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2015 DIGILAW 3056 (MAD)

T. Thombaralingam v. State rep. By District Collector, Tiruvalllur District

2015-09-11

K.K.SASIDHARAN

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ORDER The petitioner woke up from slumber during the final stage of the original suit filed by her and filed applications to reopen the matter, to implead a party to the suit and to amend the relief. The applications were dismissed by the Trial Court both on the ground of delay and on merits. Feeling aggrieved, the unsuccessful petitioner is before this Court. Facts in summary:- 2. The petitioner filed a suit in O.S.No.113/2005 against the District Collector, Tiruvallur and the Tahsildar, Ponneri, praying for a decree of permanent injunction restraining them from altering the revenue records pertaining to the property bearing No.10, Sirulapakkam Village, Ponneri Taluk. The third respondent was impleaded as a party to the suit, pursuant to her application. 3. The Trial Court framed issues taking into account the plaint averments and the written statement filed by the third respondent. The parties adduced evidence and thereafter, the matter was posted for arguments. While so, the petitioner filed three interlocutory applications with three distinct reliefs. The petitioner wanted to amend the plaint and convert the suit into one of declaration. 4. The interlocutory applications were opposed by the third respondent. The learned trial Judge considered the interlocutory applications in the light of the background facts and dismissed the applications. Submissions:- 5. The learned counsel for the petitioner, by placing reliance on the judgment of the Supreme Court in Ramesh Kumar Agarwal vs. Rajmala Exports Private Ltd. And others, ( 2012 (5) SCC 337 ), contended that the approach of the Court should be to minimize the litigation. According to the learned counsel, the petitioner only wanted amendment of the prayer to convert it as a suit for declaration instead of injunction. It was contended that no prejudice would be caused to the respondents by amending the plaint and inclusion of another party as defendant. It is his further contention that the respondents could be compensated by awarding cost. According to the learned counsel, the learned Trial Judge committed a jurisdictional error by dismissing the applications. 6. The learned counsel for the 3rd respondent while justifying the impugned orders contended that there is absolutely no merit in the case pleaded by the petitioner. According to the learned counsel, the petitioner wanted to keep the litigation alive and it was only for the said purpose, applications were filed after concluding evidence and during the time of arguments. 6. The learned counsel for the 3rd respondent while justifying the impugned orders contended that there is absolutely no merit in the case pleaded by the petitioner. According to the learned counsel, the petitioner wanted to keep the litigation alive and it was only for the said purpose, applications were filed after concluding evidence and during the time of arguments. The learned counsel placed reliance on the judgment of the Supreme Court in Mashyak Grihnirman Sahakari Sanstha Maryadit vs. Usman Habib Dhuka and others, 2013(9) SCC 485 , in support of his contention that belated applications require to be rejected. Analysis:- 7. The petitioner filed the suit in O.S.No.113 of 2005 against the revenue authorities. The prayer was to restrain the District Collector and Tahsildar from altering the revenue records in respect of the property. The suit was filed in 2005. 8. The cause of action for filing the suit appears to be the arbitrary action taken by the Tahsildar to alter the revenue records. The third respondent while opposing the prayer in O.S.No.113/2015, contended that the vendor of the petitioner has no right to sell the property. She was only a Director without any power to sell the property owned by the company. The third respondent further contended that patta has already been issued to Selvi Padmavathi on 3 May 2005. The written statement was filed on 16 August 2005. 9. Though the third respondent has taken up a specific contention that the patta has already been transferred in the name of Selvi Padmavathi, follow up action was not taken by the petitioner within a reasonable time to amend the plaint. 10. The Trial Court framed issues taking into account the pleadings. The petitioner examined witnesses on his side. The third respondent also examined witnesses to prove her contentions. 11. The dates and events clearly show that the matter was adjourned from time to time. Finally, when the suit was posted for arguments, the petitioner filed the interlocutory applications. 12. The affidavit filed in support of the interlocutory applications does not contain any material suggesting that the petitioner has shown due diligence. 13. The Trial Court framed issues on 19 October 2010. The suit was included in the list on 7 March 2012. The petitioner filed his proof affidavit on 14 March 2012. P.W.1 was cross examined on 15 June 2012. 13. The Trial Court framed issues on 19 October 2010. The suit was included in the list on 7 March 2012. The petitioner filed his proof affidavit on 14 March 2012. P.W.1 was cross examined on 15 June 2012. Thereafter, P.W.2 was cross examined on 27 June 2012. D.W.1 was cross examined on 18 July 2012. The matter was posted for arguments on 6 November 2012. It was only at that point of time, the petitioner filed the interlocutory application for reopening, amendment of plaint and to implead Mrs.Savithri as party to the suit. 14. There is no dispute that the approach of the Court should be to avoid multiplicity of litigation. However, that does not mean that application for amendment could be filed at any point of time, without demonstrating that the petitioner was diligent. 15. In Rameshkumar Agarwal v. Rajmala Exports (P) Ltd., (2012) 5 SCC 337 , plaintiff filed application for amendment immediately after filing written statement and before commencement of trial, to explain the details as to how payment was made. While upholding the order permitting amendment, the Supreme Court said:- 21. It is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. 16. Here in the subject case, the plea regarding denial of title was taken by the third respondent in her written statement. The petitioner, in spite of knowledge about such denial, proceeded with the suit. The suit originally filed against the District Collector and Thasildar, for a mere injunction, is now sought to be converted as a suit for declaration. The matter should start once again from the very beginning, in case amendment is allowed. The petitioner, in spite of knowledge about such denial, proceeded with the suit. The suit originally filed against the District Collector and Thasildar, for a mere injunction, is now sought to be converted as a suit for declaration. The matter should start once again from the very beginning, in case amendment is allowed. The District Collector and other revenue authorities should not be made to contest a suit in which no relief is claimed against them. Once it is found that patta has already been transferred, there is no question of proceeding against the revenue authorities. 17. The petitioner failed to show due diligence and as such, the learned Trial Judge was perfectly correct in dismissing the application. I do not find any error or illegality in the orders passed by the learned Trial Judge, warranting interference by this Court by invoking the jurisdiction under Article 227 of the Constitution of India. However, I make it clear that this order would not stand in the way of filing appropriate application before the Trial Court to withdraw the suit with liberty, as provided under Order 23 Rule 1 of Code of Civil Procedure, in case the petitioner is so advised. 18. In the upshot, I dismiss the civil revision petitions. No costs. Consequently, connected miscellaneous petitions are closed.