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2020 DIGILAW 2369 (MAD)

Sundarraj v. V. Periyasamy

2020-12-14

RMT.TEEKAA RAMAN

body2020
JUDGMENT : (Prayer: Petition filed under Section 227 of Constitution of India, praying to set aside the impugned order dated 06.02.2020 made in I.A.No.1054 of 2019 in O.S.No.307 of 2014 on the file of I Additional District Munisf Court at Kallakurichi.) 1. The plaintiff is the Revision Petitioner herein. 2. The petitioner/plaintiff filed a suit in O.S.No.307/2014 before the I Additional District Munsif Court, Kallakurichi for the relief of permanent injunction in respect of the suit property. 3. In the above suit, a written Statement was filed on behalf of the respondents/defendants, evidence has been let in and the arguments have also been completed. When the suit is posted for judgment, the petitioner/plaintiff filed I.A.No.1054/2019 seeking the following prayer: “to amend the plaint pertaining to suit survey number as “529” instead of “523/1” and of the suit village as “Akkarapalayam” instead of “Kachirapalayam”, which amendment if permitted would not change the character of the suit as the suit property situates on the border of both the villages.” The said application was dismissed by the Court below and hence the present Civil Revision Petition. 4. Heard, the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 5. The learned counsel appearing for the petitioner would contend that subsequent to the filing of the written statement by the defendants, who have pointed out that the allegation in the schedule can only be sorted out by appointment of an advocate commissioner alone who can identify the property with the help of the revenue officials and without any delay, a petition for appointment of advocate commissioner to inspect the suit property in I.A.No.368/208 was filed and allowed. And only based on the finding of the commissioner who though identified the suit scheduled property had mentioned that the survey number is wrongly mentioned. Therefore, the learned counsel would submit that the amendment is necessary for effective adjudication of the lis between the parties. 6. After hearing the learned counsel for the parties who tendered the submissions and after pursuing the Lower Court records it appears that the revision petitioner has filed the suit for permanent injunction in respect of the suit property, namely S.No.523 /1 in Kachirapalayam. The evidence has already been let in by either parties and an Advocate Commissioner has been appointed pursuant to the order and he has also filed a report. The evidence has already been let in by either parties and an Advocate Commissioner has been appointed pursuant to the order and he has also filed a report. It is seen from the Advocate Commissioner’s report that at the time of inspection, as identified by the parties, he has inspected the site and filed the report. The Advocate Commissioner is required to inspect the suit property which is specifically mentioned in the schedule in the plaint. It appears that he has chosen to inspect the property as identified by the parties and filed a report. Based upon such Advocate Commissioner’s report, the present I.A.No.1054/2019 seems to have been filed stating that Survey Number has to be mentioned as 529 instead of 523/1 and village name has to be amended from Kachirapalayam to Akkarapalayam and as such, it is prayed that Survey Number as well as village name to be substituted from the original schedule of the property mentioned in the suit. 7. The petitioner/plaintiff has not stated any specific reason for not mentioning the the correct survey number and village name while filing the original suit. Perused the Written Statement. There is a specific plea in the Written Statement disputing as to the very identity of the suit property, survey number and village name. Even after filing of the Written Statement, no action has been taken by the plaintiff to amend the schedule of the property, if he has chosen to do so. 8. In the trial, evidence has been let in with reference to S.No.523/1 and also with reference to Kachirapalaym and on completion of the evidence, arguments have also been completed. At this juncture, if the proposed amendment is allowed by changing the survey number and also the village name, it would certainly amount to introducing new case and the suit is for permanent injunction and therefore it also amounts to different cause of action. 9. In such circumstances, the defendants in the suit and their rights will be prejudiced since the pleadings, oral evidence and documentary evidence has been let in during the trial with reference to S.No.523/1 of Kachirpalayam village and therefore the proposed amendment, in my considered view, amounts to changing basic nature and character of the suit and also introducing of new case and new cause of action, which will not be permitted in law. 10. 10. The reasons assigned by the petitioner in this application that only after filing the report by the Advocate Commissioner, he came to know that the suit property is originally situated in S.No.529 and not in 523/1 in Akkarapalayam village, are not cogent and convincing in order to entertain the petition. The Court below has rightly dealt with the issue in a considered manner and I do not find any irregularity or illegality in order to interfere with the same by this Court. 11. In the result, this Civil Revision Petition fails and the same is hereby dismissed. No costs.