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2014 DIGILAW 4324 (MAD)

K. Mayakannan v. S. Elumalai

2014-11-19

K.RAVICHANDRA BAABU

body2014
Judgment The defendants 1 and 2 are the revision petitioners herein. The first respondent as plaintiff filed O.S.No.373 of 2012 on the file of the District Munsif Court, Villupuram, seeking for declaration of his title to the suit property and for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff filed an application under Order 6 Rule 17 CPC for amendment of the plaint only in respect of the description of the property referred to in the plaint schedule. The said application was resisted by the first defendant. The trial Court allowed the application by holding that it is pre-trial amendment and the defendants have not yet filed the written statement. The Court below further observed that granting of an amendment really subserves the ultimate cause of justice and avoids further litigation. Challenging the said order, the present Civil Revision Petition is filed by the petitioners-defendants 1 and 2. 2. Mr.N.Suresh, learned counsel appearing for the petitioners submitted that the admission made by the plaintiff already in the original plaint cannot be permitted to be taken away by allowing the amendment. It is his further contention that while describing the suit property in the plaint schedule, the plaintiff has admitted that the suit property lies West of the property of the first defendant and that it measures about 15 feet East to West on the Northern side and 13-1/2 feet on the Southern side. Having made such description in the suit schedule, the plaintiff cannot be permitted to alter the same by way of amendment, as such alteration would amount to withdrawal of admission already made by the plaintiff. He further contended that the first defendant has also filed a suit in O.S.No.110 of 2013 against the plaintiff in respect of the disputed 3 feet property wherein interim injunction is granted, and therefore, at this stage, the amendment ought not to have been allowed. He further submitted that at the most, the plaintiff can withdraw the present suit and file a proper suit and however, he is not entitled to file the amendment petition. In support of his submissions, he relied on the decision of the Honourable Supreme Court reported in 2013 (9) SCC 349 (S.Malla Reddy Vs. Future Builders Coop. Housing Society) and the decisions of this Court reported in 2013 (4) CTC 443 (Anthonysamy Vs. In support of his submissions, he relied on the decision of the Honourable Supreme Court reported in 2013 (9) SCC 349 (S.Malla Reddy Vs. Future Builders Coop. Housing Society) and the decisions of this Court reported in 2013 (4) CTC 443 (Anthonysamy Vs. Christoraj) and 2013 (3) MWN (Civil) 13 (D.Lalitha and others Vs. Rangasan and others). 3. Per contra, Mr.S.Vijayakumar, learned counsel for the first respondent submitted that there is no admission made by the plaintiff as contended by the defendants. What is sought to be amended is only the boundaries and extent, that too in the description of the suit property in the plaint schedule. He further submitted that as the amendment is sought to be made at the pre-trial stage, the Court has rightly allowed the amendment, since pre-trial amendments are to be liberally considered and allowed. The defendants have not filed written statement so far, and therefore, their right is not at all prejudiced in any manner. Even if they have filed the written statement, yet they are entitled to file the additional written statement in pursuant to the amendment. It is further contended by the learned counsel for the first respondent that the amendment sought for by the plaintiff is supported by the suit documents filed already along with the original plaint, and therefore, the plaintiff has not introduced any new case. 4. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 5. The suit is one for declaration of title and for permanent injunction in respect of the suit property. While describing the suit property, the Western boundary of the same was described as "West of the property of the first defendant". Now, by way of amendment, the plaintiff wants to delete the said description and in its place, wants to add "West of the property of Krishnan and the first defendant" as the Western boundary of the suit property. Likewise, the Eastern boundary is also sought to be altered by adding the Eastern boundary as "East of the properties of Vasudevan and Pandari Gounder", instead of "East of Pandari and Haridevan". Likewise, the Eastern boundary is also sought to be altered by adding the Eastern boundary as "East of the properties of Vasudevan and Pandari Gounder", instead of "East of Pandari and Haridevan". Insofar as the extent of property referred to in the original plaint is concerned, the plaintiff wants to replace the extent as "20 feet East to West being the measurement and 18 feet East to West being the second measurement" in the place of "15 feet East to West on the Northern side and 13-1/2 feet on the Southern side". These amendments which are sought to be made in the description of the suit property, are opposed by the petitioners/defendants 1 and 2, by contending that as if the plaintiff has made some