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2008 DIGILAW 3791 (MAD)

R. Manjula v. R. Ramanujam & Another

2008-10-20

M.VENUGOPAL

body2008
Judgment :- The revision petitioner/plaintiff has filed this civil revision petitioner aggrieved against the order passed in I.A.No.2006 of 2007 in O.S.No.196 of 2000 dated 05.06.2008 by the District Munsif-cum-Judicial Magistrate, Ambattur in dismissing the application for amendment of plaint filed under Order 6 Rule 16 and 17 of Civil Procedure Code. 2. The trial Court has dismissed the I.A.No.2006 of 2007 inter alia observed that when the relief sought for by the revision petitioner/plaintiff is mandatory in nature, she should have filed the amendment application within three years i.e. before 2003 and further that in view of the Advocate Commissioner report filed in the case, the petitioner has full knowledge of the presence of compound wall etc. 3. The learned counsel for the petitioner urges that the trial Court has relied on the decision of the Honble Supreme Court in K.Raheja Constructions Ltd., V. Alliance Ministeries and others 1996 (I) CTC 178, wherein it is held that amendment of plaint after a lapse of period of limitation can be rejected. Further, the trial Court has rested its conclusion also based on the decision of this Court reported in Rameeza Beevi and others V. S. Mohammed Ibrahim 2005(5) CTC at page 619 wherein it is held that time would run from the date first known to the plaintiff. According to the learned counsel, the decision of the trial Court in dismissing I.A.No.2006 of 2007 is not correct in the eye of law, in view of the subsequent decision of Honble Supreme Court reported in Pankaja and another V. Yellappa (D) Lrs. and others (2004 (4) CTC 231) wherein it is inter alia observed that there can be no straight jacket formula for allowing or disallowing amendment of pleading which depends on factual background of that case and such application should not be disallowed merely because it is opposed that it is barred by limitation and on facts it is further held that the applicability of limitation was arguable question and proposed amendment does not introduce different relief and in that view, application for amendment of pleading was allowed. 4. Admittedly, the revision petitioner/plaintiff has filed the suit O.S.No.196 of 2000 for the relief of permanent injunction restraining the defendants 1 and 2, their men, agent and servants etc. 4. Admittedly, the revision petitioner/plaintiff has filed the suit O.S.No.196 of 2000 for the relief of permanent injunction restraining the defendants 1 and 2, their men, agent and servants etc. from trespassing into the suit property or in any manner in interfering with the plaintiffs peaceful possession and enjoyment of the suit property mentioned in A schedule property of the plaint. The suit is pending before the trial Court. A perusal of the application I.A.No.2006 of 2007 filed by the petitioner/ plaintiff praying for amendment of plaint indicates that permission for amending the prayer of the plaint by adding the prayer for mandatory injunction directing the defendants to remove the compound wall and the arch and the gate on 20 feet common road of the B Schedule property is sought for. 5. Within the well established principles of law, a Court of law can allow an amendment. An amendment which does not change the nature and character of the suit can be allowed by the Court. Generally, in the matter of amendment application merits and demerits of the case are not to be looked into. However, the Court is to be cautious of the fact that an amendment of pleading ought not to be granted to introduce a new cause of action. 6. As far as the present case is concerned, in view of the principles laid down by the Honble Apex Court in the decision 2004 (4) CTC 231 (cited supra) to the effect that an application for amendment should not be allowed merely because it is opposed that it is barred by limitation and bearing in mind that the applicability of limitation in regard to the relief of mandatory injunction is an arguable question, this Court opines that the civil revision petition deserves to be allowed and accordingly, allows the Civil Revision Petition. Resultantly, the order of the trial Court in dismissing the I.A.No.2006 of 2007 seeking amendment of the plaint is set aside. However, the trial Court is directed to decide the plea of limitation in regard to the relief of mandatory injunction along with other issues involved in the suit, by framing a necessary issue in this regard and dispose of the suit finally and conclusively so as to put at rest all the controversies involved in the case. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed.