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2010 DIGILAW 5203 (MAD)

A. Thangasamy v. Kumar

2010-11-30

R.S.RAMANATHAN

body2010
Judgment :- This Revision has been filed against the order dated 24.07.2009 made in I.A.No.478 of 2009 in O.S.No.292 of 2000 on the file of the District Munsif Court, Chengalpattu. 2. The defendant in O.S.No.292 of 2000 on the file of the District Munif Court, Chengalpattu is the revision petitioner. The plaintiffs has filed the suit for permanent injunction in respect of 4500 sq.ft. of land. After the revision petitioner filed the statement disputing the title of the plaintiffs, the respondents/plaintiffs filed an application in I.A.No.478of 2009 on the file of District Munsif Court, Chengalpattu, to amend the plaint including the prayer for declaration of title to the suit property and to add necessary paragraphs in the plaint and the application was allowed and as against the same, this revision is filed by the Revision Petitioner. 3. The learned counsel appearing for the revision petitioner submitted that if the amendment application is allowed it would change the nature and character of the suit and the relief sought for in the prayer for amendment is also barred by limitation and therefore, the amendment ought not to have been allowed by the Court of law. In support of the contention raised by the learned counsel appearing for the revision petitioner relied upon the judgment reported in (2009) 10 SCC 84 in the case of RAVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY AND SONS AND OTHERS and AIR (2007) SC 1663 in the case USHA BALASHAHEB SWAMY AND OTHERS VS. KIRAN APPASO SWAMI AND OTHERS. 4. Per contra, the learned counsel for the respondents relied upon the judgment reported in (2009) 10 SCC 626 (SURENDRA KUMAR SHARMA VS. MAKHAN SINGH) and submitted that there is no question of limitation and even assuming that the claim is barred by limitation, issues can be framed to that effect and on that ground the amendment cannot be disallowed. 5. Admittedly, it is a pre trial amendment and Honble Supreme Court has held that pre trial amendment could be liberally considered. 6. In the judgment reported in (2009) 10 SCC 84 in the case of RAVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY referred to above, the various factors to be taken into consideration while dealing with the amendment application were narrated and those factors are detailed below: "(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? 6. In the judgment reported in (2009) 10 SCC 84 in the case of RAVAJEETU BUILDERS AND DEVELOPERS VS. NARAYANASWAMY referred to above, the various factors to be taken into consideration while dealing with the amendment application were narrated and those factors are detailed below: "(1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5)Whether the proposed amendment constitution or fundamentally changes the nature and character of the case? And (6) As a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application?" Therefore, we will have to see whether the present amendment application filed the respondents/plaintiffs, in the light of the factors stated in the Judgment of the Honble Supreme Court . In the judgment reported in 2002 (3) MLJ 160 (SC), the Honble Supreme Court has held that changing the relief for injunction to one declaration of title will not amount to changing the character of the suit. Therefore, by virtue of the amendment sought for by the respondents/plaintiffs from injunction to declare their title, the nature and character of the suit will not be changed. Further, by allowing the amendment the multiplicity of proceedings will be avoided and having regard to these facts the Court below allowed the application. Further, the Honble Supreme Court has held that if the relief sought for by amendment is barred by limitation issue can be directed be to framed by the Court below regarding the limitation and on that ground the amendment cannot be denied. Therefore, following the above judgment reported in (2009) 10 SCC 84 , I do not see any reasons to interfere with the order of the Court below. 7. With the observations, this Civil Revision Petition is dismissed. Therefore, following the above judgment reported in (2009) 10 SCC 84 , I do not see any reasons to interfere with the order of the Court below. 7. With the observations, this Civil Revision Petition is dismissed. Therefore, the order of the Court below is confirmed and the Court below is directed to frame the issue whether relief sought for is barred by limitation and proceed further and dispose the suit within a period of six months from the date of receipt of a copy of this order. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed.