Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 280 (KER)

T. C. Roy v. Sri. Francis

2001-06-09

A.LEKSHMIKUTTY

body2001
Judgment :- A.Lekshmikutty, J : Dissatisfied with the order in I.A.No.409 of 1999 in O.S.No.523 of 1997 on the file of the court of the Munsiff, Changanacherry, the petitioner has preferred this Civil Revision Petition. The revision petitioner is the plaintiff in O.S.No.523 of 1997. The suit was filed for a decree for permanent injunction restraining the respondent or his men from forcefully entering into the plaint schedule property, from taking possession of any portion of the same, from executing any document in respect of any portion of the plaint schedule property and for other consequential reliefs. Along with the suit, the plaintiff filed I.A. 2111 of 1997 for a temporary injunction of the like nature. I.A.No.409 of 1999 was filed for amendment of the plaint. The averment in the affidavit shows that during the pendency of the suit, the respondent herein demolished the southern boundary of the plaint schedule property. So he filed I.A.No.409 of 1999 under Order VI, Rule 17. The amendment sought for is to incorporate a prayer for fixation of the southern boundary of the plaint schedule property. The amendment application was opposed by the defendant by filing a counter affidavit. The learned Munsiff dismissed the amendment application for the reason that if the amendment is allowed, it would change the nature of the suit. Aggrieved by the order of the lower court, the petitioner filed this Civil Revision Petition. 2. Heard both sides. 3. The only point for consideration is whether there is any reason to interfere with the order passed by the lower court. Originally, the suit was for an injunction simpliciter. It is submitted by the learned counsel for the petitioner that the respondent has demolished the old boundary and at present there is no boundary separating the plaint schedule property and the property of the respondent which lies on the southern side of the plaint schedule property. If the amendment is not allowed, it would cause great hardship and injury to the petitioner. It would create multiplicity of suits also. The submission of the learned counsel for the respondent is that there is no bona fides for the petition. The averment in the plaint shows that there is no boundary separating the property of the plaintiff and defendant. Even then the petitioner preferred a suit for injunction simpliciter only. There is no bona fides in filing an amendment application. The submission of the learned counsel for the respondent is that there is no bona fides for the petition. The averment in the plaint shows that there is no boundary separating the property of the plaintiff and defendant. Even then the petitioner preferred a suit for injunction simpliciter only. There is no bona fides in filing an amendment application. As per the learned counsel for the petitioner, the respondent cannot raise such a contention since in the written statement his specific case is that there is well defined boundary between the property of the plaintiff and the defendant. The specific case of the revision petitioner is that the boundary has been demolished during the pendency of the suit and therefore, it has become necessary to amend the plaint for fixation of the boundary. No prejudice will be caused to the respondent even if the amendment is allowed. 4. The averments in paragraph 5 of the plaint show that the property of the respondent is on the southern side of the plaint schedule property. Originally, there was well defined boundary between the two property but it was demolished by the respondent and there is no boundary at the time of filing the suit. The definite contention of the defendant is that there is separating boundary between the property of the petitioner and the respondent. The present application is filed for prolonging the matter. 5. The purpose and object of Order VI, rule 17 C.P.C is to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and reasonable. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But the court while considering the amendment application should not adopt a hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. In the instance case, the revision petitioner sought for an amendment of fixation of a boundary. The parties are brothers. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. In the instance case, the revision petitioner sought for an amendment of fixation of a boundary. The parties are brothers. There is no dispute with regard to the fact that the southern property of the plaint schedule property belongs to the respondent. The plaintiff would say that the old boundary has been demolished by the respondent whereas the contention is that even now the boundary is in existence. It is true that the petitioner was aware of the demolition of the boundary at the time of filing the suit. The general rule is that a party shall not be allowed by amendment to set up a new case or a new cause of action. The object of courts and rules of procedure is to decide the rights of the parties and not to punish them for their mistake. Here by mistake the petitioner filed the suit for injunction simpliciter. Even if the amendment is allowed, no prejudice will be caused to the respondent. Preventing multiplicity of suits, it is only just and proper to allow the petition. But it cannot be stated that there is no laches on the part of the petitioner. It is to be compensated. In such circumstances and in the interest of justice, I set aside the impugned order and allow I.A.No.409 of 1999 in O.S.No. 523 of 1997 on payment of cost of Rs.1,000/- to the counsel of the respondent within one month from today, failing which this petition will stand dismissed. The C.R.P is disposed of accordingly.