDENDI
L "Police to handle matters relating to matrimonial offences with utmost tenderness, care and caution
so as to reconcile the warring couples so that they may reunite and lead a congenial life irrespective
of the fact that one of them preferred complaint against the other, dragging him to the police station.
Police must understand that marital disputes, where there is no evidence of physical harm or threat to
life or limb, are not crimes at all and in such cases, they are not supposed to arrest anyone or to
randomly summon the family members under the guise of enquiry. Suggestions given to Police
Department/Government while dealing with matrimonial offences."
II. "Though an offence under Section 498-A, Indian Penal Code, 1860 is cognizable, non-bailable and
non-compoundable, it does not mean that police can with closed eyes, make arrest of all family
members just to drag them to police station when there is no basis at all to undertake such an
exercise. The use of word 'may' as mentioned in Section 2(c) and 41 of Code of Criminal Procedure,
1973 indicates that a police officer need not arrest a person mechanically in all cases. When arrests
to be made and when not to be made is clarified by Apex Court and are to be followed."
-tom-
