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Chinnapillai & Others v/s Angappa Udayar & Others

    Civil Revision Petition No. 2105 of 1996 & CMP. No. 11591 of 1996

    Decided On, 28 July 2000

    At, High Court of Judicature at Madras


    B.T Seshadri for Petitioners. T.D. Vasu for Respondents.

Judgment Text

1. The plaintiffs in the suit in O.S. No. 1000 of 1990 are the petitioners herein who have filed the above Civil Revision Petition praying to set aside the fair and decretal order dated 13.06.1996 made in 1. A. No. 423 of 1996 in the said suit by the Court of Additional District Munsif, Salem.

2. In fact, the petitioners in the Civil Revision Petition who are the plaintiffs in the suit have filed the petition in I.A. No. 423 of 1996 before the court below under Order 6, Rule 17 CPC praying to permit the petitioners to amend the plaint and the said petition having come to be dismissed with costs, the petitioners therein have come forward to institute the above revision on certain grounds as brought forth in the grounds of Civil Revision Petition.

3. The contentions of the petitioners before the trial Court are that they have filed the suit for a permanent injunction restraining the defendants from interfering with their possession of the suit properties; that a p

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tition filed along with the suit praying to grant an order of interim injunction was also pending disposal; that on account of the respondents obstructing a mamool pathway leading to the petitioners' lands, further trespassing into a portion of the suit property, yet another suit in O.S. No. 863 of 1994 had also been filed for recovery of possession of the encroached portion of 60 cents; that by oversight, the petitioner failed to amend the suit in hand to recover possession of the 60 cents trespassed by the first defendant and since at present he is advised that he should suitably amend the plaint to include the prayer for declaration of title and for recovery of possession of the 60 cents of land on the south side of the suit property the petitioners had to file the said petition.4. On the part of the respondents therein, they would file the counter stating thereby that the trial had commenced in the suit and the evidence on the petitioner's side was also recorded and that PW1 was also cross-examined wherein he had deposed to the effect that he was in possession and enjoyment of the property from the year 1990; that in the circumstances of the case wherein the petitioners have also filed another suit in O.S. No. 863 of 1994, the amendment sought for is invalid in law; that in order to dispossess defendants 2 and 4 with wrong allegations that these defendants encroached into 60 cents of lands into the suit property on 3.9.1994, the petitioners have come forward to file the amendment petition with ulterior motives and if the same is allowed, that too at the stage when the suit is under trial, great prejudice would be caused to the rights of the respondents and if at all the petitioner could seek his remedy in the suit filed specifically for that purpose and would oppose the petition vehemently thus, ultimately praying to dismiss the same.5. The court below, in consideration of the above facts and circumstances brought forth and having regard to the position of law, would not only remark that the petition had been filed to fill up the lacuna caused in the trial of the suit due to cross examination of the petitioner/plaintiff by the respondents and if the petitioner is allowed to carry out the amendment sought to be introduced, it would cause prejudice to the respondents and further commenting that it is a suit for bare injunction and had been filed in the year 1990 and subsequent to the filling of the same, a change of circumstance has been brought forth warranting the amendment as per the petitioner, but since the same is at the close of the petitioner's evidence, in these circumstances, it is not desirable to allow the amendment petition and would ultimately in the interest of justice, the lower court would dismiss the said petition with costs. 6. During arguments, the learned counsel appearing for the petitioners would cite three already decided cases which are as follows: (i) 1990 - 1- L.W. 363 (Gopi Pillai v. Dr. Swamy);(ii) (1993) 1 MLJ 375 (Radhakrishnan v. Auvadai Ammal);(iii) 2000 (1) CTC 334 (Jayabaskar, P. v. Saraswathi). So far as the first judgment cited above is concerned, it is held that the amendment has been sought for rather at early stage that is before the trial was over and it neither alters the nature of the suit nor it works any serious injustice to the defendant who would certainly be entitled to file an additional written statement in order to rebut the allegations made in the amended plaint.7. Admittedly, it is a case in which the amendment has been sought for at rather early stage and before the trial and the same was not pending trial. Any amendment sought for during trial would not have been termed at rather early stage so as to apply the norms of