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2010 DIGILAW 1579 (MAD)

Neelavathi v. Saraswathi

2010-04-06

M.JAICHANDREN

body2010
Judgment :- This civil revision petition has been filed against the order, dated 24.11.2008, made in I.A.No.1377 of 2008, in O.S.No.123 of 2006, on the file of the District Munsif Court, Tiruchengode. 2. The petitioner in the present civil revision petition had filed the suit, in O.S.No.123 of 2006, praying for a decree of permanent injunction against the defendants and their supporters restraining them, from, in any way, interfering with the peaceful possession and enjoyment of the suit property, by the plaintiff. 3. The petitioner had filed an interlocutory application against the respondents herein, who are the defendants in the said suit, praying for amendment of the plaint filed in the suit, in O.S.No.123 of 2006, as prayed for in the interlocutory application, in I.A.No.1377 of 2008. 4. The trial Court, by its order, dated 24.11.2008, had dismissed the said application stating that it is not maintainable. The trial Court had also stated that the amendment sought for by the petitioner to declare the sale deed, dated 12.3.2004, as null and void, cannot be added in the plaint, filed in O.S.No.123 of 2006, since the said sale deed had been executed, based on the general power of attorney, dated 21.3.2003, which has not been questioned. 5. The trial Court had stated, while dismissing the interlocutory application filed by the petitioner, that the petitioner, without challenging the general power of attorney, dated 21.3.2003, cannot get a declaration, to declare the sale deed, dated 12.3.2004, as null and void. Further, the petitioner had not given the reasons as to why the general power of attorney, dated 21.3.2003, is to be declared, as illegal and void. 6. The learned counsel appearing on behalf of the petitioner has stated that the order of the trial Court, dated 24.11.2008, is erroneous, as it had failed to see that if the sale deed is set aside, the fraudulently executed power of attorney would also become void. He had also stated that the trial Court ought to have allowed the amendment, as it would be useful for the trial Court to render its findings, with regard to all the issues arising for its consideration, in a proper manner. The learned counsel had also stated that no specific prayer is needed to set aside the power of attorney, as the purpose for which it had been given was only for the execution of the sale deed, dated 12.3.2004. The learned counsel had also stated that no specific prayer is needed to set aside the power of attorney, as the purpose for which it had been given was only for the execution of the sale deed, dated 12.3.2004. 7. The learned counsel had relied on the decision, reported in Pankaja V. Yellapa (D) LRs. (2004 (4) CTC 231), wherein, it had been held that the mere delay in filing an application for amendment should not, by itself, be a ground for the rejection of the application, unless serious prejudice would be caused to the opposite party, by allowing such an amendment. 8. The learned counsel had also relied on the decision, reported in C.V.Rambabu V. V.C.Jayanthi (2009(2) CTC 387), wherein a learned Single Judge of this Court had held that an amendment can be permitted, at any stage of the suit, for determining the real question in controversy between the parties, subject to the right of the opposite party to raise objections, based on the issue of limitation. 9. Per contra, the learned counsel appearing on behalf of the respondent had stated that the trial Court was right in dismissing the interlocutory application filed by the petitioner for the amendment of the plaint filed in the suit, in O.S.No.123 of 2006. Though the sale deed is dated 12.3.2004, the interlocutory application had been filed only on 22.9.2008, after more than 4 ½ years from the date of the execution of the sale deed. Further, the prayer of the petitioner, for amending the plaint, cannot be allowed for the reason that it is for declaring the sale deed, dated 12.3.2004, as null and void. However, the petitioner had claimed that the sale deed is illegal and invalid due to the reason that the general power of attorney, based on which the said sale deed had been executed, is fraudulent and opposed to law. 10. The learned counsel had relied on the decision, reported in K.Raheja Constructions Ltd. & another V. Alliance Ministries & others (1996-1-L.W. 143), wherein it has been held as follows: "Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent. On the facts, we hold that the application for amendment was barred by limitation. The petition is, accordingly, dismissed.” 11. In T.N.Electricity Board V. T.N.Alloy Foundry Co. Ltd ( 2001(4) CTC 174 , it has been held as follows: “10. The Law of Limitation is intended to protect the defendants from claims being made long after the periods specified in the law have elapsed. The plaintiff cannot, therefore, be allowed to enlarge the period of limitation by merely stating in the plaint that he will come back to the court at a later point of time with the revised figure of the damages. If he is unable to state the amount precisely in the plaint, he must carry out such amendment as he may think, he is entitled to, within the period of limitation if he is to prevent a challenge to any subsequent application for amendment on the ground of limitation. The mandate of Section 3 of the limitation Act is clear and indeed it casts a duty upon the Court to dismiss a suit or application which is barred by limitation at the threshold. Having regard to the rigour of the provision, the plaintiff cannot be allowed to reserve to himself a right to spring surprise on a defendant, by claiming a huge amount, by seeking a revised claim. 12. In S.Kuppusamy V. P.K.Subramani (2005-4-L.W.244), it has been held as follows: "5. Even though the power conferred under Order VI Rule 17 of the Code of Civil Procedure can be exercised to avoid the multiplicity of proceedings, applying the ratio laid down by the Apex Court in 1995 TLNJ 77 (SC) (cited supra), such power cannot be indiscriminately exercised to extend the period of limitation prescribed under the Limitation Act." 13. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and in view of the decisions cited above, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner in the present civil revision petition. The prayer for amendment of the plaint made by the petitioner in the interlocutory application, in I.A.No.1377 of 2008, has been made, belatedly. No proper explanation has been given by the petitioner, explaining the reasons for the delay. The prayer for amendment of the plaint made by the petitioner in the interlocutory application, in I.A.No.1377 of 2008, has been made, belatedly. No proper explanation has been given by the petitioner, explaining the reasons for the delay. Further, the prayer in the interlocutory application filed by the petitioner to amend the plaint in the suit, in O.S.No.123 of 2006, cannot be allowed, as it is for declaring the sale deed, dated 12.3.2004, as null and void. The reason stated by the petitioner for declaring the sale deed, as null and void, is that the power of attorney, dated 21.3.2003, based on which the sale deed had been executed, is fraudulent and opposed to law. 14. Further, the trial Court had rightly held that the application for amending the plaint had been filed by the petitioner, without giving sufficient details, with regard to the power of attorney and without challenging the same. Further, the petitioner has not been in a position to show that the amendment, if allowed, would not be barred by the law of limitation. Further, by allowing the amendment, as prayed for by the petitioner, the basic nature of the prayer in the suit would be changed and the respondents could be seriously prejudiced. As such, the Civil Revision Petition is devoid of merits. Hence, it stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.