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2009 DIGILAW 3614 (MAD)

Thiraviyam v. Mukkayee

2009-09-08

ARUNA JAGADEESAN

body2009
Judgment :- This Civil Revision Petition is filed by the plaintiff against the order dated 7. 2009 in IA.No.265/2008 in OS.No.15/2003 passed by the District Munsif Court Cum Judicial Magistrate, Kamudhi, rejecting the petition for amendment. 2. The petitioner/plaintiff had filed the above said suit for declaration and recovery of possession against the respondent/ defendant and the same was dismissed, as against which the petitioner filed an appeal in AS.No.73/2006 on the file of the Sub Court, Paramakudi and the lower appellate court remanded the suit for fresh disposal. Pending the suit, the petitioner has filed the said application for amendment to correct the description of four boundaries and also the nature of the shed put up by him in the suit property. 2. According to the petitioner, he has failed to give the predecessors name of the parties, who are residing/having land on four boundaries and moreover, the shed situated in the suit property is described as “Xl;L bfhl;lif“ instead of “Xl;L tPL“. Therefore, it has become necessary on his part to amend the four boundaries and the nature of the shed suitably. 3. The trial court after discussing the facts of the case, reproducing the description of the property as set out in the schedule to the plaint originally and giving the description as sought to be amended in the interlocutory application would remark that the description of four boundaries is sought to be amended in a different manner and that if the amendment is allowed, the identity of the property will be changed and therefore, would not permit the petitioner to amend the plaint as prayed for. 4. This court is not in agreement with the reasons assigned by the trial court in its order. The description of the property should be to the actual existence of the property and not as it has been described in the document as the owners of the land lying on four boundaries tend to change. Therefore, the court prior to conducting the trial cannot presume that the description of four boundaries sought to be amended is not exact and correct description of the property and on that ground deny the opportunity for the petitioner to amend the plaint, which is unreasonable. Therefore, the court prior to conducting the trial cannot presume that the description of four boundaries sought to be amended is not exact and correct description of the property and on that ground deny the opportunity for the petitioner to amend the plaint, which is unreasonable. Moreover, once the plaintiff is allowed to amend the plaintiff, especially regarding the boundaries in the suit schedule of property immediately it does not become an established fact and it is only subject to dissection by the other side during the trial and therefore, on a wider spectrum also the trial court can arrive its own conclusion of course not only on the documents, but also the oral evidence. Therefore, no fear or apprehension need be entertained by the trial court on the face of the petitioner having come forward to seek for an amendment of the boundaries of the suit schedule of property, which is only subject to proof during trial. 5. It is laid down by the Honourable Supreme Court in the case of Usha Devi Vs. Rijwan Ahamd and others [2008-3-MLJ-287-SC] that in order to allow the prayer for amendment, the merit of the amendment is hardly a relevant consideration and it will be open to the defendants to raise their objections in regard to the amended plaint by making any corresponding amendments in their written statement. 6. In view of the decision of the Honourable Supreme Court cited supra, I am of the considered view that the trial court should have allowed the application permitting the petitioner to carry out the amendment as sought for in the petition. 7. In the result, this Civil Revision Petition succeeds and the same is allowed, setting aside the impugned order of the court below. No costs. Consequently, the connected MP is closed.