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2020 DIGILAW 2281 (MAD)

Jesu v. V. Virgin

2020-12-02

N.SESHASAYEE

body2020
JUDGMENT : N. Seshasayee, J. 1. The present Petition is filed by the Plaintiffs in O.S. No. 15 of 2007 on the file of the Additional District Munsif Court, Valliyur, Tirunelveli District. 2. The brief facts are that the Plaintiffs have laid a Suit for Declaration of Title and for Injunction with regard to 2 Items of properties. Both First & Second Schedule of properties are said to have been comprised in Survey No. 409/5-E. It appears that the Court has appointed a Commissioner for Local Inspection, who had visited the properties and filed his report which he had prepared with the assistance of the Taluk Surveyor. Now the Plaintiff understands that the First Schedule property is comprised in Survey No. 409/5-G and that the Second Schedule property is only a common pathway. Therefore, the Plaintiffs have filed an Application for amending the Plaint. This was resisted by the Defendants and subsequently, the Trial Court dismissed the Petition. The said dismissal Order is now under challenge. 3. Heard both sides. 4. It must be stated that what is sought to be corrected vis-à-vis is the change of Survey Number of the First & Second Schedule of properties and the same is not going to change the character of the Suit. Ultimately, identity of the property on lie is not in dispute, but only the title to the same. 5. With regard to the Second Schedule of property, it appears to have been a climb down by the Plaintiffs in the sense they had originally claimed absolute title of Second Schedule property. Now they say that it is only a Common Pathway. Therefore to start with, the Defendants cannot feel aggrieved with regard to amendment sought so far as the Second Schedule property is concerned. 6. It is settled law that in any Suit, the burden of proof is on the Plaintiff and that an amendment correcting or introducing certain particulars such as these, do not constitute the proof of the facts so amended. If, on contrary, amendment is not so allowed, it should prejudice the substantial interest of the Plaintiff. 7. 6. It is settled law that in any Suit, the burden of proof is on the Plaintiff and that an amendment correcting or introducing certain particulars such as these, do not constitute the proof of the facts so amended. If, on contrary, amendment is not so allowed, it should prejudice the substantial interest of the Plaintiff. 7. The learned Counsel for the Respondents also brought to notice of this Court that a practice has crept in the Trial Court that they are insisting on filing a fresh copy of the amended Plaint, and if it is not so filed, the Court invariably dismisses the Suit which forces the Plaintiff to approach this Court under Article 227 of the Constitution. He further submitted that Order 6, Rule 1 of the Code of Civil Procedure only requires that the amendment once allowed, has to be carried, out, and there is no provision in it to require the litigant to file an amended copy of the pleadings. 8. There is merit in what the learned Counsel for the Respondents has submitted. When the Court requires the Plaintiff to file an amended copy of the Plaint, it is for the convenience of the Court since anything written in red ink might be squeezed within or, between other the Paragraphs, and it may be inconvenient to decipher to read what is so written. But the Court cannot dismiss a Suit for non-filing of an amended copy of the Plaint. Having stated thus, the learned Counsel for the Plaintiff should also realize the difficulties of the Court and he is required to assist the Court in every possible way which also includes the filing of an amended copy of the Plaint. 9. The learned Counsel for the Respondents/Defendants would submit that the Suit is of the year 2007, and that this is the second time the Plaintiff/Revision Petitioner has filed an Application for amending the Plaint. This Court takes note of the same. The Respondents/Defendants were forced to travel with this case for the last 13 years, with the Plaintiff seeking piecemeal amendments to the Plaint. Since the case is not just old but is almost ancient, the Trial Court is directed to complete the trial of the case on day to day basis, even by Virtual hearing and dispose of the case on or before 31.3.2021. 10. Since the case is not just old but is almost ancient, the Trial Court is directed to complete the trial of the case on day to day basis, even by Virtual hearing and dispose of the case on or before 31.3.2021. 10. In conclusion, this Court is inclined to allow this Application. Accordingly, the Order, dated 25.10.2017 passed in I.A. No. 379 of 2017 in O.S. No. 15 of 2007 by the Additional District Munsif, Valliyoor, Tirunelveli District, is set aside. In view of the Covid-19 situation and loss of income for almost everyone, this Court chooses to spare the Revision Petitioner of payment of costs. No Costs. Consequently, connected Miscellaneous Petition is closed.