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2009 DIGILAW 59 (MAD)

M. Nagamani & Another v. Jayamma(Died) & Others

2009-01-07

G.RAJASURIA

body2009
Judgment :- Anim adverting upon the order dated 13. 2008 passed in I.A.No.7824 of 2007 in O.S.No.738 of 2006, by the XIII Assistant City Civil Court, Chennai, this civil revision petition is focussed. 2. A resume of facts, which are absolutely necessary and germane for the disposal of the civil revision petition would run thus: (a) The petitioners/plaintiffs filed the suit O.S.No.738 of 2006 for injunction relating to the immovable property. According to the petitioners/plaintiffs, during the pendency of the suit, despite injunction order was in vogue, the respondents/defendants trespassed into the suit property and put up an asbestos sheet shed; whereupon, the Advocate Commissioner was appointed to visit the suit property and furnish report. (b) The Advocate Commissioner also visited the suit property and furnished his report. Whereupon the petitioners/plaintiffs filed I.A.No.7824 of 2007 under Order 6 Rule 16 and 17 of Code of Civil Procedure for amending the prayer in the plaint, so as to get incorporated a prayer for mandatory injunction for removing the said asbestos shed put up by the respondents/defendants covering an extent of 140 sq.feet. The trial Court dismissed the said application. (c) Being dissatisfied with and aggrieved by the said order, the present revision petition is focussed on various grounds. 3. The learned counsel for the petitioners/plaintiffs would develop his argument that the trial Court in its cryptic order, without adverting to the salient features involved in this case, simply dismissed the prayer for amendment and virtually drove the petitioners/plaintiffs to file a fresh suit. 4. Whereas the learned counsel for the respondents/defendants would submit that in the written statement filed by the respondents/defendants in the year 2006 itself, they clearly and categorically contended that they were in possession and enjoyment of the suit property; the petitioners/plaintiffs have not chosen to take any steps; however, only during the year 2007, I.A.No.7824 of 2007 was filed by the plaintiff so as to get amended the prayer in the plaint; in fact, the plaint should not have been filed for bare injunction and if at all, the petitioners/plaintiffs do have a case of their own, they should file a separate suit for possession. 5. A bare perusal of the order of the lower Court would demonstrate that it is far from satisfactory. 5. A bare perusal of the order of the lower Court would demonstrate that it is far from satisfactory. It is a trite proposition of law that depending upon the subsequent developments to the filing of the suit, the plaint could be amended. But there should be some grounds for that. The trial Court simply relied on the counter filed by the respondents/defendants in the interim injunction application, viz., I.A.No.1622 of 2006 and held that the averment of the petitioners/plaintiffs that they were in possession and enjoyment of the suit property, was false. 6. I am of the considered opinion that merely based on the counter or the written statement of the respondents/defendants, the application for amendment should not have been dismissed. In matters of this nature, the trial Court is enjoined to see as to whether the alleged trespass had taken place subsequent to the filing of the suit or anterior to the suit and to the limited extent, after taking either oral or documentary evidence, the Court should arrive at a conclusion; if the alleged trespass had taken place subsequent to the filing of the suit, then amendment of the plaint could be ordered, or otherwise, no such amendment could be ordered. In such an event it is for the petitioners/plaintiffs to file a fresh suit only seeking comprehensive relief. It is also made clear that the statements recorded by the Advocate Commissioner relating to the alleged trespass can never be evidence before the lower Court and it is for the lower Court to take evidence relating to the alleged subsequent trespass. 7. In the result, the order passed in I.A.No.7824 of 2007 in O.S.No.738 of 2006 by the XIII Assistant City Civil Court, Chennai, is set aside and the civil revision petition is allowed. Adhering to the observations made by this Court, the lower Court is directed to consider the I.A.No.7824 of 2007 afresh and pass order within a period of one month from the date of receipt of copy of this order.