Pitchakaran @ Balakrishnan v. Parvathi Ammal — 1996 DIGILAW 1100 (MAD)

Judgment : 1. The civil revision petition is directed against the order of the Principal District Munsif, Tiruvannamalai in I.A. No. 1017 of 1995 in O.S. NO. 411 of 1987 refusing to allow an application filed by the plaintiff for the amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure. .2. The civil revision petitioner is the plaintiff and the respondent is the defendant. The plaintiff filed the suit for declaration of title and permanent injunction restraining the defendant from interfering with the plaintiff’s possession and enjoyment of the suit property situate at Perumbakkam village in Survey No. 129/2A of an extent of 2.55 acres. The case of the plaintiff is that the property bearing Survey No. 129/2 of an extent of 5.09 acres in the said village belonged to one Natesan and his brother Oomayan, both sons of one Mottayan. After the death of Oomayan, his two sons, Saman and Subramani sold their half share in the said property to the plaintiff’s father Perumal by a sale deed dated 7. 1972. They claimed that they are the owners of the suit property by virtue of a sale deed dated 7. 1972. The defendant in her written statement traced the title of the suit property and contended that one Karuppayee was the owner of 5.09 acres in the survey No. 129/2, and Natesan and Oomayan purchased the property from the said Karuppayee, and there was a partition of the suit property between the brothers, and in the said partition the suit property was allotted to Natesan. According to the defendant, after the death of Natesan, who died intestate, his two daughters Kamala and Muniammal became the owners of the property and they have partitioned the suit property into two equal shares. Muniammal was allotted 1.25 acres and another property of 64 cents in Survey No. 130/3. According to the defendant, the extent given in the sale deed as regards survey No. 129/2 was a wrong measurement showing an extent of 67 cents instead of 1.27 acres. According to the defendant, Munniammal sold the property to Kamala of an extent of 1.25 acres and then Kamala became the owner of 2.55 acres in her own right. According to the defendant, the extent given in the sale deed as regards survey No. 129/2 was a wrong measurement showing an extent of 67 cents instead of 1.27 acres. According to the defendant, Munniammal sold the property to Kamala of an extent of 1.25 acres and then Kamala became the owner of 2.55 acres in her own right. According to the defendant, the balance of 2.54 1/2 acres in S.No. 129/2 was purchased by one Peria Pillai Ammal from Karuppayee Ammal and the said Periya Pillai Ammal sold the property to one Mariyammal by a sale deed dated 13. 1958. The defendant states that Kamala sold the suit property to the defendant by a sale deed dated 14. 1984, and she is in possession and enjoyment of the suit property. 3. The plaintiff, after the filing of the written statement, filed an application for amendment of the plaint stating that after enquiry and going through several sale transactions it became evident that the vendors Saman and Subramani had title only to an extent of 1.27 1/2 acres. After tracing title to the suit property, the plaintiff sought to restrict the relief claimed in the suit property only in respect of the eastern portion of the suit property of an extent of 1.27 1/2 acres and correspondingly, sought the amendment of the plaint. .4. The defendant has raised objections contending that by the amendment sought to be made, the plaintiff is introducing a totally different new case. 5. The trial Judge took note of the facts that the suit was instituted on 6. 1987 and the written statement was filed on 3. 1988 and the plaintiff was examined on 23. 1995 and certain documents were filed and the plaintiff’s evidence was closed on 28. 1995 and when the case was posted for defendant’s evidence, the plaintiff has filed an application for amendment of the plaint. Hence, the trial Judge held that the plaintiff has not acted in a bona fide manner in filing the application after a considerable delay. 6. The lower Court accepted the contentions raised on behalf of the defendant that the nature of the suit, cause of action, boundaries, extent of property and the owner of the property would all change, if the amendment sought to be made is ordered. 6. The lower Court accepted the contentions raised on behalf of the defendant that the nature of the suit, cause of action, boundaries, extent of property and the owner of the property would all change, if the amendment sought to be made is ordered. Hence, considering the nature of the suit and other relevant circumstances, the lower Court rejected the application for amendment of the plaint. 7. Mr. Muthukumaran, learned counsel for the petitioner contended that the nature of the suit is not altered by virtue of the amendment; so also the cause of action is not altered by the proposed amendment. According to the learned counsel for the petitioner, the extent of the property is alone reduced from 2.55 acres to 1.27 1/2 acres in the same survey number. It is also contended that the plaintiff still traces his title to the sale deed executed by Saman and Subramani. 8. Mr. G. Rajan, learned counsel for the respondent simultaneously contended that by virtue of the proposed amendment, the cause of action would completely change. The plaintiff is claiming title to a new property and it is always open to the Court to grant necessary relief with reference to a lesser extent if it is proved that the plaintiff’s vendors had title only to a lesser extent of the property. Hence, he contended that the trial Court has exercised the jurisdiction properly in rejecting the application for amendment of the plaint. .9. I have carefully considered the contentions raised on behalf of the petitioner and the respondent. The law is well-settled as regards the scope of the powers of the Court to order amendment of the plaint. In Vellai Ammal and Others v. Chinnammal and Others, 1994 (I) MLJ 98 , this Court has taken the view that the relief of amendment of the pleadings cannot be denied mainly because of some mistakes, negligence, inadvertence or infraction of rules or procedure. This Court has also taken the view that however late the proposed amendment, may be the amendment may be allowed, if it can be done without injustice to the otherside. 