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2014 DIGILAW 1173 (MAD)

Sengeni Ammal v. Narasimhan

2014-06-06

R.KARUPPIAH

body2014
Judgment : 1. The revision petitioner, who is plaintiff in the original suit in O.S.No.163 of 2003 filed this revision petition as against the order dated 24.02.2004 made in I.A.No.2342 of 2003 on the file of Principal District Munsif Court, Cudalore. 2. For the sake of convenience, the plaintiff in the original suit is referred as revision petitioner and the defendants in the original suit are referred as respondents here after. 3. Heard the learned counsel appearing for both sides and perused the materials available on records. 4. The revision petitioner filed a suit for permanent injunction in respect of the suit property (i.e.,) vacant site. According to the revision petitioner, at the time of filing the suit, the revision petitioner filed a petition in I.A.No.635 of 2003 for interim injunction and the trial court has granted temporary interim injunction but, on 25.04.2003 interim injunction was not extended since the presiding officer was on leave. Taking advantage of the above said facts, the respondents have raised men-made fence on 08.05.2003 on the eastern side of the suit property and prevented the revision petitioner from entering into the suit property. The revision petitioner lodged a complaint to the Police on 14.05.2003 and filed the above said petition in I.A.No.2342 of 2003 for permission to amend the plaint and seeking a decree for recovery of possession instead of permanent injunction. 5. On the side of the respondents filed a counter in the above said I.A.No.2342 of 2003, in which, it is stated that if permitted to amend the plaint, the character of the suit and also cause of action would be changed. Further, if really, the respondents have made men made fence on 08.05.2003, the revision petitioner should have reported to the trial court on the next day. Further, the revision petitioner should file a fresh suit instead of amending the prayer. It is also averred in the counter that the revision petitioner deposed in her deposition i.e., chief examination on 25.11.2003 as if the suit property was in her possession and therefore, the revision petitioner committed fraud on court and filed this petition in part heard stage. The value of the property for paying court fee also not correct and hence, prayed for dismissal of the petition. 6. The value of the property for paying court fee also not correct and hence, prayed for dismissal of the petition. 6. Before the trial court, on the side of the revision petitioner marked one document as Ex.P1 and on the side of the respondents marked four documents as Exs.R1 to R4. The trial court has considered the above said documentary evidence adduced on either side and held that if permitted to amend the plaint as prayed for the revision petitioner, the cause of action will be changed and also the petition was belatedly filed during the part heard stage. The trial court further held that the alleged encroachment pleaded in the petition has not proved and on that ground also the trial court dismissed the above said petition filed by the revision petitioner. Aggrieved over the above said findings of the trial court, this revision petition has been filed by the revision petitioner. 7. The learned counsel appearing for the revision petitioner would submit that during the pendency of the suit, the respondents trespassed into the suit property and put up with a fence and therefore, the amendment of the plaint was warranted. The learned counsel would submit that a petition for amendment could be allowed at any stage of the suit and the dismissal of the petition would lead to a multiplicity of proceedings and therefore, prayed for to set aside the above said dismissal order and permit the revision petitioner to amend the plaint as prayed for in the plaint. 8. Per contra, thee learned counsel appearing for the respondent would submit that originally the revision petitioner filed a suit only for permanent injunction as if, the revision petitioner was in possession. But, the respondents filed a detailed written statement, in which, it is clearly denied the alleged possession of the revision petitioner and further stated in the written statement that the revision petitioner and their family had left the suit village in several years ago and only the respondents are in possession and enjoyment of the suit property openly and adversely without any interruption for the past 20 years from the year 1984 by laying a compound wall on the northern side, Cement Pillers on the southern side and also by keeping cow dung waste materials in the suit property and the alleged encroachment dated 08.05.2003 is absolutely false. Further, the learned counsel submitted that in spite of denial of title and possession over the suit property by the respondents, the revision petitioner has not seeking any relief of declaration and only seeking the relief of recovery of possession by way of amendment and therefore, the order passed by the trial court is absolutely correct and no need to interfere in the above said finding. 9. Admittedly, the revision petitioner filed a suit for permanent injunction alone in respect of the suit property in the year March, 2003. The respondents have filed a detailed written statement on 27.06.2003, in which, clearly stated that the revision petitioner was not in possession over the suit property and the respondents are enjoying the suit property more than 20 years by put up the super-structure and the suit is not at all maintainable and it is liable to be dismissed. Long after filing of the above said written statement the revision petitioner filed an I.A.No.2342 of 2003 only on 17.12.2003 as if the respondents have raised men-made fence on 08.05.2003 on the eastern side of the suit property and therefore, prayed for to amend the plaint, so as to seek relief of recovery of possession instead of permanent injunction. 