Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1533 (MAD)

Rani v. Dhanalakshmi Ammal

2018-04-25

M.V.MURALIDARAN

body2018
JUDGMENT : 1. This revision is directed against the order dated 28.03.2007 passed in I.A.No.52 of 2007 in O.S.No.289 of 2005 on the file of the Principal District Munsif Court, Tiruvannamalai, allowing the petition filed under Order 6, Rule 17 CPC. The petitioner is the first defendant in the suit. The respondents 1 to 5 are the plaintiffs and the 6th respondent is the second defendant in the suit. 2. The plaintiffs have filed the suit for permanent injunction restraining the defendants, their men, agents, servants and others etc. from interfering with the plaintiffs peaceful possession and enjoyment of the suit property in any manner by putting up any construction over the same. 3. Resisting the suit, the first defendant has filed the written statement. 4. Pending suit, the plaintiffs have filed I.A.No.52 of 2007 to amend the plaint prayer alleging that they have obtained interim injunction in I.A.No.685 of 2005 and the same was made absolute by the Court on 02.02.2006. Despite the injunction order, the defendants have encroached upon the suit property and put up construction. According to the petitioners, the construction made by the defendants, have been evident from the report of the Advocate Commissioner filed in I.A.No.1131 of 2005. Therefore, it is necessary to amend the prayer for mandatory injunction for removal of the construction put up by the defendants. Hence, the plaintiffs have filed the petition seeking to amend plaint by incorporating the prayer for mandatory injunction. 5. Resisting the petition, the first defendant filed the counter stating that the description of the suit property is wrong and the entire construction made by the petitioner herein is in S.No.328/1, which can be classified as road poramboke over which neither the plaintiffs nor their predecessors in interest had any right. Even in the cross-examination of DW1 and her witness, no suggestion has been made to the effect that the petitioner encroached upon any of the portion of the suit property. The construction made by the first defendant is long back and even prior to the filing of the suit. The prayer for mandatory injunction is misconceived and the relief for mandatory injunction valued is also mischievous and unsustainable. 6. Upon consideration of the rival submissions, the trial Court allowed the petition. Aggrieved by the same, the first defendant preferred this revision. 7. The prayer for mandatory injunction is misconceived and the relief for mandatory injunction valued is also mischievous and unsustainable. 6. Upon consideration of the rival submissions, the trial Court allowed the petition. Aggrieved by the same, the first defendant preferred this revision. 7. I heard Mr.R.Rajan, learned counsel for the petitioner and Mr.K.Govi Ganesan, learned counsel for the respondents 1 to 5. Perused the materials available on record. 8. The learned counsel for the petitioner/first defendant submitted that the plaintiffs have filed the petition to amend the plaint only after the commencement of trial, which cannot be entertained. He submitted that the plaintiffs have sought to amend the prayer part alone and the same is insufficient to determine the real controversy between the parties. The learned counsel submitted that the trial Court ought to have seen that the report of the Advocate Commissioner did not clearly reveal the fact of raising of the building in the suit schedule property. It is submitted that the petition to amend the plaint has been filed during the time of arguments with an intention to drag on the proceedings and the trial Court ought to have dismissed the petition. 9. The learned counsel for the respondents 1 to 5/plaintiffs submitted that despite injunction order, the defendants have raised 7 feet building in the suit property and the same has been noted by the Advocate Commissioner. Therefore, the plaintiffs have filed the petition to amend the plaint prayer for mandatory injunction and the trial Court rightly allowed the petition. 10. The point that arises for consideration is whether the trial Court was right in allowing the amendment petition? 11. According to the plaintiffs, after obtaining the interim injunction in the suit, the defendants encroached upon the suit property and put up 7 feet building. In his report, the Advocate Commissioner has noted the construction put up by defendants in the suit schedule property. Therefore, it is necessary to seek amendment of the plaint by incorporating the prayer for mandatory injunction. 12. Admittedly, trial has commenced and both the plaintiffs side evidence and the defendants side evidence were closed. When the suit was listed for arguments, the plaintiffs have filed the amendment petition seeking to amend the prayer for mandatory injunction. 13. Therefore, it is necessary to seek amendment of the plaint by incorporating the prayer for mandatory injunction. 12. Admittedly, trial has commenced and both the plaintiffs side evidence and the defendants side evidence were closed. When the suit was listed for arguments, the plaintiffs have filed the amendment petition seeking to amend the prayer for mandatory injunction. 