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2006 DIGILAW 3547 (MAD)

Chakkubai v. Ram Manohar Logia & Others

2006-12-20

S.ASHOK KUMAR

body2006
Judgment :- (Civil Revision Petition is filed against the order dated 12.04.2006, made in I.A.No. 332 of 2006 in O.S.No: 136 of 1998, passed by the learned District Munsif, Madurantakam.) As against the dismissal of the Interlocutory Application filed by the plaintiff to amend the Plaint, this CRP has been filed. 2. The suit has been filed by the revision petitioner/plaintiff for permanent injunction against the defendants. According to the plaintiff at the time of filing the suit there was no construction made in the suit property. The defendants were attempting to put up construction by raising concrete pillars on the north eastern side of the suit property. Pending the suit the suit the second defendant Dharman had put up illegal construction for which Police complaint was also lodged by the plaintiff, but the second defendant completed the construction. As the constructions were made pending the suit, the petitioner seeks to amend the Plaint seeking for the relief of mandatory injunction to remove the illegal construction made by the defendants. Since the said Dharman died and there was delay in impleading his legal heirs, the amendment application could not be filed at the earliest time. 3. The defendants contested the said application contending that the deceased Dharman had construction the building in the suit property even much prior to the filing of the suit. Inspite of that the suit has not been filed for declaration and filed only for bare injunction with an intention to throw away the respondents by force. According to the defendants, the application is barred by limitation. 4. The learned District Munsif, Maduranthakam on a consideration of the averments and the arguments of the learned counsel appeared on either side dismissed the said amendment application holding that the same is barred by limitation. Aggrieved by the same, the present revision has been filed by the plaintiff. 5. According to the defendants, the application is barred by limitation. 4. The learned District Munsif, Maduranthakam on a consideration of the averments and the arguments of the learned counsel appeared on either side dismissed the said amendment application holding that the same is barred by limitation. Aggrieved by the same, the present revision has been filed by the plaintiff. 5. Learned counsel for the revision petitioner submitted that the amendment sought for relates to events that transpired subsequent to the suit and if the amendment is not granted, the petitioner's suit is liable to be dismissed since pending the suit, the respondent had trespassed into the suit property and had put up an illegal superstructure thereon, and even if the petitioner succeed in proving that the superstructure was put up illegally by the respondents pending the suit, they would not be able to get an effective decree without the amendment being permitted so as to include the prayer for mandatory injunction. 6. In fact the trial court should not stand on technicalities and should have taken note of the fact that if the proposed amendment is not allowed, substantial justice cannot be done. In 2005 (3) CTC 321 (Rathinam @ Anna Samuthiram Ammal Vs. Syed Abdul Rahim) this Court held that the pleadings filed before 1.7.2002 will not be affected by the amended provisions of the Code. Moreover by amending the plaint, it will not change the character of the suit or it will introduce a new cause of action. 7. In A.K. Gupta and Sons Vs. Damodar Valley Corporation reported in AIR 1967 SC 96 , it has been pointed out that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach tot eh same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. The Supreme Court further held that the object of the Courts and Rules of Procedures is to decide the rights of parties and not to punish them for their mistake. 8. In Ragu Thilak D. John Vs. S. Rayappan & Ors, reported in 2001 (1) Supreme 328 , the Apex Court held thus:- "5. The Supreme Court further held that the object of the Courts and Rules of Procedures is to decide the rights of parties and not to punish them for their mistake. 8. In Ragu Thilak D. John Vs. S. Rayappan & Ors, reported in 2001 (1) Supreme 328 , the Apex Court held thus:- "5. After referring to the judgments in Charan Das V. Amir Khan (AIR 1921 PC 50), L.J. Leach & Co Ltd., & Anr V. Jardine Skinner & Company ( 1957 SCR 438 ), Smt.Ganga Bai Vs. Vijay Kumar & Ors ( 1974 (2) SCC 393 ), M/s. Ganesh Trading Co., V. Moji Ram ( 1978 (2) SCC 91 ), and various other authorities, this Court in BKN. Pillai Vs. P.Pllai and another (JT.1999 (10) SC 61), held: "The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it s equally true that the courts while deciding such prayers should not adopt hyper technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation". 9. The above decisions squarely apply to the facts of the present case. This is a case where the petitioner could not have incorporated these pleadings before the commencement of the trial, since it is his case that only pending the suit the respondents had illegally encroached upon the suit property and put up the alleged superstructure. We are not sure whether the pillars that were in existence at the time of filing of the suit as alleged by the defendants were erected in the encroached area of the suit property or not and the same has been extended subsequent to the filing of the suit. We are not sure whether the pillars that were in existence at the time of filing of the suit as alleged by the defendants were erected in the encroached area of the suit property or not and the same has been extended subsequent to the filing of the suit. By amending the plaint by substituting the relief of mandatory injunction, no injury or injustice is going to be caused to the defendants. 10. In the decisions in Ragu Thilak D. John Vs. S. Rayappan & Ors, reported in 2001 (1) Supreme 328 , Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam, Vs. Udumalpet Samayapuram Ayira Vaisya Sangam, reported in 2005 (4) CTC 664 and Alagarsamy Vs. P.Natarajan, reported in 1997 (I) CTC 292 , the Hon'ble Supreme Court as well as this Court reiterated that the plea of limitation which is in dispute has to be decided at the time of trial by framing necessary issue after allowing the amendment and not at the time when considering the amendment application. Therefore it is clear that the limitation point is not to be decided at the time of ordering the amendment application and it should be left open and decided on merits after the parties let in evidence. 11. In the circumstances, the CRP is allowed setting aside the order passed in I.A.No: 332 of 2006 in O.S.No: 136 of 1998, on the file of the learned District Munsif, Madurantakam. Time for amendment two weeks from the date of receipt of a copy of this order. As soon as the amendment is carried out by the plaintiff, the defendant is entitled to file their additional written statement and the court shall frame necessary additional issues, including issue relating to limitation, if necessary. 12. Consequently, connected Miscellaneous Petition is closed. No costs.