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2006 DIGILAW 3013 (MAD)

Tejraj v. B. Srinivasan & Another

2006-11-07

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition filed against the order dated 6.9.2002 made in I.A.No. 5773 of 2001 in O.S.No:6925 of 2000, passed by the learned VIII Assistant Judge, City Civil Court, Chennai.) The plaintiff is the revision petitioner herein. He has filed the suit for a permanent injunction restraining the defendants and their men from interfering with the peaceful possession and enjoyment of the residential portion consisting of the entire third floor in Premises No.411, Mint Street, Sowcarpet, Chennai-79. The suit was filed on 3.11.2000. Pending the suit he has filed I.A.No.18371/2000 for interim injunction also. Only notice was ordered in the said petition returnable on 17.11.2000. On that day the defendants also entered appearance through an Advocate. Thereafter the petition was posted for filing counter on 11.1.2001. Thereafter fresh notice was also issued to the first defendant. According to the revision petitioner, even the registered letters sent to the first respondent were returned with an endorsement as "refused" and "left". However, both the defendants were aware of the pendency of the suit as early as 8.11.2000 on the date when the notice was served upon the second defendant. 2. It is also alleged by the revision petitioner that taking advantage of the fact that only notice was ordered in the injunction petition, the second defendant in collusion with the first defendant damaged the suit premises and ransacked all his belongings kept in his house during his absence for a few days. Before the injunction petition was heard, the defendants also demolished the entire building. The trial court also granted interim injunction on 7.2.2001. Even after that by flouting the order of injunction they demolished the rest of the portion. Thus according to the plaintiff, the prayer in the suit is unenforceable and therefore sought for amendment of the suit prayers to avoid multiplicity of proceedings. 3. The respondent resisted the said amendment petition by filing a detailed counter denying the entire allegation of the plaintiff. In the said counter the defendants contended that the averments contained in the petition are misconceived and devoid of merits. 4. The learned VIII Assistant Judge, City Civil Court, Chennai on a consideration of the averments and on hearing the Counsel appeared on either side, dismissed the amendment petition. Aggrieved over the same, the present CRP has been filed. 5. In the said counter the defendants contended that the averments contained in the petition are misconceived and devoid of merits. 4. The learned VIII Assistant Judge, City Civil Court, Chennai on a consideration of the averments and on hearing the Counsel appeared on either side, dismissed the amendment petition. Aggrieved over the same, the present CRP has been filed. 5. A perusal of the impugned order would show that the suit has been originally filed for permanent injunction and now by the interlocutory application, the plaintiff wants to amend the plaint and insert the reliefs of mandatory injunction and for re-delivery of possession. Though it is alleged by the plaintiffs that taking advantage of the notice ordered in the injunction petition the defendants in a highhanded manner ransacked the household articles and also demolished the premises, the learned VIII Assistant Judge on the report and photographs filed by the Advocate Commissioner, appointed at the instance of the defendants, found out that the suit property is a vacant site at the time of visit by the Advocate Commissioner and as admitted by the defendants the plaintiff was the original tenant resided there for over 17 years and he has vacated and handed over the premises to the defendants and thereafter only the building has been demolished. It was also found out that the structure was in a dilapidated condition. Thus the amendment sought for is to introduce a new cause of action which is not the subject matter of the pending suit. Moreover the amendment sought for to re-deliver would cause serious prejudice to the defendants. 6. The learned Judge has also rightly relied on the decision reported in 1981 (3) SCC 652 (Suraj Prakash Bhasin V. Raj Rani Bhasin and others), wherein the Hon'ble Supreme Court has held as follows:- "The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decision of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings." 7. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings." 7. Further, In a suit filed for bare permanent injunction restraining the defendants from interfering with his possession in a old building, the new prayer for redelivery of a new building cannot be sought for. Admittedly, the old building has been totally demolished after vacating the tenanted premises and handed over to the defendants and hence the suit as well as the petition for amendment become infructuous. The cause of action is entirely different and therefore the learned VIII Assistant Judge, City Civil Court, Chennai rightly rejected the petition for amending the plaint. There is no infirmity or error of law in the said order. Therefore, this revision is liable to be dismissed. 8. In the result, this CRP is dismissed. Consequently, connected CMP is also dismissed. No costs.