13. Order 6, Rule 17, of the Civil Procedure Code reads as under: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced unless the Court has come to the conclusion that inspite of the due diligence the party could not raised the matter before the commencement of trial." 14. The power of the Court to allow the amendment is very wide and can be exercised at any stage of the proceeding. The Court should adopt a liberal approach in allowing the amendment and the amendment should not be disallowed on hyper technical grounds. The power is entirely discretionary to be used judiciously on a consideration of the facts and circumstances of each case. The rule allows at any stage all amendments which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. If the amendment changes the cause of action or introduces a new case, the amendment should not be allowed. 15. As for the first part of the provision, the law permits a party to amend his pleadings which are essential for determining the real question in controversy between the parties and as far as this part is concerned, the Courts are to liberally approach the matter. 15. As for the first part of the provision, the law permits a party to amend his pleadings which are essential for determining the real question in controversy between the parties and as far as this part is concerned, the Courts are to liberally approach the matter. In so far as the second part of the provision is concerned, the trial Court shall not automatically or mechanically allow the amendment application when it is sought to be introduced after the commencement of trial and if the Court feels that it can be allowed, then it has to satisfy itself and furnish reasons as to the fact that the party, in spite of his due diligence, could not raise the matter anterior to the commencement of the trial. It is mandatory on the part of the Court while allowing the post trial amendments to record the reasons as regard its satisfaction to the said aspect. 16. In its order, the trial Court stated that pending suit, the defendants have encroached upon the suit property and put up construction and the same has been evident from the Advocate Commissioner s report and, therefore, the plaintiffs were justified in seeking the relief of mandatory injunction by amending the plaint. 17. On a reading of the averment in the affidavit filed in support of the petition, it is seen that the plaintiffs have filed I.A.No.1131 of 2005 to appoint an Advocate Commissioner to inspect the suit property. Pursuant to the order of the Court, the Advocate Commissioner inspected the suit property and filed his report dated 17.01.2006 i.e., before the commencement of trial. It is say of the first defendant that even in the cross-examination of the first defendant, no suggestion has been made to the effect that the first defendant encroached upon the suit property and put up construction. 18. It is pertinent to point out that the trial Court has not given any reason in allowing the petition and has not discussed about the stage of suit and the prejudice, if any caused to the other side, if the proposed amendment is allowed. The trial Court, simply permitted the plaintiffs to amend the prayer for mandatory injunction, without assigning any reason whatsoever as to its satisfaction that the plaintiffs had been diligent. 19. The trial Court, simply permitted the plaintiffs to amend the prayer for mandatory injunction, without assigning any reason whatsoever as to its satisfaction that the plaintiffs had been diligent. 19. On a perusal of the petition, it is seen that nothing has been stated about the averment supporting the proposed prayer for mandatory injunction. The plaintiffs sought amendment in the suit valuation paragraph and the prayer portion alone. Seeking amendment in the suit valuation paragraph and the prayer column alone is not to determine the real controversy between the parties. 20. As stated supra, under Order 6, Rule 17 CPC, when an amendment application is sought to be moved, even though trial Courts are empowered to allow such application, at any stage of the suit, when such amendment petition is filed after inordinate delay without any explanation for delay and more so when such amendment would have the effect of defeating the rights created in favour of the defendants by lapse of time, such amendment should not be allowed. 21. Therefore, I am of the view that the proposed amendment would definitely alter the nature of the suit putting forth a new case. Since the proposed amendment introduces totally a new case, the plaintiffs cannot be allowed to substitute a new case. Further, if the amendment is allowed, it may prejudicially affect the right of the defendants accrued over by such lapse of time. Hence, the plaintiffs cannot be allowed to set forth a plea prejudicially affecting the right of the defendants. There is an improper exercise of discretion in allowing the amendment petition by the trial Court. Hence, the impugned order suffers from infirmity warranting interference. 22. In the result, the Civil Revision Petition is allowed and the order dated 28.03.2007 made in I.A.No.52 of 2007 in O.S.No.289 of 2005 on the file of the learned Principal District Munsif, Tiruvannamalai, is set aside. No costs.