10. This Court has also taken the view that however late the proposed amendment, may be the amendment may be allowed, if it can be done without injustice to the otherside. 10. In Air India v. R.M. Meenakshi by duly constituted Agent N. Sivagami and Others, 1991 (2) MLJ 340 , a Division Bench of this Court has held that the amendment of a plaint not involving fresh or additional relief can be allowed even if there is delay, but, however, no new cause of action should be introduced by way of amendment. In G. Nagamma v. Siromanamma, 1996 (2) SCC 25 , the Supreme Court has held that the plaintiff is entitled to plead even inconsistent pleas. The Supreme Court has taken the view that where by any application for amendment of the plaint, the cause of action is neither changed nor the relief is materially affected, an application for amendment can be allowed. .11. The plaintiff has pleaded in the application for amendment that he seeks to restrict his claim to the suit property to the eastern portion alone in survey No. 129/2A of a lesser extent or area, instead of 2.55 acres in the same survey number claimed in the suit. The defendant has raised an objection that the amendment would introduce a totally different, new or inconsistent case. It has not been pleaded in the counter-affidavit filed by the defendant that the plaintiff, by virtue of the amendment, is claiming relief with reference to the property other than the suit property mentioned in the plaint or the property now-claimed by virtue of the amendment application is not part of the suit property. The trial Judge accepted the contention of the defendant and held that by virt ue of the amendment, the nature of the suit and the cause of action would be completely altered and hence, the amendment should be rejected. The lower Court also held that there is a delay on the part of the plaintiff in seeking the prayer for amendment of the plaint. It is not clear how the nature of the suit is altered by virtue of the proposed amendment. The plaintiff has filed a suit for declaration and for permanent injunction restraining the defendant from interfering with the plaintiff’s possessi on and enjoyment of the property situate in survey No. 129/2A in Perumbakkam village of an extent of 2.55 acres. It is not clear how the nature of the suit is altered by virtue of the proposed amendment. The plaintiff has filed a suit for declaration and for permanent injunction restraining the defendant from interfering with the plaintiff’s possessi on and enjoyment of the property situate in survey No. 129/2A in Perumbakkam village of an extent of 2.55 acres. The plaintiff, by virtue of the amendment, has not changed the nature of the suit at all. The plaint continues to be one for declaration and for permanent injunction. The next reason that has been given by the learned Judge is that the cause of action is also altered by virtue of the proposed amendment. The plaintiff, by virtue of the amendment has not in any way changed the cause of action. The plaintiff still claims title to the suit property by virtue of the deed of sale dated 7. 1992 and it is clear that there is no change of cause of action at all as there is no change in other part of the cause of action pleaded by the plaintiff. The contention of the respondent before the lower Court was that even the vendor of the plaintiff would be changed by virtue of the amendment. This contention is also bereft of force because the plaintiff is still claiming title to the suit property by virtue of the sale deed executed on 7. 1992. Hence, there is no question of change of the owner also. 12. The next contention that was urged before the lower Court was that the boundaries as well as the extent of the property would change by virtue of the proposed amendment. No doubt, it is true, the plaintiff has not mentioned the boundaries of the suit property in the original plaint filed, however, in the proposed amendment, the plaintiff has given the boundaries as given in the sale deed dated 7. 1992. Hence, it cannot be accepted that there will be a change of the boundaries. No doubt, it is true, the plaintiff is claiming a lesser extent of area in survey No. 129/2A in the village but on that account, it cannot be held that the plaintiff is introducing a new cause of action or changing the cause of action or the plaintiff is claiming title to the suit property by virtue of some other source of title. There is neither a change of cause of action nor a change in the nature of the suit. The other reason that has been given by the learned Judge is that there is a delay in filing the application for amendment. This Court in the above two decisions (cited supra) has taken the view that when no new cause of action is introduced, amendment cannot be disallowed on the ground that there is a delay in filing an application for amendment of the plaint. The plaintiff, by virtue of the amendment, is claiming title to the suit property, albeit, to a lesser extent, but his relief is not to an alternative property and it cannot also be said that the plaintiff is taking an inconsistent plea by seeking an amendment of the plaint as it is not the case of the defendant that it was not a part of the suit property originally filed. Viewed from any angle, the reasons given by the trial Judge in rejecting the application for amendment are not sustainable in law. The contention of the learned counsel for the respondent is that it is always open to the Court to grant a decree for a lesser extent of area, if the Court ultimately tends that the plaintiff is the owner of only a lesser extent of area. The power of the Court to grant relief with reference to the correct measurement of the suit property cannot stand in the way of the plaintiff in seeking to amend the plaint to bring to the notice of the Court the correct extent and the exact boundaries of the suit property. It is clear that the claim of the plaintiff over the suit property is to the property situate on the eastern side of the original suit property and by virtue of the amendment, the plaintiff is not claiming relief to some other property other than the suit property. I am of the view that the amendment sought for is bona fide. Consequently, I am inclined to interfere with the order of the learned District Munsif in rejecting the application for amendment of the plaint and accordingly, I allow the civil revision petition. There will be no order as to costs. Consequently, C.M.P. 10532 of 1996 is dismissed.