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2007 DIGILAW 1910 (MAD)

Alamelu Ammal & Others v. Kuppan & Another

2007-06-26

S.ASHOK KUMAR

body2007
Judgment :- This Civil Revision Petition is filed against the fair and decretal order dated 110. 2004 made in I.A.No. 1158 of 2003 in O.S.No: 365 of 2000 by the learned District Munsif, Tiruvannamalai allowing the application filed by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint. 2. The suit has been filed by the first respondent/plaintiff for the relief of declaration of the plaintiffs easmentary right over the B Schedule property and for grant of permanent injunction against the first defendant. But now the case of the first respondent/plaintiff is that he purchased the suit A schedule property on 2. 1994, but by mistake it was described as 2. 1974 and as such the question of acquiring easmentary right by prescription does not arise and that B Schedule property was left and earmarked as a road and it was so described in the boundaries in the sale deed as well as in the lay out plan and hence it is just and necessary to seek for declaration that the B Schedule property is inalienable road instead of easmentary right. Hence the amendments are necessary. 3. The revision petitioners/defendants resisted the amendments contending that the suit is based on the sale deed dated 2. 1994 in which the southern boundary is described as a road leading to Jothi Ramalinganagar. It is utterly false to state that the sale deed was described as dated 2. 1974 by mistake. The plaintiff is well aware of the date of the sale in his favour. There is no room for mistaking the year of sale as 1974 instead of 1994. Further the case was posted for arguments and at that stage the plaintiff has come forward with the amendment application for substituting the relief of easmentary right by a declaration that the southern road is inalienable. The relief asked for by way of amendment and the original prayer cannot go together since both are contradictory to each other. 4. The learned District Munsif, Tiruvannamalai, on a consideration of the pleadings and submissions made by the respective counsel, allowed the amendment sought for by the plaintiff. Aggrieved of the same, the present revision is filed by the defendants. 5. It is not in dispute that the plaintiff has filed the sale deed dated 2. 1994. 4. The learned District Munsif, Tiruvannamalai, on a consideration of the pleadings and submissions made by the respective counsel, allowed the amendment sought for by the plaintiff. Aggrieved of the same, the present revision is filed by the defendants. 5. It is not in dispute that the plaintiff has filed the sale deed dated 2. 1994. But by mistake the plaint has been drafted as if the property has been purchased on 2. 1974 and the relief of easementary right by prescription has been sought for accordingly. Since the sale is only of the year 1994, the plaintiff has come forward with the amendment application, that is, claiming the relief of declaration of absolute title. Though normally amendment for the very prayer in the plaint, cannot be entertained, that too after coming into force of the Amending Act 2002 of the Code of Civil Procedure, when the matter has been posted for arguments, taking into consideration the peculiar facts and circumstances of the case viz., the very document shows that sale is only in the year 1994 and the real relief sought for could be is only for declaration of title, in the interest of justice, the plaintiff cannot be thrown out to prosecute the real relief. For the mistake committed while drafting the pleadings, the plaintiff cannot be made to suffer. Therefore, I do not find any irregularity or infirmity in the order of the learned District Munsif, Tirunvannamalai. 6. In the result, this CRP is dismissed. Consequently, connected CMP is also dismissed.