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2007 DIGILAW 1873 (MAD)

M. Muthumanickam & Others v. B. Senthilvel

2007-06-21

S.MANIKUMAR

body2007
Judgment :- 2. Though notice was served on the respondent, there is no representation. 3. Brief facts leading to the filing of the Civil Revision Petition are as follows: The plaintiffs are the Revision Petitioners and the respondent is the defendant. The plaintiffs filed a suit in O.S. No.231 of 2005 on the file of the District Munsif Court, Dharapuram for permanent injunction restraining the defendant from interfering with their possession and enjoyment of the suit property and also to prevent the defendant from drawing water from the Suit Well sell the same to the third parties. Pending suit, the plaintiffs filed I.A.No.349 of 2006 for amending the suit schedule property. The plaintiffs have submitted that the suit property belonged to their father, by virtue of a final decree, passed in I.A.No.873 of 1937 in O.S.No.43 of 1937, dated 23.03.1938 and ever since, they were absolutely in possession and enjoyment of the suit property. According to them, there is a Well in Survey No.917, which is situated in the defendant’s property and at the time of sub-division, the plaintiffs got 1/4th share in the said Well and their share was described as Survey No. 917/2 and the share of the defendant was described as Survey No.917/1. There is an injunction restraining the respondent/defendant from taking water from Well for the purpose of selling to third parties and the same is in force. By mistake, instead of describing the suit well as Survey No.917/1, the plaintiffs have described the same as Survey No.917/2. Therefore, the plaintiffs have to amend the suit Schedule property and given the correct survey number for proper adjudication. There is no new cause of action projected by the plaintiffs by amending the said survey number. If the Survey number is amended, no prejudice would be caused to the respondent/defendant. However, if the Survey Number is not amended, the plaintiffs would be put to irreparable loss and damages. The mistake is neither willful nor wanton and therefore, the plaintiffs have prayed for amendment of the suit schedule property. 4. The defendant in his counter affidavit has denied that the plaintiffs have got 1/4th share in the suit Well. He has further submitted that there is no common Well in Survey No.917/1 belonging to the plaintiffs and the defendant, and denied the order of interim injunction restraining the defendant from taking water from the Well. 4. The defendant in his counter affidavit has denied that the plaintiffs have got 1/4th share in the suit Well. He has further submitted that there is no common Well in Survey No.917/1 belonging to the plaintiffs and the defendant, and denied the order of interim injunction restraining the defendant from taking water from the Well. The defendant has denied the contention of the plaintiff that in the description of the suit property, instead of Survey No.917/1, it has been wrongly mentioned as Survey No.917/2. This defendant has filed a detailed report in the suit on 010. 2005. At the time of partition in the court, the Well itself got dried about 40 years ago. Hence, the defendant separately dug a new Well and even got an electricity connection. Further, a deep bore well has also been dug and the defendant is enjoying the same. These details have also been mentioned by the defendant in the said detailed report. Since none of the plaintiffs are in possession of the suit property, this defendant does not know the truth of the same. The plaintiffs, by filing the suit with false allegations and wrong particulars, are trying to encroach upon the Well. If the plaint is corrected, the nature of the case will entirely change. The details in the suit are regarding S.No.917/2 and based on the pleadings, all the documents have been filed. At this juncture, if the description of the property is corrected, the land itself would get changed. The defendant has further submitted that everything in the plaint has got to be corrected and the defendant will have to file an amended detailed report. Hence, this petition has to be dismissed. 5. the Court below, on appreciation of the evidence/pleadings, dismissed the said I.A. accepting the case of the respondent/defendant and held that the nature of the suit and the property described therein, would get changed, if the amendment sought for by the plaintiffs is granted. 6. Learned counsel for the petitioners/plaintiffs submitted that the lower Court has failed to consider that the amendment sought for is only to rectify the error and furnish the correct survey number for the common Well, i.e., S.No.917/1, instead of S.No.917/2 in the plaint schedule property. He further submitted that the change in the survey number does not amount to introducing a fresh cause of action. He further submitted that the change in the survey number does not amount to introducing a fresh cause of action. He further submitted that the amendment can be allowed before the commencement of the trial, it does not amount to altering the cause of action. 7. Before the trail Court, in the Plaint, the plaintiffs have erroneously specified the Survey Number of the land in the suit schedule property and sought to amend the same by filing the I.A. as stated above. The trail Court has dismissed the amendment petition on the ground that it would amount to introducing a fresh cause of action. 8. In 2002 (1) CTC 695 (Fritiz T.M. Clement Vs. Sudhakaran Nadar), the Supreme Court held that the omissions and mistakes which had crept into the plaint inadvertently on account of wrong advice given by the counsel, was stated as reason for filing the petition for amendment. In the above case, it was the claim for money based on an agreement and even the specific dated of agreement was not given. The Supreme Court having regard to the fact that there is no change in the cause of action, allowed the amendment. 9. In 2000 (1) SCC 712 (B.K. Narayana Pillai vs. Parameswaran Pillai), the Supreme Court has held that the amendment of the pleadings should be permitted, which would result in the solution of real controversy between the parties without altering the original cause of action. In the instant case, the dispute is with respect to the right in the Well. The real dispute could be adjudicated, if the amendment relating to the survey number is allowed. In view of the principles stated by the Supreme Court, I do not find that the amendment sought for would change the cause of action or the nature or character of the suit. 10. In view or the above, the Civil Revision Petition is allowed, setting aside the fair and decretal order passed in I.A. No.349 of 2006 in O.S.No.231 of 2005, dated 19.07.2006 on the file of the District Munsif Court, Dharapuram, Erode District. No costs. Consequently, Connected Miscellaneous Petition is also closed.