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2005 DIGILAW 421 (MAD)

Palaniappan & Others v. Govindaraj & Others

2005-03-10

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The revision petitioners are the plaintiffs in O.S.No.852 of 1999 on the file of the II Additional District Munsif Court, Salem. 2. The revision is filed against the dismissal of I.A.No.517 of 2002 filed by the revision petitioners seeking to amend the plaint with regard to the extent of the land in possession of the plaintiffs as 1.50 acres instead of 2.40 acres and also in describing the boundaries. The trial Court dismissed the petition. Hence, the plaintiffs have filed this revision. 3.Heard the learned counsel for the revision petitioners and the learned counsel for the respondents 1 to 5, 9 and 10 and also the learned Special Government Pleader appearing for the respondents 7 and 8. 4. The learned counsel for the revision petitioners/plaintiffs submitted that inasmuch as they came to know that the plaintiffs are in possession of only 1.50 acres and not in 2.40 acres as described in the plaint and consequently, the boundaries also have to change and in that view, the petition has been filed and the trial Court ought to have allowed the same. In support of such plea, the learned counsel has relied on the following decisions:- (1) C.M.Vareekutty – vs. - C.M. Mathukutty reported in (1980)I Supreme Court Case 537, (2) S.Muthuraman(died) and others – vs. - Dharmaraja and others reported in 1999 M.L.J. 604, and (3) Palaniammal – vs. - V.K.Ramanathan and 4 others reported in 2002(1) CTC 618 , wherein this Court has held that amendment can be ordered and in saying so, this Court has opined that no new case is set up and there is no new cause of action and liberal approach is also to be made, particularly when other side can be compensated by way of costs in filing such petition. 5. The learned counsel for the respondents argued that the revision petition filed under Section 115 C.P.C. itself is not maintainable after the amendment of C.P.C. To that view, the learned counsel relied on the following decisions:- (1) Kousalya Educational Trust – vs. - K.Vijayakumari and others reported in 2003-3 Law Weekly, 780, (2) P.Subba Naicker – vs. - Veluchamy Naicker and three others reported in 2004(2) CTC 742, (3) M.Sampath – vs. Geethanjali Investments reported in 2004-3 Law Weekly 708 and (4) Prem Bakshi and others – vs. - Dharam Dev and others reported in 2002 SAR (Civil) 155 Supreme Court. The learned counsel relying on the above said decisions, argued that inasmuch as by dismissing the amendment petition, the order of which is under challenge in this revision, had not been finally disposed the case, the revision is not maintainable. The learned counsel also argued that after amendment of C.P.C. no amendment of plaint can be allowed after commencement of trial, unless the Court comes to the conclusion that in spite of due diligence, the plaintiffs could not have raised the plea before the commencement of trial. The decision reported in 2004(2) CTC 742 (cited supra), rendered by this Court lends support in such an argument. 6. It appears, in the suit, the evidence has already been let in and the plaintiffs have completed examination of witnesses on their side and the defendants also examined six witnesses. The suit is of the year 1999. After such examination of witnesses, the plaintiffs have filed the amendment petition in July, 2002. Therefore, as held by this Court in the decision reported in 2004(2) CTC 742(cited supra), in view of the fact after commencement of trial the petition has been filed seeking to amend the plaint, the same cannot be ordered. The plaintiffs also failed to establish that despite due diligence such amendment could not be sought for before the commencement of trial. 7. The learned counsel for the revision petitioners also submitted that by way of amendment only lesser extent is sought to be mentioned as 1.50 acres instead of 2.40 acres in the possession of the plaintiffs, which is admittedly poromboke land. But, from that it cannot be said, the plaintiffs made out a case for such amendment. Since the plaintiffs already let in evidence with regard to the area in their possession, which would be sufficient to grant decree, if the case is made out in the suit, which has been filed seeking relief of permanent injunction. The plaintiffs have not made out the case for the amendment sought for and more particularly, after the commencement of trial and despite due diligence the plaintiffs could not file such an application before the commencement of trial. 8. The plaintiffs have not made out the case for the amendment sought for and more particularly, after the commencement of trial and despite due diligence the plaintiffs could not file such an application before the commencement of trial. 8. The revision as filed against the dismissal of amendment petition by which the suit has not been disposed, no revision would lie under Section 115 C.P.C. after the amendment of C.P.C. as held in Prem Bakshi and others – vs. - Dharam Dev and others reported in 2002 SAR (Civil) 155 Supreme Court. In that view also the revision deserves to be dismissed. 9. In the result, in view of the discussions made above, the revision fails and the same is dismissed, confirming the order dated 23.4.2003 in I.A.No.517 of 2002 in O.S.No.852 of 1999 passed by the II Additional District Munsif, Salem. No costs. Consequently, the connected petition C.M.P.No.12414 of 2003 is also dismissed.