the above judgment to the facts of the present case. Here is a case in which the specific allegation of the respondents is that the petitioner after letting in evidence and during cross examination having admitted certain facts regarding the suit property and to overcome the evidence recorded which is against his interest, has with ulterior motives, come forward to file the amendment petition and hence on such specific allegations since the amendment is opposed by the other side, the first judgment cited above is not the answer and, therefore, the norms observed therein cannot be applied to the facts of the present case.8. So far as the second judgment cited above is concerned, a single judge of this court has held that ?the plaintiff has stated all the facts with regard to his title and also his possession and by way of the amendment, he seeks to introduce a new prayer based on the pleadings already brought forth by him in the plaint and applying the ratio cited in an earlier decision, the learned single Judge had arrived at the conclusion to hold that the plaintiff therein was entitled to have the plaint amended.? Even though, it is further held in the above case that ?even after the closing of the evidence, the plaint was allowed to be amended in the judgment reported in 93 L.W. 317 and had ultimately allowed the petition.?9. But, here the defence is that certain facts have been admitted on the part of the petitioners during trial and in order to overcome the admitted part of the facts which are against the petitioners, they have come forward to attribute a new theory and whether at this juncture, sticking to the facts of this case, the petition is to be allowed is the only point for determination. In the opinion of this court, it is definitely an attempt made on the part of the plaintiffs to alter the very structure of the plaint changing the cause of action, have sought for the amendment and hence, the same is impermissible in law. Therefore, this decision is also not accepted by this court for application to the facts of this case. 10. The third decision cited above is also delivered by a single Judge of this court wherein the amendment of the plaint was sought for projecting an additional relief based on same set of facts, for pre-emptive right of purchase of the shares of defendants 1 to 16, under Section 22 of the Hindu Succession Act against the order of allowing the amendment holding that the right of pre-emption could be decided only at trial along with other issues, the cause of action for amendment and of the suit being different, it was held that the amendment could be allowed since the court found that amendment did not change the nature of the suit and hence, the lower court ordering the amendment to be carried out has been held correct in the said judgment.11. The facts of the case in hand as discussed above has absolutely nothing to do with the facts of the case cited above. Hence, this judgment is also not applicable to the case in hand, in any manner.12. In short, the amendment sought for before the court below on the part of the plaintiffs, is ill-motivated, ill-designed and in order to overcome certain admissions made on the part of PW1 in the cross examination which is susceptible to work against their own case. Therefore, creating a new theory that is said, to have occurred long back for which a case in O.S. No. 863 of 1994 had been specifically filed by the same plaintiffs which is pending trial for one and the same reason alleged therein, after a lapse of two years, the petitioners have artificially come forward to file the petition in the name of amending the plaint and in these circumstances, if the petition is allowed, such an order will not only change the cause of action thus altering the very structure of the suit, but also will cause great prejudice to the rights of the defendants since they may not be able to set their defence thereafter, on the altered circumstances of the ease by the plaintiff in the midst of trial.13. In these circumstances, it is not at all desirable to allow an amendment petition of this sort as has been filed by the plaintiffs and hence the lower court has rightly rejected the claim of the plaintiffs and dismissed the petition with costs. This court does not at all see any valid or tangible reason to cause its interference into the well considered and well merited order passed by the court below.14. In the above process of filing this revision since the very suit which was under trial had been jeopardised besides causing much inconvenience for the respondents, it is hereby further held to award a cost of Rs. 500/- that is to be paid in favour of the respondents herein.In result, the above Civil Revision Petition fails and the same is dismissed with a cost of Rs. 500/-. The fair and decretal order dated 13.6.1996 made in I.A. No. 423 of 1996 in O.S. No. 1000 of 1990 on the file of the Court of Additional District Munsif, Salem is hereby confirmed.Consequently, CMP. No. 11591 of 1996 is also dismissed.

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