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2017 DIGILAW 2770 (MAD)

Mariammal v. Perumal Ammal

2017-08-21

T.RAVINDRAN

body2017
ORDER : The revision petitioners/plaintiffs have laid the suit, in O.S.No.160 of 2014, for the reliefs of declaration and permanent injunction. 2. The suit laid by the revision petitioners is being stoutly resisted by the defendants by filing a written statement. Now, according to the revision petitioners, after the closure of their evidence in the matter and when the matter stood adjourned for the cross-examination of D.W.1, it is stated that the respondents, during the course of cross-examination of P.W.1, have suggested that the revision petitioners have not taken steps to measure the suit property and that it is only the respondents, who have been enjoying the suit property by putting rubbish and waste materials etc., and therefore, according to the revision petitioners, the Advocate Commissioner, who had inspected the property concerned also found the presence of rubbish and waste materials etc., in the suit property and inasmuch as the respondents have taken a plea that it is only they, who had done the above said acts by encroaching into the suit property, according to the revision petitioners, they had become necessitated to amend the plaint for the relief of possession after removing the encroachments made by the respondents in the suit property and hence, sought for necessary amendment of the plaint by filing I.A.No.429 of 2016. 3. The said application was resisted by the respondents contending that they had been enjoying the suit property for several years and even in the written statement filed in the year 2014, they have clearly averred in Paragraph Nos.8 and 9 that they had been enjoying the suit property by putting rubbish and waste materials etc., and the revision petitioners have not taken any steps to retrieve the suit property and also lost the title to the suit property by the lapse of time and in such view of the matter, according to them, very belatedly, particularly, after the evidence of the parties had been adduced at a major level, the present attempt on the part of the revision petitioners to amend the plaint is nothing but an introduction of the new pleas and cause of action in the plaint and the said cause of action also being found to be barred by limitation, the amendment application should not be entertained and prayed for dismissal of the same. 4. 4. The Court below, on a consideration of the materials placed, finding that inasmuch as the respondents have already taken a plea in the written statement in black and white they have been enjoying the suit property for several years by putting rubbish and waste materials etc., to the knowledge of the revision petitioners and further, also pleaded that the revision petitioners also lost the title to the suit property by the lapse of time allowed by law and further finding that the amendment sought for by the revision petitioners not made at the earliest point of time and on the other hand, having come to be made at the belated stage of the matter, particularly, after the evidence had been recorded to a substantial level, relying upon the proviso to Order VI Rule 17 C.P.C., dismissed the application preferred by the revision petitioners. Impugning the same, the present civil revision petition has been preferred. 5. It is contended by the learned counsel for the revision petitioners that only on the noting of the physical features of the property after the filing of the report by the Advocate Commissioner and after the suggestions had been put to P.W.1 by the respondents, they had come to know about the heaping of rubbish and waste materials in the suit property by the respondents illegally by encroaching the same, hence, according to him, the revision petitioners had been necessitated to seek for necessary amendments and such amendment, according to him, cannot be construed as an introduction of the new pleas or cause of action in the plaint and hence, the amendment application is entitled for acceptance and in this connection, reliance is placed upon the decisions reported in 2003-2-L.W.21 [Sampath Kumar vs. Ayyakannu and another], (2004) 2 MLJ 620 [T.Gunaseelan vs. M.Thamilselvi], 2004 (4) CTC 231 [Pankaja and another vs. Yellappa (D) LRs. and others], 2007 (5) CTC 595 [Church of South India Trust Association,Tiruchirapalli vs. Kovil Pillai and others] and 2013-1-L.W.213 [Abdul Rehman and another vs. Mohd.Ruldu & others]. 6. Further, according to the learned counsel for the revision petitioners, the plea of limitation by itself would not disentitle the party to claim the relief of amendment when the facts necessitated to do so and therefore, according to him, the Court below is not correct in discountenancing the amendment application and prayed for appropriate orders. 7. 6. Further, according to the learned counsel for the revision petitioners, the plea of limitation by itself would not disentitle the party to claim the relief of amendment when the facts necessitated to do so and therefore, according to him, the Court below is not correct in discountenancing the amendment application and prayed for appropriate orders. 7. On a perusal of the materials placed, it is found that the defendants have filed the written statement in the year 2014 itself and it is, therefore, seen that the revision petitioners are aware about the averments made in the written statement in the year 2014. The respondents in the written statement have clearly stated that they have been enjoying the suit property for several years by putting rubbish and waste materials etc., on the same and further stating that the revision petitioners, on account of the lapse of time in failing to retrieve the property from the respondents, their claim to the suit property is barred by limitation also and in such view of the matter, it is seen that the contentions of the revision petitioners that they had come to know about the encroachment of the suit property by the respondents as above only on seeing the report of the Advocate Commissioner as such cannot be accepted in any manner. That apart, even as per the case of the revision petitioners, suggestions have been put to P.W.1 by the respondents as regards their enjoyment of the suit property by putting rubbish and waste materials etc. Therefore, when it is found that the respondents have made a specific plea about the enjoyment of the suit property for several years and also made the plea that the revision petitioners have lost the title to the suit property on their failure to retrieve the same from the respondents for more than twelve years and thereby the plea of limitation would operate as against the revision petitioners as such, the contentions put forth by the learned counsel for the revision petitioners that the amendment sought for had not introduced any new fact or cause of action cannot be straightaway accepted. 8. 8. As per the proviso appended to Order VI Rule 17 C.P.C., it is found that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It has not been explained by the revision petitioners that their pleas of amendment fall within the proviso to Order VI Rule 17 C.P.C. When it is found that the revision petitioners are very well aware of the averments made by the respondents in the written statement in the year 2014 itself about their enjoyment of the suit property for several years and also the plea that the revision petitioners have lost title to the suit property on account of their failure to retrieve the suit property within the time allowed by law, it is found that the case of the revision petitioners that the encroachment made by the respondents in the suit property had come to their knowledge only recently and not earlier as such cannot be accepted in any manner. On the other hand, it is found that the revision petitioners are very well aware of the position that the respondents had been enjoying the suit property even prior to the institution of the suit and despite the same, suppressing the said fact, they have chosen to lay the suit only for declaration and permanent injunction. Even after the respondents have brought the same to light by filing a written statement to the knowledge of the revision petitioners, they have not cared to amend the plaint before the commencement of trial. That apart, when it is found that the revision petitioners are aware of the above position i.e., the enjoyment of the suit property by the respondents as claimed by them, it cannot be said that the encroachment made by the respondents in the suit property had come to the knowledge of the revision petitioners only recently, after the filing of the Commissioner's report. It is, therefore, found that the Court below has rightly invoked the proviso of Order VII Rule 17 C.P.C., and also following the authorities placed before it, dismissed the application preferred by the revision petitioners. In view of the above position, the impugned order does not call for any interference from this Court. 9. It is, therefore, found that the Court below has rightly invoked the proviso of Order VII Rule 17 C.P.C., and also following the authorities placed before it, dismissed the application preferred by the revision petitioners. In view of the above position, the impugned order does not call for any interference from this Court. 9. Resultantly, the civil revision petition is dismissed. No costs. Consequently, connected civil miscellaneous petition is closed.