Suseela, v. Rani, W/O.Late.Ramasamy,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.07.2018

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.R.P.(PD)(MD) No.2346 of 2017 and C.M.P.(MD) No.11305 of 2017

1. Suseela

2. Kumaresan

3. Murugesan ... Petitioners/Respondents 1 to 3/Defendants 1 to 3 -vs1. Rani ... 1st Respondent/Petitioner/Plaintiff

2. Panchayat Board President Paranikkudipatti, Nachandupatti Post, Thirumayam Taluk, Pudukkottai District.

3. Assistant Engineer, Tamil Nadu Electricity Board, Nachandupatti Post, Pudukkottai District.

... Respondents 2 & 3/Respondents 4 & 5 /Defendants 4 & 5 Prayer: Civil Revision Petition filed under Article 227 of Constitution of India praying to set aside the order passed in I.A.No.471 of 2016 in O.S.No.142 of 2011 dated 07.04.2017 by the District Munsif-cum-Judicial Magistrate, Thirumayam, Pudukkottai District and allow this Civil Revision Petition with costs. For Petitioner : Mr.R.Sivalingam For R1 : Mr.N.Balakrishnan For R2 & R3 : No Appearance

O R D E R

The revision petitioners are the defendants in O.S.No.142 of 2011 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirumayam, Pudukkottai District and in the suit, the plaintiff / 1st respondent herein sought for permanent injunction, etc. During pendency of the suit, the plaintiff had filed an application in I.A.No.471 of 2016, seeking rectification of mistake in the relief to read as mandatory injunction, declaration and

recovery of possession by way of amendment and the said application was allowed by the Trial Court. Challenging the said order, the defendants 1 to 3 / petitioners herein are before this Court.

2. It is the case of the revision petitioners that the plaintiff had filed a suit in O.S.No.142 of 2011 before the learned District Munsif-cum-Judicial Magistrate, Thirumayam, Pudukkottai District for permanent injunction and when the case is posted for trial, the plaintiff, having kept quiet for several years, has now come up with the plea of altering the prayer in the suit. It is the further case of the petitioners that the said act of the plaintiff is only to drag on the proceedings and nothing else.

3. The revision petitioners state that it is a settled law that no petition for amendment shall be entertained after commencement of the trial, unless the Court comes to the conclusion that inspite of due diligence, the party could not raise the matter before commencement of trial and in this case, the plaintiff did not aver anything about the due diligence taken by her.

4. Learned counsel for the plaintiff/1st respondent herein has contended that after institution of the suit, the revision petitioners had constructed a RCC roofed building within the suit schedule property and the same came to light after perusing the report of the Advocate Commissioner. Therefore, it is highly inevitable to amend the prayer so as to suit the present infrastructure of the plaint schedule property. It is further contended that no prejudice would be caused to the petitioners by way of such amendment and therefore, the petition is liable to be dismissed.

5. Heard the learned counsel for the petitioners and the learned counsel for the 1st respondent. This Court also perused the material documents placed on record.

6. To decide the issue whether the order of the Trial Court in allowing amendment is right or not, it is useful to refer to the following judgments of the Hon'ble Supreme Court: i) Sampath Kumar vs. Ayyakannu and another, reported in (2002) 7 SCC 559; wherein it has been held as follows: "10. An amendment once incorporated relates back to the date of the suit. However, the doctrine of relation back in the context of amendment of pleadings is not one of universal application and in appropriate cases the Court is competent while permitting an amendment to direct that the amendment permitted by it shall not relate back to the date of the suit and to the extent permitted by it shall be deemed to have been brought before the Court on

the date on which the application seeking the amendment was filed. (See observation in Siddalingamma and Anr. v. Mamtha Shenoy, [2001] % SCC 561.

11. In the present case the amendment is being sought for almost 11 Years after the date of the institution of the suit. The plaintiff is not debarred from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The plaintiff has alleged the cause of action for the reliefs now sought to be added as having arisen to him during the pendency of the suit.

The merits of the averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving the defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in culcating the period of prescriptive title claimed to have been earned by the defendant.

