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2005 DIGILAW 1263 (MAD)

P. Poondia Gounder v. Ramasamy Udayar & Others

2005-08-03

R.BANUMATHI

body2005
Judgment :- This Civil Revision Petition is directed against the order dated 11.12.2001 passed by the Principal District Munsif, Namakkal in I.A.No.803 of 2000 in O.S.No.49 of 1999, dismissing the Amendment Application filed under Order VI Rule 17 C.P.C. The Plaintiff is the Revision Petitioner. 2. O.S.No.49 of 1999:- According to the Plaintiff, the Suit Property in S.No.46/1, 47/1 in Kalappanayakkan Patti Village belongs to the Plaintiff. The Plaintiff purchased the Suit Property from one Ayyammal by a Sale Deed dated 20.03.1973 for a sum of Rs.28,250/-. The Plaintiff is in enjoyment of the Suit Property. The Plaintiff’s property is on the Southern Side. His property is shown to be "P”, "P1” and the Well is "W1” in the plaint Plan. Case of the Plaintiff is that Cart Track leading from Kalappanayakkan Patti and Kollimalai Main Road proceeding in S.No.46/4 and 46/3 reaches the Plaintiff’s House marked as "H” in the Plaint Plan. According to the Plaintiff, the Plaintiff is in enjoyment of the Pathway as of right and also by easementary right. The Plaintiff is using the Pathway for taking the Cart, Tractor and Trailer and other vehicles. Defendants 1 and 2 who are owning the lands on the Southern Side asked the Plaintiff to sell away the Properties, which the Plaintiff declined. Hence, the Defendants have become inimical to the Plaintiff and causing disturbance to the Plaintiff’s possession and enjoyment of his Properties. 3. Further case of the Plaintiff is that on 30.01.1998 on the North Eastern Side, the Defendants have obliterated the Pathway to a breadth of 1’2” to a length of about 300 feet. The Plaintiff has no other way excepting the path "ABCHFGILJ” to take his Cart, Tractor, Trailer and other Vehicles. Hence, the Plaintiff has filed the Suit for Declaration and Permanent Injunction restraining the Defendants from preventing the Plaintiff from using the Suit Pathway. The Plaintiff has also filed the Suit for Mandatory Injunction, directing the Defendants to restore "AXY” portion as the Pathway. 4. Denying the allegations in the Plaint, the Defendants have filed the Written Statement contending that the Plaintiff has no right to take the Cart and Cattle. The Plaintiff wanted to widen the Suit Pathway to take Tractor, Trailer and Lorry, which the Defendants have refused. Hence, the Plaintiff has filed the vexatious Suit and he is not entitled to any relief. 5. The Plaintiff wanted to widen the Suit Pathway to take Tractor, Trailer and Lorry, which the Defendants have refused. Hence, the Plaintiff has filed the vexatious Suit and he is not entitled to any relief. 5. The Suit was posted in the Special List. At that stage, the Plaintiff has filed I.A.No.803 of 2000 under Order VI Rule 17 C.P.C to amend the Plaint. According to the Plaintiff, certain mistakes have crept in, in the description of the properties and in the Plaint averments. According to him, on the North of LJ Portion, mistake has crept in stating that the property belongs to one Muthusamy Gounder. According to the Plaintiff, on the South of XY, the land belongs to the First Defendant in S.No.114/3 of Thirumalaigiri Village, on the Northern Side of S.No.114/3, the Defendants have cut and reduced the Pathway. On the Northern Side of "LJ” portion, the property in S.No.114/2B belongs to one Ramasamy Gounder (mistaken stated as Muthusamy Gounder) of Kalappanayakkan Patti. Further West of S.No.114/3 is the property belonging to the Defendant in S.No.46/6. Further West of it is S.No.46/5, which is "VELLAVARI”. When the Commissioner was about to visit the Suit locality, the Defendants have obliterated portions of the Suit Pathway and planted Coconut Saplings and also planted stones. Hence, the Plaintiff has filed the Amedment Application to amend the Plaint averments. 6. Resisting the Application for Amendment, the Defendants have filed the Counter Statement, denying planting of Coconut Saplings and also Stones. Only to prevent the Defendants from enjoying their paddy land, the Suit has been filed and the Amendment Application has been belatedly filed. 