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2013 DIGILAW 185 (MAD)

N. Chandra Sekar v. O. Varadaiah

2013-01-08

K.K.SASIDHARAN, R.BANUMATHI

body2013
Judgment :- R. BANUMATHI, J 1. This appeal arises out of the order in A.No.531 of 2012 in C.S.No.136 of 2008 in and by which the learned single Judge allowed the amendment application to amend the plaint by including the prayer seeking for declaration that the suit property belongs to the Plaintiff. 1st Defendant is the Appellant. For convenience, the parties are referred as per their array in the suit. 2. Plaintiff purchased the suit schedule property measuring an extent of 1254 sq. ft. in Plot No.16-A and 2272 sq. ft. in Plot No.17 in all aggregating 3526 sq. ft. together with building to an extent of 300 sq. ft. (R.S.No.107/6, T.S.No.10/1 in Block No.12) in Balammal street, Arumbakkam, Chennai-106 under sale deed dated 16.8.2007. Case of Plaintiff is that the suit schedule property is assessed to property tax and that he is in possession and enjoyment of the suit property. Plaintiff also obtained patta in his name. Alleging that the Defendants are trying to encroach upon the suit schedule property, Plaintiff filed the suit C.S.No.136 of 2008 seeking for Permanent Injunction restraining the Defendants from in any manner interfering with the possession and enjoyment of the property. 3. Resisting the suit, 1st Defendant filed written statement contending that he had purchased Plot Nos.12 and 13 in Kannappa Naicker Nagar, Arumbakkam, Chennai from the legal heirs of Mannar Maistry by a sale deed dated 14.10.1981. 1st Defendant claims that he is in peaceful possession and enjoyment of the said Plots bearing Nos.12 and 13 which are now claimed by the Plaintiff as his own and the sale infavour of Plaintiff is not a valid and binding on the 1st Defendant. According to 1st Defendant, he had put up a construction and also obtained electricity service connection and that there are four tenants and they are paying rent to the 1st Defendant. In the written statement, 1st Defendant also made a counter claim seeking for Permanent Injunction restraining the Plaintiff and his men from in any way disturbing 1st Defendant's possession and enjoyment of Plot Nos.12 and 13 respectively. 4. On application filed by the Plaintiff in A.No.3763 of 2009, an Advocate-Commissioner was appointed. In the written statement, 1st Defendant also made a counter claim seeking for Permanent Injunction restraining the Plaintiff and his men from in any way disturbing 1st Defendant's possession and enjoyment of Plot Nos.12 and 13 respectively. 4. On application filed by the Plaintiff in A.No.3763 of 2009, an Advocate-Commissioner was appointed. In August 2011, the Advocate-Commissioner has filed his report together with the report from the Taluk Surveyor stating that the property purchased by the 1st Defendant in Document No.5550 of 1981 dated 14.10.1981 and the property purchased by the Plaintiff in Document No.2981 of 2007 dated 16.8.2007 are one and the same property. 5. In January 2012, Plaintiff filed A.No.531 of 2012 to amend the plaint by including the prayer for declaration that the suit schedule property absolutely belongs to him and consequential amendments in the plaint. In the supporting affidavit, Plaintiff averred that only after the 1st Defendant filed his written statement, Plaintiff came to know that 1st Defendant is claiming ownership over the suit schedule property and therefore, it is necessary for the Plaintiff to amend the prayer for declaration of his right in the plaint. 6. Refuting the allegations, 1st Defendant filed counter stating that written statement was filed on 31.03.2008 denying the title of the Plaintiff and that the Plaintiff ought to have filed the amendment application within three years from 31.3.2008 as per Article 58 of Limitation Act and that the amendment application is belated one and therefore, amendment cannot be allowed. 7. Upon consideration of rival submissions, learned single Judge allowed the amendment application holding that issues are yet to be framed and trial is yet to commence and that by amending the plaint, no prejudice would be caused to the Defendants. Being aggrieved by allowing of the amendment, Appellant has preferred this appeal. 8. Mr. A. Seshan, learned counsel for Appellant submitted that written statement was filed on 31.3.2008 in which Appellant has clearly stated that he had purchased the suit property and is in possession and enjoyment of the same from the date of purchase. Learned counsel further submitted that application seeking amendment filed in 2012 is clearly barred by limitation, since the same is not filed within the period of three years as provided under Article 58 of Limitation Act. Learned counsel further submitted that application seeking amendment filed in 2012 is clearly barred by limitation, since the same is not filed within the period of three years as provided under Article 58 of Limitation Act. It was further submitted that Appellant has made a counter claim in the written statement praying for injunction against the Plaintiff and also paid necessary court fee and while so, 1st Defendant will be seriously prejudiced by the amendment since it takes away the valuable right vested with him. 9. Taking us through the Advocate-Commissioner's report, Mr. A.S. Vijayaraghavan, learned counsel for Respondent submitted that only after the Commissioner filed the report, Plaintiff came to know that 1st Defendant is claiming right in the suit schedule property and in order to establish the right over the suit property, it has become necessary to seek amendment of the plaint to include the prayer for declaration of title of the Plaintiff. 