The interest of the defendant can be protected by directing that so far as the reliefs of declaration of title and recovery of possession, now sought for, are concerned the prayer in that regard shall be deemed to have been made on the date on which the application for amendment has been filed.

12. On the averments made in the application, the same ought to have been allowed. If the facts alleged by plaintiff are not correct it is open for the defendant to take such plea in the written statement and if the plaintiff fails in substantiating the factual averments and/ or the defendant succeeds in substantiating the plea which he would obviously be permitted to raise in his pleading by way of consequential amendment then the suit shall be liable to be dismissed. The defendant is not prejudiced, more so when the amendment was sought for commencement of the trial. 13. For the foregoing reasons, the appeal is allowed. The impugned orders of the High Court and the Trial Court are set aside. The plaintiff is permitted to incorporate the pleas sought to be raised by way of amendment in the original plaint foregoing the plea

to the extent given up by him before the Trial Court, However, in view of the delay in making the application for amendment, it b directed that the plaintiff shall pay a cost of Rs. 2,000 (Rupees Two Thousand only) as a condition precedent to incorporating the amendment in the plaint. The prayer for declaration of title and recovery of possession shall be deemed to have been made on the date on which the application for amendment was filed." ii) Usha Devi vs. Rijwan Ahamd and Others, reported in (2008) 3 MLJ 287 (SC);

"I. Though there was lack of due diligence on the part of the plaintiff inasmuch as the wrong description of the suit property was pointedly brought up by the defendants not only in the written statement but also in course of the proceedings of the Case, the prayer for amendment related to correction of description of suit property in plaint deserves to be allowed, in view of the decision in Sajjan Kumar v. Ram Kishan (2005) 13 SCC 89 which is closer on facts wherein it was held that when the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit amendment would create needless complications at the stage of execution, the amendment should be allowed."

7. It is not in dispute that the plaintiff had sought for permanent injunction and in the interregnum period, she sought to amend the suit so as to seek the right prayer in the suit taking into consideration the subsequent development.

8. Learned counsel for the petitioners has submitted that it is impermissible to carry out amendment in the plaint after commencement of the trial. The said submission cannot be accepted, as the provisions of Order 6 Rule 17 CPC would make it clear that the pleadings can be allowed to be either altered or amended at any stage of the proceedings, in case such amendments determine the real questions in controversy between the parties. This Court, in the case of Cholzhavammal vs. Elumalaigounder, reported in 2011 (5) L.W.859, has observed that while considering the application for amendment, it is for the Court to decide on the facts of each case.

9. Considering the overall facts and circumstances of the case, this Court is of the view that if the amendment is not allowed to be carried out, the issue cannot be resolved in the pending suit and there may raise difficulties at the time of execution proceedings and thus, the order of the Trial Court is perfectly valid and needs no interference by this Court.

10. In the result, a) this civil revision petition is dismissed, confirming the order dated 07.04.2017 passed in I.A.No.471 of 2016 in O.S.No.142 of 2011 by the District Munsif-cum-Judicial Magistrate, Thirumayam, Pudukkottai District;

b) considering the fact that the suit is of the year 2011, the Trial Court is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order by conducting the trial on day-to-day basis without giving any unnecessary adjournments to either parties and both the parties are directed to give their fullest cooperation for early disposal of the suit within the time stipulated by this Court as above. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar (CO) // True Copy // Sub Assistant Registrar(CS-IV) To:

1. The District Munsif-cum-Judicial Magistrate, Thirumayam, Pudukkottai District.

+1 CC To MR.R.SIVALAINGAM, Advocate SR. NO.75811 +1 CC To MR.R.SENTHIL KUMAR, Advocate SR. NO.75257 +1 CC To MR.N.BALAKRISHNAN, Advocate SR. NO. 75735 +1 CC TO The Special Government Pleader SR.NO. 75323 C.R.P.(PD)(MD) No.2346 of 2017 26.07.2018 AR TR/RSK/SAR-IV(17.10.2018)5P 6C