10. As rightly pointed out by the learned counsel appearing for the respondents, the written statement filed on 27.06.2003 itself, it is clearly stated in paragraph 5 as follows :- ''5. This defendant states that he is in possession and enjoyment of the suit property openly and adversely without any interruption by anybody else, muchless by the plaintiff for the past 20 years from the year 1984 by laying a compound wall on the Northern side, cement pillers on the southern side and thereby fence on the Eastern side and by keeping mensure of cow dung waste materials and contract materials in the suit property continuously and that in recognition of the continuous enjoyment and possession by this defendant, the Government by its survey officials have, after personal inspection and measurement of the suit property granted patta to this defendant in respect of the suit property with an extent of 0.0431 square meters viz. 10 cents in patta No.113 on 01.10.97.” 11. The revision petitioner has not filed any reply statement immediately after filing both side written statements. 10 cents in patta No.113 on 01.10.97.” 11. The revision petitioner has not filed any reply statement immediately after filing both side written statements. Long after the above said written statement filed by the respondents, the revision petitioner filed this petition only on 17.12.2003 as if the respondents have raised fence only on 08.05.2003 on the Eastern side of the suit property and prevented the revision petitioner from entering into the suit property. Further, as rightly discussed by the trial court, the revision petitioner, who was examined before the trial court in her chief examination dated 25.11.2003 deposed as if the suit property was in her possession on that day. Therefore, the alleged encroachment on 08.05.2003 is falsified by the above said admission of the revision petitioner itself, as rightly pointed out by the learned counsel for the respondents. Further, the revision petitioner has not at all seeking the relief of declaration but only seeking relief of recovery of possession alone by way of amendment, as if the above said alleged encroachment had only on 08.05.2003 during the pendency of the suit. The respondents have clearly denied the title and possession over the suit property. In the above said circumstances, the revision petitioner ought to have seeking relief of declaration and recovery of possession by paying necessary court fees. But, the revision petitioner only seeking the relief of recovery of possession and not seeking any relief of declaration and not paid the court fee accordingly. 12. The learned counsel appearing for the revision petitioner relied on two decisions of this Court reported in 2004 (5) CTC 729 (T.Gunaseelan v. M.Thamilselvi) and 2009 (4) CTC 213 (C.Rajamani v. C.Rathnabai) and submitted that the amendments to be allowed more liberally to avoid multiplicity of proceedings and also the Court having power to order amendment even after the trial commenced and therefore, prayed for to allow the above said amendment. 13. Per contra, the learned counsel appearing for the respondents relied on three decisions of this Court reported in 2004 (2) CTC 742 (P.Subba Naicker v. Veluchamy Naicker and three others), 2007 (1) LW 526 (Ruby Esther Mary v. Dominic Xavier @ Thomuni) and 2013 (3) MWN Civil 598 (G.V.Ramesh and another v. P.Munusamy) and submitted that after amendment of code of civil procedure, the revision petitioner is not entitled to the relief sought for in the petition. 14. 14. A careful reading of all the decisions relied on by both sides revealed that prior to the amendment of CPC which came into effect on 01.07.2002 by Act 22 of 2002 seeking amendment at any stage was a matter of right. However, if the said amendment after the commencement of trial, amendments of pleading would not be allowed unless the Court comes to the conclusion that in spite of due diligence, the party could not have raise the matter before the commencement of trial. 15. In the instant case, as already discussed, the revision petitioner filed the suit for permanent injunction alone and in the written statement itself, it clearly denied the contention of the respondents and stated that the respondents are in possession for more than 20 years. The revision petitioner has not taken any steps to amend the plaint immediately and only filed belatedly during the part-heard stage. No satisfactory reasons have been given for such delay. Further, the revision petitioner filed proof affidavit for chief examination on 25.11.2003, in which, it is not stated as the respondents have raised men-made fence on 08.05.2003 on the Eastern side of the suit property and prevented the revision petitioner from entering into the suit property as alleged in the amendment petition. Per contra, the learned counsel appearing for the revision petitioner stated in the proof affidavit for chief examination as if the suit property was in possession as on 25.11.2003. Therefore, The affidavit filed by the revision petitioner is false as rightly submitted by the learned counsel for the respondents. 16. As rightly pointed out by the learned counsel appearing for the respondents, the petition is not at all maintainable since the amendment petition is filed during the part-heard stage and also not seeking relief of declaration. Therefore, the order passed by the trial court by dismissing the amendment petition is valid in law and there is no need to interfere with the finding of the trial court. 17. In the result, this revision petition is dismissed and confirmed the order passed in I.A.No.2342 of 2003 by the trial court. Consequently connected C.M.P. is closed. No costs.