Anthony and Another vs Arunachalapandian and Another

AR. Lakshmanan, J.—Heard both sides. The revision is directed against the order in I.A.No. 190 of 1994 in O.S.No. 160 of 1988 on the

file of Sub-Court, Tenkasi dismissing an application for amendment of the plaint.

The petitioners who are the plaintiffs in the suit filed O.S.No. 160 of 1988 on the file of the Sub-Court, Tenkasi for declaration that the suit

second schedule is a common pathway for both the plaintiffs and the defendants and for consequential injunction restraining the defendants from in

any manner putting up sunshades or steps in the common pathway and also from interfering with plaintiffs use of the common pathway.

Pending the suit, the trial court granted injunction in favour of the petitioners herein and the same is in force. It is the case of the petitioners that

subsequent to the grant of interim injunction, the respondents trespassed into the suit property and put up construction, violating the order of interim

injunction.

A Commissioner was appointed in IA.No. 579 of 1988 and he was directed to submit a report about the physical features of the properties.

The Commissioner has also submitted a report. As the respondents have put up construction, contrary to the interim injunction granted by the trial

court, the petitioners though-that it has become necessary for the petitioners to seek a relief of mandatory injunction to remove the construction.

Hence they filed I.A.No. 190 of 1994 in O.S.No. 160 of 1988 on the file of the Sub-Court, Tenkasi under Order 6, Rule Order 6, Rule 17 and

Section 151, C.P.C. for amendment of the plaint. The lower court dismissed the petition on the only ground that the petition is belated.

I have heard the arguments of both sides. It is argued on behalf of the petitioners that the lower court has erred in rejecting the petition for

amendment of the plaint on the ground that the petition is belated by invoking Article 113 of the Limitation Act, which on the facts and

circumstances of the case will not fall under Article 113 of the Limitation Act. As the construction done by the defendants in the common pathway

was subsequent to the grant of interim injunction by the lower court, the injury caused to the plaintiffs/petitioners will constitute as a perennial

trespass viz., trespass day-in and day-out upon their rights in the suit common pathway. It is well-settled that mandatory injunction under such

circumstances in the only remedy as the action of the defendants was unlawful as alleged by the petitioners herein and contrary to the interim

injunction. Therefore as rightly pointed out by the counsel for the petitioners, it cannot be said that there is a delay on the part of the petitioners

because the obstruction to the plaintiffs constitute a continuing cause of action.

In similar cases, courts have taken a view that once a wrong is done subsequent to the grant of interim injunction, it has to be removed by an

order in the interest of justice. When such being the case, the Court below ought to have allowed the petition for amendment. In the instant case,

the Commissioner''s report says that there is a construction put up by the respondents herein. Therefore, in my opinion the contention of the

petitioners must be right as the existence of the construction is a continuing wrong. Therefore, the petitioners, in my opinion, is entitled to seek for

amendment of the plaint by including the prayer for mandatory injunction as well. This court, in my view, is entitled to take note of the changed

circumstances where by reason of the subsequent events, the original relief claimed has become inappropriate or where the litigation gets shortened

or where the consideration of the subsequent events gives compete justice to the parties, the courts are duty bound to take note of the changed

circumstances.

It is settled law that it is open to the court including a court on appeal or revision to take notice of the events which have happened after the

institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally had, by reason

of subsequent change of circumstances become in appropriate or where it is necessary to take notice of the changed circumstances in order to

shorten the litigation or to do complete justice between the parties. The above principle laid down by the Supreme Court is squarely applicable to

the facts of the case on hand.

It is also contended by the petitioners in this case that the respondents did not obey the order of injunction which is also the subject matter of the

suit and put up the construction after the injunction order was granted and contrary to the tenor of the injunction order. Therefore, inam of the

opinion that the petitioners application for amendment should be ordered in view of the changed circumstances and in order to shorten the litigation

and also to do complete justice between the parties.

The relief now asked for by the petitioners by way of amendment is not a new cause of action, as contended by the counsel for the respondents.

It is neither foreign to the scope of the suit nor will alter the nature of the suit as contended by the counsel for the respondents.

The only point argued by the learned counsel for the respondents is the delay on the part of the petitioners herein in filing the application for

amendment of the plaint. Even if there is any delay, should not, in my opinion, stand in the way of the petitioners seeking an amendment. As already

pointed out, the amendment was necessitated due to the subsequent development which had happened during the pendency of the litigation and

therefore no question of coming in the way since during the pendency of the revision there was an injunction operating against the respondents.

Moreover the courts have to take note of the events which had happened after the institution of the suit and offer relief to the parties in the changed

circumstances.

Since the order passed by the lower court is irregular and contrary to law, the same is liable to be interfered with by this court. The amendment

prayer for in I.A.No. 190 of 1994 is therefore ordered as prayed for.

In view of the amendment now being ordered the respondents will have time to file further written statement. This court has now only ordered

amendment in view of the changed circumstances, it is always open to the defendants/respondents herein to raise the plea of limitation at the time of

trial.