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1995 DIGILAW 649 (MAD)

Thangamuthu v. K. Vijayalakshmi

1995-08-09

SHIVARAJ PATIL

body1995
Judgment :- 1. Heard the learned counsel for the petitioner and the learned counsel for respondent No. 1 who is the contesting respondent. 2. This revision petition is directed against an order dated 9.2.1995 in I.A. No. 572 of 1992 in O.S. No. 1231 of 1984 dismissing the application filed seeking amendment of the plaint. 3. On an earlier occasion the said I.A. No. 572 of 1992 was allowed by the trial court on 4.12.1992. The said order was challenged in C.R.P. No. 402 of 1992. This Court allowed the revision petition on 8.10.1993 and set aside the order passed by the trial court and remanded the case to the trial court for a fresh consideration and disposal in accordance with law. It is thereafter the impugned order is passed by the court below. 3-A. The plaintiffs originally filed the suit for declaration seeking declaration that the plaintiffs have easementary right to discharge the waste water and eaves-drops from their property into a portion belonging to the defendant marked as A-B-C-D in the plaint. The suit was filed in the year 1984. In the said suit a Commissioner was appointed. He made a report. According to the learned counsel for the petitioner, on the basis of the report of the Commissioner, the plaintiffs came to know that the property over which easementary right was claimed really belonged to the plaintiffs, and hence a necessity arose for the plaintiffs to seek an amendment of the prayer so as to seek declaration of title to the property, in respect of which declaration is sought as to easementary right. 4. The court below having heard the learned counsel for the parties, passed the impugned order observing that the plaintiffs having filed the suit in the year 1984 claiming adverse possession, thereafter on measuring the suit property with the help of Surveyor, have sought to amend the plaint claiming title. According to the court below the amendment sought for could not be granted having regard to the nature of the amendment sought for. 5. The learned counsel for the petitioner contended that even though the amendment was sought raising an inconsistent plea or prayer, it could be allowed as such amendment was sought having regard to the subsequent development, viz., in the light of the report of the Commissioner indicating that it is the plaintiffs who are the owners of the property in question. The learned counsel for the petitioner contended that even though the amendment was sought raising an inconsistent plea or prayer, it could be allowed as such amendment was sought having regard to the subsequent development, viz., in the light of the report of the Commissioner indicating that it is the plaintiffs who are the owners of the property in question. He urged that if the amendment as sought for is not allowed it would essentially lead to multiplicity of proceedings and such a course could be avoided. 6. The learned counsel for the first respondent argued in support and justification of the impugned order. He submitted that the amendment which runs contrary to the original pleading, and in other words an amendment to raise inconsistent plea, cannot be permitted. 7. I have considered the submissions made by the learned counsel for the parties. 8. In the translated copy of the impugned order, it is stated that the court below proceeded on the basis that the original claim of the plaintiffs was one on adverse possession. In my opinion, this observation of the court blow is not correct because the original prayer made in the plaint is one for easementary right. 9. Be that as it may, having regard to the application made for amendment and the counter filed by respondent No. 1, and looking to the nature of the amendment of the plaint sought for, it is clear that the amendment of the prayer now sought for is plainly inconsistent with the original prayer. The prayer for declaration made originally is one of easementary right by the plaintiffs, and the plaintiffs now want to amend the prayer in the plaint by seeking a declaration of title over the very property. 10. The learned counsel for the petitioner drew my attention to Order 6, Rule 7, C.P.C. and also placed reliance on two decisions in support of his submission viz., (i) Nair Service Society v. K.C. Alexander and others (A.I.R. 1968 S.C. 1165) and (ii) Akshaya Restaurant v. P. Anjanappa (A.I.R. 1995 S.C. 1498) to contend that in appropriate cases amendments can be allowed under some exceptional circumstances even though the prayer for amendment is inconsistent with the original pleading. 11. The learned counsel for the respondent No. 1 also cited two decisions in support of his submissions, viz., Angammal v. Muthupechiammal and another (89 L.W. 90 = A.I.R. 1976 Mad. 11. The learned counsel for the respondent No. 1 also cited two decisions in support of his submissions, viz., Angammal v. Muthupechiammal and another (89 L.W. 90 = A.I.R. 1976 Mad. 282) and E. Elumalai Chetty v. Noma Moduli and others (99 L.W. 703 = 1986 — II M.L.J. 81). 12. The two decisions cited by the learned counsel for the petitioner is to the effect that amendments can be allowed in certain cases even though they are inconsistent pleas. It is no doubt true, in appropriate cases, amendments can be allowed, but in allowing or refusing the amendment applications, the Court has to essentially bear in mind the facts of each case and the pleadings. It is not disputed that in the case on hand the prayer made in the suit originally was one for easementary right and the amendment now sought is one for declaration of title. 13. The case of Angammal v. Muthupechiammal (supra) is directly on the point. In the said decision it is held that: “An amendment of the plaint seeking a relief not connected with the original prayer at all cannot be allowed. Thus where the plaintiff sought for an easement of necessity and consequential declaration therefor, an amendment seeking for a declaration that he is the owner of the property and for a consequential relief of mandatory injunction to demolish the wall on the disputed pathway cannot be allowed.” The other decision i.e., in the case of “E. Elumalai Chetty v. Naina Mudali and others” (supra) it is held that, The conception of easementary right cannot go with the claim of title and both are contradictory to each other. A title to the property and a right of easement on it are conceptions totally distinct and contradictory to each other. .. A relief claimed on the basis of title is totally inconsistent with the relief claimed on the basis of the other.” 14. Having regard to the facts of the case and the decisions referred to above, I am of the opinion that the impugned order does not call for interference though not for the very reasons stated in the order of the trial court. 15. In the result, the Civil Revision Petition has to be dismissed. Accordingly it is dismissed. No costs.