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2010 DIGILAW 2887 (MAD)

Sridhar Babu v. Muthulakshmi

2010-07-15

T.S.SIVAGNANAM

body2010
Judgment :- The revision petitioner is the second defendant in O.S.No.143/2005 on the file of the District Munsif Court, Nagapattinam. 2. The first respondent/plaintiff filed the suit for a Judgment and decree of mandatory injunction directing the removal of the construction put up by the defendants and for consequential permanent injunction. The defendants had filed written statement and the suit was dismissed and on appeal at the instance of the first respondent, the matter was remanded and is pending trail. 3. During the pendency of the suit on remand, the first respondent filed I.A.No.847/2005 under Order 6 Rule 17 CPC, for including the measurements of the construction, which was sought to be removed by a decree of mandatory injunction. According to the first respondent, she was not aware of the exact measurement of the construction put up and the measurements came to her knowledge only after the Advocate Commissioner, who was appointed in the matter, inspected the property and submitted his report. This application for amendment of the plaint was resisted by the petitioner herein by filing a counter stating that such amendment cannot be allowed based on the report submitted by the Advocate Commissioner and the admissibility of the report is yet to be decided, and at this stage amendment should not be permitted. The Trail Court by order dated 19.11.2005 in I.A.No.836/2005 allowed the petition and permitted to the amendment to be carried out. Aggrieved by such order, the petitioner is before this Court by way of present revision petition filed under Article 227 of the Constitution of India. 4. The learned counsel appearing for the petitioner contended that the prayer for mandatory injunction as originally prayed for in the plaint does not give clear description of the property and the first respondent cannot be permitted to take advantage of the report submitted by the Advocate Commissioner. Further, it is contended that the amendment sought for is barred by limitation, since, new survey numbers are sought to be added and a new case is being introduced. Further, it is submitted that the petitioner has already filed their objections to the Advocate Commissioners report and if the report is scrapped by the Trail Court, there is no necessity for the amendment of the plaint. The learned counsel appearing for the petitioner relied on the following decisions of the Honble Supreme Court in support of his contentions: Munilal Vs. The learned counsel appearing for the petitioner relied on the following decisions of the Honble Supreme Court in support of his contentions: Munilal Vs. Oriental Fire & General Insurance Co. Ltd and another, (1996) 1 SCC 90 and Radhika Devi Vs. Bajrangi Singh and others, (1996) 7 SCC 486 . 5. The learned counsel appearing for the respondents would contend that there is absolutely no change of cause of action brought about as a result of the amendment and the encroachment has been specifically and correctly pleaded in the plaint. The schedule of property has also been clearly mentioned and the plea that if the amendment is allowed, it defeats the law of limitation is untenable. It is further submitted by the learned counsel appearing for the respondents that the petitioner is the brother of the first respondent and the first respondent was not in a position to go into the property to take measurement and after the report submitted by the Advocate Commissioner, the measurement have been included and the same does not introduce a new case as alleged by the petitioner. The learned counsel relied on the decision of the Honble Supreme Court in Rajkumar Gurawara Vs. S.K.Sarwagi & Co. Pvt. Ltd & another, 2008 (5) CTC 253, in support of his contentions. 6. Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for the respondents and perused the materials available on record. 7. Under Rule 17 Order 6 CPC, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms, as may be just and all such amendments shall be made, as may be necessary for the purpose of determining the real question in controversy between the parties. Proviso to the Rule states that no application for amendment shall be allowed after the trail has commenced, unless the Court is satisfied that the party could not have raised the matter before commencement of trail. As in the present case, trail is yet to commence, the Proviso to the Rule is not attracted. Undoubtedly, the expression "at any stage" of the proceedings is far more elastic and is not circumscribed or limited by any condition as long as the amendment sought for does not change the basic structure of the suit. As in the present case, trail is yet to commence, the Proviso to the Rule is not attracted. Undoubtedly, the expression "at any stage" of the proceedings is far more elastic and is not circumscribed or limited by any condition as long as the amendment sought for does not change the basic structure of the suit. It could be allowed for just decision of the case and to determine the real controversy between the parties. This Court has held that the amendment sought for, for incorporating additional survey numbers for proper description of boundaries of the suit property does not cause prejudice to the defendants and the amendment has to be allowed. (AIR 2009 NOC 1773). However, in the case on hand there is no addition of any survey numbers by way of the amendment, but only the measurement of the construction made. 8. Thus, bearing in mind the object and purport of Order 6 Rule 17 CPC, it is to be noted that in the plaint, the first respondent has sought for the relief of mandatory injunction for removal of the construction put up in the plaint schedule property. In the schedule to the plaint, the Door No., Survey No., Block No. and Ward No of the property and the linear measurements with the four boundaries have been clearly mentioned. All that the first respondent seeks to include by way of amendment is by adding a paragraph in the prayer in the suit by including the measurements of the offending construction. Therefore, it cannot be stated that the amendment alters the cause of action of the suit or introduces a new case. The Honble Supreme Court for the case of Rajkumar Gurawara Vs. S.K.Sarwagi & Co. Pvt. Ltd & another, 2008 (5) CTC 253, has held that pre-trail amendment should be allowed liberally and the three test laid down by the Honble Supreme Court are that the grant of application for the amendment be subject to i) when the nature of case is changed by permitting measurement, ii) when amendment would result introducing new cause of action and intends to prejudice to other parties iii) when allowing amendment application defeats the law of limitation. 9. 9. As observed earlier, there is no change brought about in the relief sought for in the plaint, by virtue of the amendment, no new cause of action has been introduced, which in any manner prejudices the defendants or the amendment defeats law of limitation as it within 3 years. The issue, which will have to be decided at the time of trail is as to whether, the plaintiff is entitled for the relief for mandatory injunction for removal of the construction put up in the suit schedule property. 10. Hence, for all the above reasons, the order passed by the Trail Court is valid and proper and calls for no interference. In the result, the Civil Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. No costs.