10. It is the case of Plaintiff that he purchased the suit property – residential house bearing Plot No.16A measuring an extent of 1254 sq. ft. and Plot No.17 measuring an extent of 2272 sq. ft., totalling 3526 sq. ft. together with building measuring an extent of 300 sq. ft. in Balammal street, Arumbakkam, Chennai-106 under sale deed dated 16.8.2007. Plaintiff purchased the above said Plots in the following boundaries:- Plot No.16A North by : Plot No.16 South by : Plot No.17 East by : Balammal street West by : Land in Old S.F.No.107/4 and New T.S.No.5/7. Plot No.17 North by : Plot No.16A South by : Land belongs to Balavinayagam Koil (S.No.107/7 and T.S.No.10/2) East by : Balammal street West by : S.No.107/4, New T.S.No.5/7 11. 1st Defendant claims to have purchased the property measuring an extent of 3250 sq. ft. in Plot No.12 and 13 in Kannappa Naicker Nagar in Block No.8, No.107, Arumbakkam village, Corporation Division No.111, Chennai in S.F.No.107/6, T.S.No.10/1(P). 1st Defendant purchased the property with the following boundaries:- North by : Plot No.11 (S.F.No.107/6) South by : Vacant land in S.F.No.107/7 East by : 24 feet road West by : Vacant land in S.F.No.107/4 12. On 31.3.2008, 1st Defendant filed the written statement stating that he purchased Plot Nos.12 and 13 which are the very same suit schedule property from the legal heirs of Mannar Maistry. On 31.3.2008, 1st Defendant filed the written statement stating that he purchased Plot Nos.12 and 13 which are the very same suit schedule property from the legal heirs of Mannar Maistry. Referring to Head Surveyor's Report, in his report, Advocate-Commissioner stated that "property purchased by the 1st Defendant through sale deed dated 14.10.1981 and the property purchased by the Plaintiff through sale deed dated 16.8.2007 are one and the same". Since the property purchased by the Plaintiff and the 1st Defendant are stated to be one and the same, it has become necessary for the Plaintiff to file amendment application. 13. Contention of Appellant is that since written statement was filed as early as on 31.3.2008 and in the written statement, 1st Defendant has clearly stated that he purchased the suit property and is in possession and enjoyment of the same and that the amendment application filed in January 2012 to amend the plaint is beyond the period of three years from the date of filing of the written statement and the same is barred by limitation. Contention of Appellant is that as per Article 58 of Limitation Act, three years period is to be counted from the date when the right to sue first accrues. Further contention of Appellant is that in the written statement even though the 1st Defendant has denied the right and title of the Plaintiff, the amendment application has been filed beyond three years and the same is barred by limitation. 14. Ofcourse written statement was filed on 31.3.2008 wherein the 1st Defendant averred that he purchased the suit property as early as on 14.10.1981. But the said averment was substantiated only after filing of the Commissioner's report. The relief of declaration of Plaintiff's title is sought for on the same set of facts and cause of action. By the amendment, only the prayer is changed and the consequential amendment in the pleadings. 15. Limitation is a mixed question of law and fact. Amendment once allowed, on the doctrine "relation back", the pleadings should be deemed to have been filed from the original date of filing. Whether the relief of declaration of title sought for by the Plaintiff is barred by limitation could be gone into only when the parties adduce oral and documentary evidence. Merits of the proposed amendment cannot be gone into at this stage. 16. Whether the relief of declaration of title sought for by the Plaintiff is barred by limitation could be gone into only when the parties adduce oral and documentary evidence. Merits of the proposed amendment cannot be gone into at this stage. 16. As pointed out earlier, written statement was filed on 31.3.2008 wherein the 1st Defendant averred that he purchased the suit property. Ofcourse it would have been desirable for the Plaintiff to seek for amendment after filing of the written statement. Mere delay in making the amendment application is not a ground for refusal of the amendment. Amendment is to be allowed when it does not cause prejudice to the opposite side. Court should always allow pre-trial amendment, unless it is satisfied that there was malafide and that the opponent could not be compensated. Rules of procedure are intended to be a hand maid to the administration of justice. A party cannot be refused to the relief, merely because of some inadvertence. As pointed out earlier, the learned single Judge held that issues are yet to be framed and trial is yet to commence. In such circumstances, it cannot be said that the amendment has caused serious prejudice to the 1st Defendant. We do not find any illegality warranting interference with the order of learned single Judge and the appeal is liable to be dismissed. 17. For the foregoing reasons, the appeal is dismissed. Appellant shall file additional written statement, if any, in C.S.No.136 of 2008 within a period of four weeks from the date of this order. Consequently, connected Miscellaneous Petition is closed. No costs.