7. Upon careful consideration of contentions of both the parties, the Trial Court dismissed the Amendment Application mainly on the ground that the Application has been filed belatedly when the Suit was posted in the Special List. Pointing out that the Commissioner’s Report had been filed even in November 1999, learned District Munsif held that the Amendment Application has been filed nearly one year after the filing of the Commissioner’s Report. The learned District Munsif dismissed the Amendment Application mainly on the ground of delay and laches. 8. Aggrieved over the order of dismissal of the Amendment Application, the Plaintiff has preferred this Civil Revision Petition. The learned District Munsif dismissed the Amendment Application mainly on the ground of delay and laches. 8. Aggrieved over the order of dismissal of the Amendment Application, the Plaintiff has preferred this Civil Revision Petition. Learned counsel for the Revision Petitioner has placed reliance upon number of decisions and contended that the Amendment Application could be allowed at any stage. It is contended that the delay or laches cannot be the reason to decline the Amendment. It is further submitted that when the Trial has not been commenced and when the Suit is posted in the Special List, the Plaintiff cannot be faulted for not filing the Application earlier. 9. Drawing the attention of the Court to the proposed Amendment, learned counsel for the Revision Petitioner has submitted that the Amendment with respect to the description of the property would not change the nature of the Suit. It is also submitted that the proposed Amendment sought for is only in sequel to the subsequent events and the Trial Court ought to have taken a lenient view in allowing the Application to amend the Plaint averments and also seek a relief of Mandatory Injunction. 10. The Respondents have been served with Notice, but they have not entered appearance. Their names have been printed in the Cause List. The contentious points urged by the Defendants before the Trial Court have been taken into consideration for disposal of this Civil Revision Petition. 11. Upon consideration of the contentions of the Revision Petitioner/Plaintiff, the Impugned Order and other materials available on record, the following points arise for consideration in this Civil Revision Petition: i. Whether the Revision Petitioner/Plaintiff is right in contending that the Amendment in the description of the property and the alleged obliteration of the Pathway does not introduce a new case? ii.Whether the Impugned Order suffers from material irregularity warranting interference? 12. Though the Description of the Plaint Schedule Properties refers to the Plaintiff’s property in S.No.46/1 and 47/1, the dispute is mainly related to the Suit Cart Track alleged to be an extent of 6 cubit. The Suit Pathway is stated to be "ABCHFGILJ”. The Plaintiff claims right and easement right over the Suit Pathway. Alleging that he has right to take his vehicles including Tractor and Trailer. Even at the time of filing of the Suit, it has been alleged that the Defendants have destroyed the pathway portion "AXY”. The Suit Pathway is stated to be "ABCHFGILJ”. The Plaintiff claims right and easement right over the Suit Pathway. Alleging that he has right to take his vehicles including Tractor and Trailer. Even at the time of filing of the Suit, it has been alleged that the Defendants have destroyed the pathway portion "AXY”. In the Plaint, it has been alleged that the Pathway is proceeding in S.No.46/6, 46/5, 46/4 and 46/3 of Kalappanayakkan Patti Village and then reaching the Plaintiff’s house and the land. 13. By the proposed Amendment, the entire description of the property is sought to be changed. Originally in the Plaint Plan, on the Northern Side of S.No.46/6, the land of Muthusamy Gounder and Natesan has been shown. By the proposed Amendment, the entire description of the Northern Property is sought to be changed. On the South of the Suit Pathway just on the Western side of the Main Road, it is stated that the property belongs to D-1 in S.No.114/3 of Thirumalaigiri Village. Thus, the earlier description of S.No.46/6 of Kalappanayakkan Patti Village is sought to be changed as S.No.114/3 of Thirumalaigiri Village. Likewise, on the Northern Side, instead of the land of Muthusamy Gounder, the land of Ramasamy Gounder in S.No.114/2B of Thirumalaigiri Village is sought to be introduced. Further West of S.No.114/2B, the land of the Second