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2004 DIGILAW 889 (MAD)

Balasubramaniam & Others v. Natarajan & Others

2004-07-14

S.SARDAR ZACKRIA HUSSAIN

body2004
Judgment :- The petitioners in I.A.No.366 of 2002 and the plaintiffs in O.S.No.281 of 1996 on the file of the District Munsif Court, Palladam are the revision petitioners. The revision is filed against the dismissal of the said petition filed under Order 6 Rule 17 C.P.C. for amendment of the plaint seeking alternative relief of possession. 2. Originally the suit was filed by Ganapathy Gounder for permanent injunction restraining the respondents/defendants from interfering with his possession and enjoyment of the suit property. The suit was filed on 19.1.1995. It appears, the defendants filed written statement that they have been in possession and they have perfected title by adverse possession and further stated that the suit property was purchased by them. During the pendecny of the suit, the plaintiff Ganapathy Gounder died and the plaintiffs 2 to 6, viz., the revision petitioners have been added as his legal representatives. They filed the I.A.No.366 of 2002 seeking amendment of the plaint for the alternative relief of possession inasmuch as the suit is contested by the respondents/defendants that they have been in possession of the suit property and they have perfected title by adverse possession. 3. I.A.No.366 of 2002 was resisted by the respondents/defendants by filing counter in which it is stated that the written statement has been filed as early as in 1998 by the first defendant adopted by the second defendant and the amendment petition is filed very much belatedly and 4 years after filing of the written statement. In the written statement it is also set out that the eastern half share of the southern 1.81 acres in S.F.830/2 was in possession of the first defendant's brother, Krishnaswami. The sale by Krishnaswami to the 2nd defendant in 1979 and in turn by the second defendant to Tamaraiselvi in 1990 have also been mentioned in the written statement. The western half share of the southern 1.81 acres is in possession of the first defendant. The suit was listed for trial on 3.11.2000 and since the plaintiff Ganapathy Gounder died, the legal representatives of the deceased plaintiff have been brought on record and again the suit was listed on 6.12.2001. On the eve of the trial, the plaintiffs 2 to 6 have filed the I.A.No.629 of 2001 to imlead Tamaraiselvi as the third defendant. The suit was listed for trial on 3.11.2000 and since the plaintiff Ganapathy Gounder died, the legal representatives of the deceased plaintiff have been brought on record and again the suit was listed on 6.12.2001. On the eve of the trial, the plaintiffs 2 to 6 have filed the I.A.No.629 of 2001 to imlead Tamaraiselvi as the third defendant. Again the suit after impleading the said Tamaraiselvil, was listed on 14.6.2002 and at this stage the I.A.No.366 of 2002 has been filed for amendment of the plaint seeking the alternative relief of possession. 4. The trial Court by stating that the suit was posted for trial on 14.6.2002 and the amendment petition was filed despite the fact the suit was filed as early as in the year 1995 and was being adjourned for filing written statement and after filing written statement in the year 1998, in which the defendants have stated that they have been in possession and they have perfected title by adverse possession. Further, while stating that in the affidavit filed in support of the amendment petition, it is not mentioned as to when the defendants have trespassed into the suit property and as such, the petition filed nearly 7 years after filing of the suit seeking the alternative relief of possession as sought for is barred by time. Further by also stating that if the proposed amendment is allowed, there will be new cause of action and in that view, the trial Court dismissed the amendment petition. The order is challenged in this Civil Revision Petition. 5. Heard the learned counsel for the revision petitioners and the learned counsel for the respondents. 6. The learned counsel for the revision petitioners/plaintiffs argued that inasmuch as in the written statement it is claimed by the defendants that they have been in possession of the suit property and they have perfected title by adverse possession, I.A.No.366 of 2002, subject matter of this Civil Revision Petition has been filed seeking the relief of possession alternatively and in view of such amendment, no new cause of action. The learned counsel has also brought to the notice of this Court, the decision in the case of Sanjeevi Ammal and 3 others – vs. - Narasimha Naicker and another reported in 2000(III) C.T.C. 389, in which this Court has held:- "Code of Civil Procedure, 1908, Order 6, Rule 17. Amendment of pleading. The learned counsel has also brought to the notice of this Court, the decision in the case of Sanjeevi Ammal and 3 others – vs. - Narasimha Naicker and another reported in 2000(III) C.T.C. 389, in which this Court has held:- "Code of Civil Procedure, 1908, Order 6, Rule 17. Amendment of pleading. Suit for declaration of title and injunction restraining defendants from interfering with plaintiffs possession of suit property. Injunction application was dismissed both by trial Court and appellate Court holding that plaintiff did not prove possession. Plaintiff filed application for amending plaint seeking recovery of property on basis of title. Such amendment meant substitution of one relief for another relief on basis of same facts. Amendment does not result in any change of cause of action or nature of suit. Order rejecting amendment set aside." 7. The learned counsel for the respondents/defendants argued that though clear case was set out in the written statement filed as early as in the year 1998 and in the circumstances set out in the counter, the amendment petition is filed only to delay the proceedings. 8. No doubt the suit was filed on 19.1.1995 and the first defendant filed his written statement adopted by the second defendant in the year 1998 claiming that they have been in possession of the suit property and also perfected title by adverse possession and the petition was filed only at the time of trial and nearly 4 years after filing of the written statement. In the plaint in paragraph VII, it is averred that the deceased first plaintiff was an old man and the defendants are attempting to take forcible possession of the suit property. Therefore, after filing of the suit as such and in view of the fact that the defendants have resisted the suit by filing written statement that they have been in possession of the suit property and perfected title by adverse possession, the plaintiffs wants to amend the plaint seeking the alternative relief of possession on the basis of title. In view of such amendment, there is no new cause of action and the amendment is only substitution of the relief of permanent injunction for another relief which does not result in any change of cause of action or nature of suit. I am in respectful agreement of the judgment of this Court relied on for the revision petitioners. In view of such amendment, there is no new cause of action and the amendment is only substitution of the relief of permanent injunction for another relief which does not result in any change of cause of action or nature of suit. I am in respectful agreement of the judgment of this Court relied on for the revision petitioners. Further considering the facts that the amendment petition is filed only at the time of trial, it is just and appropriate if the petition is ordered on payment of cost. 9. In the result, the order of the trial Court dated 2.7.2002 made in I.A.No.366 of 2002 in O.S.No.281 of 1996 is set aside on condition the revision petitioners/plaintiffs 2 to 6 deposit a sum of Rs.1,000/- towards cost to the respondents/defendants and to the credit of the suit O.S.No.281 of 1996 in the District Munsif Court, Palladam within three weeks from today, failing which, the petition I.A.No.366 of 2002 is to be treated as dismissed. This Civil Revision petition is ordered accordingly. Consequently, the petition in C.M.P.No.11903 of 2003 is closed.