A. Palani and another vs Jayarama Konar, Assistant Divisional Engineer, (Opeation and Maintenance), Tamil Nadu Electricity Board, Thiruvannainallur, Thahgavel and Ramachandran

M. Karpagavinayagam, J.—The petitioner are the plaintiffs. They filed an application before the trial Court for amendment of the plaint seeking the prayer of recovery of possession, instead of permanent injunction. This application was dismissed by the trial Court as belated one. Hence, the Civil Revision Petition. Mr. T. Gandhi, the learned Counsel for the petitioners, while challenging the impugned order would submit that the reasoning given by the trial Court in dismissing the application for amendment that it is a belated one, is not a legal one and therefore, the impugned order has to be set aside, especially, when Order 6, Rule 17, C.P.C. would state that the application for amendment can be filed at any stage of the trial.

This submission made by the learned Counsel for the petitioners is refuted by the learned counsel for the respondents.

I heard the Counsel for the parties and also gone through the impugned order and other record.

It is true that as laid down by this Court in Natesan v. Govindasami, 1988-2-L.W. 397, the amendment application can be allowed under Order 6, Rule 17, C.P.C. to avoid multiplicity of proceedings. It is also equally true to contend that mere delay in filing the application would not be the ground to reject the prayer for amendment.

But, in the peculiar facts and circumstances of the case, I am of the view that the application was not only filed not in time, but also would reflect the lack of bona fide.

There is no dispute in the fact that the petitioners filed the suit for declaration of title and permanent injunction in the year 1987. According to the petitioners/plaintiffs, in the plaint, they have stated that they have been in possession and enjoyment of the suit property. In the very same year, the defendants filed a written statement stating that they have been in possession and enjoyment of the suit property. It is specifically stated in the written statement that the patta and kists receipts have been issued in the name of the defendants and as such, they have been in possession and enjoyment of the suit property.

Admittedly, there is no reply by the petitioners/plaintiffs to the written statement, when the suit was pending before the District Munsif Court, Thirukkoilur. After seven years, the case of transferred to the District Munsif Court, Ulundurpet on 19.1.1995 and the second plaintiff was examined as P.W.1 on 6.11.1996, 12.11.1996 and 14.11.1996. Again he was examined on 6.1.1999 and 8.1.1999. These factors are not in dispute.

After the examination of P.W.1 was over, the petitioners/plaintiffs have filed the application under Order 6, Rule 17 requesting for amendment of the prayer by seeking the relief of recovery of possession, instead of permanent injunction. A counter was filed in the said application giving details to show that the application was filed belatedly and it suffers from lack of bona fide. The trial Court dismissed the said application observing that the same was filed with consideration delay in order to protract the proceedings.

The learned Counsel for the petitioners while arguing the matter cited (1) Saraswathi Ammal v. Ponnammal, 2000 (III) = 2000 -2-L.W. 794; (2) Sanjeevi Ammal v. Narasimha Naicker, 2000 (III) C.T.C. 389, and (3) Natesan v. Govindasami, 1988-2-L.W. 397.

The proposition laid down by this Court as contained in the above decisions is correct in view of the provisions contained in Order 6, Rule 17, C.P.C.

In Natesan v. Govindasami, 1988-2-L.W. 397, one other judgment of this Court in Gobi Pillai v. Doraiswami, (1980) 1 M.L.J. 370 = 93 L.W. 17, has been referred. In that decision, it has been held that the Court should not encourage a party to keep quiet till the end and then come forward with an amendment to put the other party by surprise. It is also held that when there is an attempt to amend the plaint by the plaintiff to protract the proceedings, then, the said practice has to be deprecated and discouraged.

In the light of the above observation made by this Court, if we look at the fact situation in this case, it is clear that the petitioners/plaintiffs have not come forward with the amendment application in time and with clear details. The reading of the application, which was filed on 24.8.1999, would show that the respondents/defendants have been trespassing into the property. In the affidavit filed along with the said application, it is stated

So, in the affidavit sworn to by the petitioners/plaintiffs, there is no detail regarding as to when the trespass was committed. But, in the petition, it is stated that the trespass was committed by the respondent/defendants on 3.6.1997. If it is so, there is no reason as to why this factor had not been given by P.W.1 when he was examined on 6.1.1999 and 8.1.1999.

The learned Counsel for the respondents, on the strength of the deposition given by P.W.1, would categorically state that he did not mention anything about the alleged trespass on 3.6.1997.

Under those circumstances, I am not able persuade myself to agree with the contention urged by the learned Counsel for the petitioners. Consequently, the Civil Revision Petition is liable to be dismissed. In the result, the Civil Revision Petition is dismissed. Consequently, C.M.P. No. 142 of 2001 is also dismissed. It is open to the petitioners under Order 7, Rule 7, C.P.C. to request the trial Court, on the basis of the materials placed, to mould the relief before the suit is finally disposed of.