Research › Search › Judgment

Madras High Court · body

2006 DIGILAW 2043 (MAD)

Saluka Beevi and Others v. Rajamani Ammal

2006-08-11

S.TAMILVANAN

body2006
ORDER This civil revision petition has been preferred against the order and decretal order dated 18.1.2005 passed in I.A. No. 967 of 2004 in O.S. No. 62 of 2002 on the file of the learned District Munsif, Devakottai, whereby the Court below had permitted the respondent/plaintiff to amend the plaint under Order 6 Rule 17 of the Code of Civil Procedure, as prayed for. 2. Learned counsel appearing for the revision petitioners/defendants would contend that the suit was filed by the respondent/plaintiff against the petitioners herein, seeking permanent injunction, restraining the petitioners herein from interfering with the peaceful possession and enjoyment of the suit property except under due process of law. But subsequently, the respondent/plaintiff vacated the premises since the rented premises was demolished by the Revenue Authorities and as such the learned counsel for the revision petitioners would state that as on the date of filing of the amendment petition, the respondent/plaintiff was not a tenant in occupation of the suit property. 3.Per contra, the learned counsel appearing for the respondent/plaintiff would contend that she was forcefully dispossessed by the petitioners. Hence, the respondent/plaintiff has filed a petition for contempt in I.A. No. 134 of 2004, before the trial Court and after hearing both sides and considering the facts and circumstances therein, the trial Court convicted the revision petitioners. Against which, the petitioners herein had preferred the C.R.P. (PD) No. 930 of 2004. While disposing the civil revision petition, by an order dated 27.9.2004, this Court has given its finding, which is binding on both the parties. 4. It is seen from the order dated 27.8.2004 passed in C.R.P.(PD) 930 of 2004 that the respondent/plaintiff herself had come forward to agree to the proposal placed by this Court, to the effect of withdrawing the application filed in I.A. No. 134 of 2004 before the Court below for violation of the Court order under Order 39 Rule 2(A) and Section 151 C.P.C., provided, on the part of the revision petitioners/defendants that they came forward to ascertain by filing an additional written statement to the effect that during the pendency of the order of the temporary injunction passed by the lower Court in I. A. No. 491 of 2002, they had not taken the possession of the premises, for which the learned counsel for the revision petitioners/defendants was also amicable. Therefore, this Court was of the view that on such undertaking being given on the part of the learned counsel for both in the above manner, it would only be fair on the part of the parties to contest the suit for a valid decision to be arrived at by the lower Court and hence the following order was passed: ""(i) subject to the above observations made in the preceding paragraph, the above civil revision petition becomes unnecessary and is disposed of as such. (ii) The parties are advised to carry out the undertaking before the lower Court in the manner required under law as early as possible, at any cost not later than three months from the date of receipt of a copy of this order by this Court below. (iii) Till such time that the legal formality as aforementioned i.e., the revision petitioners filing the additional written statement, in the manner aforementioned, and on the part of the respondent/plaintiff withdrawing the petition filed under Order 39 Rule 2(A) and Section 151 C.P.C., let not the order of imprisonment passed by the Court below take effect to"". 5. The respondent/plaintiff had prayed in the suit before the trial Court that she should not be evicted by the petitioners/defendants except under due process of law. Now, admittedly, the respondent/plaintiff is not in physical possession and enjoyment of the property. According to her, she had been dispossessed forcefully by the revision petitioners. But on the other hand, the revision petitioners have stated that the respondent/plaintiff voluntarily vacated the premises, since the building was demolished by the Revenue Authorities. 6. Learned counsel would contend that even if the building was demolished, the respondent/plaintiff can maintain the suit as tenant of the property. In support of the said contention, the learned counsel for the respondent/plaintiff cited the decision in Krishna Laxman Yadav and Others v. Narsinghrao Vithalrao Sonawane and Another AIR 1973 Bom. 358 wherein the tenant had vacated the rented premises due to floods end subsequently the building was also demolished and after reconstruction the Bombay High Court had declared the right of the tenants who were occupying the portions rented out to them. 358 wherein the tenant had vacated the rented premises due to floods end subsequently the building was also demolished and after reconstruction the Bombay High Court had declared the right of the tenants who were occupying the portions rented out to them. The learned counsel further cited the decision in Sampath Kumar v. Ayyakannu and Another 2002 (2) LW 21 and contended that the prayer sought for by way of amendment would not create a new cause of action or change the character of the suit. In the aforesaid decision cited by the learned counsel for the respondent/plaintiff, the Supreme Court has held as follows: ""Order 6 Rule 17 of the C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceeding and on such terms as may be just. Such amendments as are directed towards putting-forth and seeking determination of the real questions in controversy between the parties shall be permitted to be made. The question of delay in moving an application for amendment should be decided not by calculating the period from the date of institution of the suit alone but by reference to the stage to which the hearing in the suit has proceeded. Pretrial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. In former case, generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. In the latter cases, the question of prejudice to fee opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down. The fact remains that a mere delay cannot be a ground for refusing a prayer for amendment"". 7. The learned counsel appearing for the revision petitioners would contend that the respondent/plaintiff has introduced a new prayer with regard to the pathway, which would create a new cause of action, for which, the learned counsel for the respondent contended that as the respondent/plaintiff was dispossessed by the petitioners, it was necessitated to incorporate the prayer for recovery of possession by way of amendment. Further, according to the learned counsel for the respondent/plaintiff, the other side had attempted to put up a wall, so as to prevent access to the property for which the respondent/plaintiff had sought necessary amendment. 8. Order 6 Rule 17 of the Code of Civil Procedure reads thus: ""The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial"". 9. In the instant case, it has been admitted by both the learned counsel that the trial of the suit, has not yet commenced. In my view, the proposed amendment would not prejudice the revision petitioners herein, since the burden of proof primarily lies on the respondent/plaintiff. Therefore, in the light of the decision referred above, I find it reasonable that there is no error in the order passed by the Court below so as to warrant this Court to interfere with the order of the Court below and hence the civil revision petition is liable to be dismissed. 10. In the result, the civil revision petition is dismissed. There is no order as to costs. 11. On the representation made by both the counsel, the District Munsif Court, Devakottai is directed to dispose of the suit in O.S. No. 62 of 2002, on his file, as expeditiously as possible.