Defendant in S.No.39/5 is sought to be introduced. Further on the Southern Side of S.No.114/3, S.No.46/6 is stated. Further, West of 46/5, S.No.46/5 "VELLAVARI” is stated. The proposed Amendment changing the Survey Number and also the Village changes the entire substratum of the case. The Defendants are forced to face entirely a new case. The proposed Amendment is not a change in the mere description of the property, but changes the entire basis of the case. 14. Apart from changing the Survey Number and the description of the properties, two more new Amendment – Mandatory Injunction are sought to be introduced. According to the plaintiff, prior to the first visit of the Advocate Commissioner on 25.01.1999 in the portion of D-1, the Defendants have further reduced the breadth by one feet and the same has been included in Paragraph 5 of the Proposed Amendment. According to the plaintiff, prior to the first visit of the Advocate Commissioner on 25.01.1999 in the portion of D-1, the Defendants have further reduced the breadth by one feet and the same has been included in Paragraph 5 of the Proposed Amendment. It is further alleged that the prior to the Commissioner’s Visit at the third time on 05.02.1999, in the portion shown as "D2”, the Defendants have reduced the breadth of the pathway by planting stones to a breadth of 1½’ to 2’ and that they have planted stones. Serious allegations of planting coconut saplings and planting stones are alleged against the Defendants. Curiously, no immediate steps have been taken by the Plaintiff to amend the Plaint. The Commissioner’s Report was filed even in November 1999. Thereafter, the Amendment Application was filed nearly one year after the filing of the Commissioner’s Report. It is relevant to note that when the case has been posted in the Special List, the Amendment Application has been filed. As pointed out by the Trial Court, there is every reason to hold that the Application has been filed to delay the trial proceedings. 15. The contention of the Plaintiff that the Plaintiff had come to know about the obliteration of the Pathway and the act of the Defendants only after filing of the Commissioner’s Report lacks bonafide. It is relevant to note that the Plaintiff is residing adjacent to the disputed pathway. Even according to him, he is proceedings to his House and Field only through the Suit Pathway. Any damage or destruction of part of the Suit Pathway would not have gone unnoticed. The delay in filing the Amendment Application assumes significance. This is all the more so when the Defendants have put forth the defence that the Plaintiff has got right only to take his Cart and Cattle and denying the Plaintiff’s right of taking the Tractor, Trailer and Lorry. 16. Contending that the Amendment Application could be filed at any stage and the Courts are to take note of the subsequent events, learned counsel for the Revision Petitioner / Plaintiff has relied upon the decisions reported in 1997 (1) L.W. 261 , 2004 (1) M.L.J. 100 , 2004 (2) M.L.J. 231 , 2004 (3) M.L.J. 250 , 2004 (4) M.L.J. 481 . In those cases, on the factual aspects of the case, it has been held that the Proposed Amendment does not introduce a new case and the Courts have taken note of the subsequent event. There is no denying that the Courts are to adopt liberal approach in considering the Amendment Application. But, in the factual background of the case, no such liberal approach could be adopted when the Plaintiff has filed the Amendment Application belatedly, introducing a new case, thereby causing serious prejudice to the Defendants accrued right and defence. 17. Taking note of the delay in filing the Amendment Application and the nature of the Amendment, learned District Munsif has rightly declined the Amendment Application. The Impugned Order does not suffer from any material irregularity or jurisdictional error to interfere with the same by exercising the Revisional Jurisdiction under Section 115 C.P.C. This Civil Revision Petition has no merits and is bound to fail. 18. For the foregoing reasons, the order dated 11.12.2001 of the Principal District Munsif, Namakkal in I.A.No.803 of 2000 in O.S.No.49 of 1999 is confirmed and this Civil Revision Petition is dismissed. In the circumstances of the case, there is no order as to costs. Consequently, the connected C.M.P.No.8101 of 2002 is dismissed.