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2002 DIGILAW 575 (KAR)

KUMAR v. KOTHANDAPANI

2002-09-17

B.PADMARAJ

body2002
B. PADMARAJ, J. ( 1 ) HEARD the arguments of the learned Counsel for the petitioners and carefully perused the case papers including the impugned order made by the Trial Court. ( 2 ) THE petitioners herein are the defendants before the Trial Court, while the respondent is the plaintiff. The respondent-plaintiff has filed a suit for the relief" of permanent injunction in respect of certain property alleging that the suit property belongs to him and that the petitioners herein have no manner of right, title or interest thereover, but, in spite of that they were making hurried attempt to put up construction in the suit property. On these averments made in the plaint, the respondent- plaintiff sought for the relief of permanent injunction against the petitioners herein. During the pendency of the suit, the respondent-plaintiff filed an application in I. A. No. VII under Order 6, Rule 17 of the CPC seeking additional relief of mandatory injunction on the ground that the petitioners herein have put up certain construction in the suit property during the pendency of the said suit. The said application of the respondent -plaintiff having been allowed by the Trial Court, the instant revision petition has been filed by the petitioners. ( 3 ) LEARNED Counsel for the petitioners has vehemently contended before me that the proposed amendment will change the nature of the suit inasmuch as the suit brought by the plaintiff originally was for the relief of permanent injunction, which is now sought to be changed for mandatory injunction by the proposed amendment. She also contended that the petitioners have put up construction pursuant to an order of temporary injunction granted in their favour in the suit filed by the petitioners in respect of their property. She, therefore, contended that the impugned order made by the Trial Court warrants interference in revision by this Court. ( 4 ) IT is no doubt true that the respondent-plaintiff had initially sought for the relief of permanent injunction, but, subsequently by the proposed amendment, he also sought for the relief of mandatory injunction on the ground that during the pendency of the suit, the petitioners have put-up certain construction over the suit property. The said amendment appears to have been necessitated on account of some subsequent event, which took place during the pendency of the suit. The said amendment appears to have been necessitated on account of some subsequent event, which took place during the pendency of the suit. That being so, in order to avoid the multiplicity of suits, the respondent-plaintiff thought it proper to amend the plaint suitably which cannot be said to be either improper or incorrect. Even otherwise, it will not in any way change the nature of the suit. Furthermore, a perusal of Section 115 of the CPC would show that this Court should not interfere with each and every interlocutory order passed by the Trial Court so that the trial of a suit could proceed speedily and that only an interlocutory order coming under clause (a) or (b) of the proviso would be entertained by this Court. There is no doubt that the impugned order made by the Trial Court being an interlocutory order is revisable under Section 115 of the CPC. But, then, for exercising the powers under this section by this Court, the impugned order must satisfy one of the conditions mentioned in clauses (a) and (b) of the proviso to sub-sections (1) and (2) of the explanation to section 115 of the CPC (unamended ). The proviso to sub-section (1) of section 115 of the CPC puts a restriction on the powers of this Court inasmuch as this Court shall not under this section vary or reverse any order made or any order deciding an issue in course of a suit or other proceeding except where the order made would have finally disposed of the suit or other proceeding or the said order would occasion a failure of justice or cause irreparable injury to a party against whom it is made. Under clause (a), this Court would be justified in interfering with an order of the subordinate Court, if the said order finally disposed off the suit or other proceedings. The order in question, by which the amendment is allowed by the Trial Court, could not be said to have been finally disposed of the case and therefore, it would not come under clause (a ). Now, the question is whether the order in question has caused failure of justice or irreparable injury to the petitioners. The order in question, by which the amendment is allowed by the Trial Court, could not be said to have been finally disposed of the case and therefore, it would not come under clause (a ). Now, the question is whether the order in question has caused failure of justice or irreparable injury to the petitioners. It is almost inconceivable as to how a mere amendment of pleadings could possibly cause failure of justice or irreparable injury to any party after all the amendment of pleadings would not amount to decisions on the issues involved in the suit. They would only serve the advance notice to the other side as to the plea, which a party might take up. Hence, one cannot envisage a situation where the amendment of pleadings whatever be the nature of such amendment would even remotely cause failure of justice or irreparable injury to any party. In the instant case, as I have already stated, the necessity for amendment of the plaint arose, according to the respondent -plaintiff, when the petitioners put up certain construction over the suit property during the pendency of the suit. Therefore, the amendment sought for by the respondent-plaintiff was intended only to avoid the multiplicity of proceedings. That being so, it does not in any way prejudice the rights of the petitioners herein. After the amendment of the plaint, the petitioners would get an opportunity of filing written statement and they would be able to raise all the defences. It cannot, therefore, be conceived of a situation that the proposed amendment, if allowed, would cause irreparable injury or failure of justice as it is always open to the petitioners to file the additional written statement, if any, and thereby, they would be able to raise all such defences which are open to them in law. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Prem Bakshi and others v Dharam Dev and Others, wherein, while dealing with a similar question, the Hon'ble Supreme Court has clearly observed that the order allowing amendment cannot be interfered with by the High Court in revision. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Prem Bakshi and others v Dharam Dev and Others, wherein, while dealing with a similar question, the Hon'ble Supreme Court has clearly observed that the order allowing amendment cannot be interfered with by the High Court in revision. ( 5 ) THEREFORE, having given my anxious consideration to the entire matter in issue, I am of the view that the impugned order made by the trial Court is not revisable by this Court in exercise of its powers under section 115 of the CPC. Hence, this revision petition filed by the petitioner is liable to be dismissed and it is accordingly dismissed. --- *** --- .