admission in respect of the defendants' right or title to the suit property, more particularly, while describing the Western boundary of the same in the original plaint. I am unable to accept the contention of the defendants 1 and 2, in view of the fact that the Western boundary described earlier and referred as "West of the property of the first defendant", is now sought to be altered as "West of the property of Krishnan and the first defendant". Likewise, the other amendment in respect of the Eastern boundary as well as the extent of the suit property also do not make any sense as if the plaintiff has admitted the right of the defendants 1 and 2. In my considered view, what is sought to be amended is the description of the suit property and such description referring the boundaries and measurement, is not in any way altering the nature of the suit or the nature of the claim. Ultimately, the Court has to decide as to whether the plaintiff is entitled to the decree of declaration and permanent injunction in respect of the suit property or not. Admittedly, the present amendment sought for is a pre-trial amendment and the defendants have not yet filed their written statement. Therefore, the defendants have ample opportunity to dispute and deny the contentions raised by the plaintiff not only in respect of the other plaint averments, but also in respect of the description of the suit property. Admittedly, the present amendment sought for is a pre-trial amendment and the defendants have not yet filed their written statement. Therefore, the defendants have ample opportunity to dispute and deny the contentions raised by the plaintiff not only in respect of the other plaint averments, but also in respect of the description of the suit property. It is needless to say that allowing an amendment in respect of the description of the suit property, does not mean that the Court has accepted the claim of the plaintiff while allowing the amendment. As already stated supra, the rights of the parties have to be adjudicated upon only after trial based upon their respective pleadings and evidence. 6. Learned counsel for the petitioners relied on a decision of this Court reported in 2013 (3) MWN (Civil) 13 (D.Lalitha and others Vs. Rangasan and others) to contend that admission made already cannot be permitted to be withdrawn by the plaintiff. A perusal of the facts of the said case would show that the plaintiffs therein sought to amend the plaint at the stage of the First Appeal, when their suit was dismissed by the trial Court based on the pleadings of the respective parties. Therefore, it is not a pre-trial amendment and on the other hand, such amendment sought to be made by inserting contra stand at the stage of the First Appeal, was rejected. The facts of the present case are totally different, as the present amendment is sought at the pre-trial stage, and therefore, the said decision will not help the petitioners in any manner. 7. The other decision reported in 2013 (9) SCC 349 (S.Malla Reddy Vs. Future Builders Coop. Housing Society), relied on by the learned counsel for the petitioners, is also not applicable to the facts and circumstances of the present case, in view of the fact that the facts of the said case before the Honourable Supreme Court would disclose that the defendant therein wanted to substitute the original written statement with a fresh written statement, which in effect is withdrawing the admission made by the defendant in favour of the plaintiff in the original written statement. Therefore, it was found therein that any admission made by the defendant in the written statement should not be withdrawn. 8. Therefore, it was found therein that any admission made by the defendant in the written statement should not be withdrawn. 8. The other decision relied on by the learned counsel for the petitioners is reported in 2013 (4) CTC 443 (Anthonysamy Vs. Christoraj). A perusal of the facts of that case would show that the amendment was sought at the stage of appeal, by the plaintiff who lost the suit before the trial Court. Therefore, the said decision is also not factually applicable to the present case, as admittedly, the present amendment is a pre-trial amendment. 9. I have already pointed out that the description of the suit property is sought to be altered by minor corrections and such description made originally cannot be construed as the admission of the rights of the other side. Even otherwise, it is contended by the learned counsel for the first respondent that amended description of the suit property is supported by the documents already filed by the plaintiff along with the original plaint, and therefore, the contention of the defendants that there is some admission by the plaintiff, is also not correct. In any event, as the defendants have an opportunity to file their written statement denying all the contentions and claim made by the plaintiff, their rights are not at all prejudiced, especially when the present amendment is a pre-trial amendment, which the Court below has rightly considered and allowed, with which, I find no infirmity or irregularity. 10. Accordingly, the Civil Revision Petition fails and the same is dismissed. No costs. The Miscellaneous Petition is closed.