Chinna Pillai Udayar vs Natesa Udayar and Murugesan

R. Banumathi, J.—This revision, preferred under Art. 227 of the Constitution of India, is directed against the order dated 28.02.2003.

passed in 1.A. No. 262/2002 in O.S. No. 112/2000 on the file of the Additional District Munsif, Ariyalur, dismissing the petition filed under Or.6,

R. 17 CPC. declining the amendment of Plaint. Plaintiff is the Revision Petitioner. O.S. No. 112/2000:- The Plaintiff filed this suit for permanent

injunction relating to the house in Village Natham S. No. 508/04 Illappaiyoor Village. AB wall on the southern side of his house is in dispute. The

Defendant owns site on the Southern side of the AB wall. He has no right or interest in the suit AB wall. While so. the Defendant was digging pit

on the southern side of the AB wall, thereby, attempting to cause damage to the Wall. The Defendant has no right to put up any construction, either

on the wall or on the southern side of it. The Defendant is hound to leave two feet space on the southern side of AB wall. If he puts up the

construction, wall would be very much damaged. Hence the Plaintiff has filed the suit for permanent injunction relating to the southern side AB wall

and the house, restraining the Defendant and his men from in any way encroaching the southern side property and putting up construction,

damaging the suit AB wall.

Earlier, as per order in I.A. No. 322/2000. Commissioner was appointed who has inspected the suit property and filed his report stating that the

Defendant had dug three pits on the southern side of AB wall. Thereafter, the suit was decreed exparte on 29.10.2001. On the application filed by

the Defendant, the exparte decree passed against him was set aside. Thereafter, the Defendant has filed the Written Statement on 24.09.2002.

Denying the allegations in the Plaint, the Defendant has filed the Written Statement contending that he is entitled to 1''.6"" on the southern side.

According to him, the Defendant''s house measures 14''.9"" and he is having southern side land 1''.6"" totalling 16''.3"" which falls short of his

enjoyment. The Defendant has further alleged that the Plaintiff has no right over the AB wall and the AB wall belongs to the Defendant. According

to the Defendant, adjacent to the AB wall, without causing damage to the wall, he has put up pillars and completed the construction resting his

house on the AB wall. The Plaintiff has no right to prevent the Defendant from putting up the construction. It is further alleged that in the village,

there was a compromise arrived at between the parties wherein the Plaintiff has agreed to withdraw the suit. But the Plaintiff has not kept up his

promise in withdrawing the suit and is not entitled to the relief of permanent injunction. After the Written Statement was filed, a second

Commissioner was appointed who has filed his Report.

I.A. No. 262/2002 : Alleging that the Defendant had encroached the southern portion and that he had put up construction, causing damage to

the wall, the Plaintiff has filed this application for amendment of the plaint for mandatory injunction for removal of the disputed construction by the

Defendant.

Resisting the application, the Defendant has filed the counter statement, contending that the Plaintiff is in enjoyment of what is entitled to.

Contending that the Plaintiff cannot claim more than his entitlement, the Defendant resisted application that the application for amendment to amend

the plaint for mandatory injunction, cannot be allowed.

Upon consideration of the averments in the affidavit and in the counter statement, the learned District Munsif dismissed the application inter-alia

finding :-

(i) that the application had been filed after the commencement of trial i.e. after the examination of P.W.s 1 and 2.

(ii) that the proposed amendment would change the nature and character of the suit introducing totally a new case.

(iii) There is no reason for the delay in filing the application which cannot be allowed, since the application has been filed after the commencement

of the trial.

Assailing the impugned order, the learned counsel for the revision petitioner/Plaintiff has contended that only when the Defendant had filed the

Written Statement, the Plaintiff had an understanding of his contention, denying the Plaintiffs'' right and title in the suit AB wall. Submitting that

immediately after the filing of the Written Statement, the Plaintiff was diligent in filing the amendment application, the learned counsel for the revision

petitioner/Plaintiff has contended that the trial court erred in saying that the amendment application had been filed belatedly. It is further contended

that when pending suit, the Defendant had put up the wall, by encroaching on the southern side of AB wall, reducing the measurements of the

Plaintiffs, the Court ought to have taken note of the same and allowed the application. Placing reliance upon the decision of the Supreme Court

reported in Sampath Kumar Vs. Ayyakannu and Another, , the learned counsel for the revision petitioner/Plaintiff has submitted that the proposed

amendment seeking to amend the prayer for mandatory injunction would not alter the character of the suit, but would only add a prayer in view of

the subsequent events.

The Respondents/Defendants had been served with a notice. But had not entered appearance. The contention urged by the

Respondents/Defendants in the trial court had been taken into consideration for the disposal of this revision petition.

The main point arising for consideration is. whether the trial court was right in dismissing the amendment application on the ground that it is

belated and that it introduces a new case and whether the impugned order suffers from material irregularity warranting interference.

The suit property relates to : S. No. 508/24 Illupaiyoor Village, East West 28 feet North South 17''.6"" Tiled house thereon and AB wall on the

southern side. The main dispute relates to AB wall on the southern side.

Alleging that the Defendant is attempting to encroach the southern side of AB wall and attempting to put up construction, the Plaintiff has filed

the suit for permanent injunction in June 2000. Advocate Commissioner visited the suit property in June 2000. in the report filed in June 2000,

Commissioner has stated that he has noted the soil being dug for three pits. Digging of the soil and the pit dug had been clearly noted in the first

report of the Advocate Commissioner as is seen from the following :

Upon service of the suit summons, the Defendant entered appearance; but he has not filed the Written Statement. Hence for non-filing of the

Written Statement, the suit was decreed exparte on 29.10.2001. I.A. No. 261/2002 Application u/s 5 of the Limitation Act was filed to condone

the delay of 185 days in filing the application to set aside the exparte decree and the same was allowed. I.A. No. 261/2002 Application under

Or.9 R. 13 CPC to set aside the exparte decree (passed on 29.10.2001) was also allowed and the exparte decree passed against the Defendant

was set aside. Thereafter, the Defendant has filed the Written Statement on 24.11.2002. Denying the Plaintiffs'' right over AB wall and asserting

the Defendants right and further stating about the completed construction, just adjacent to AB wall, inclusive of the AB wall, in his Written

Statement, the Defendant has pleaded :

The above construction put up by the Defendant on the northern side of his property, i.e. on the southern side of AB wall is objected to by the

Plaintiff. Thereafter, on the application filed by the Plaintiff, second Advocate Commissioner was appointed, who has filed his report. In the second

report, the Commissioner has clearly noted the construction abutting the AB wall and inclusive of AB wall. The Commissioner has noted the

construction of the Defendant house including the disputed construction on the AB wall which reads :

The Plaintiff seeks to amend the plaint for removal of the above encroachment noted by the Commissioner. From the Reports of the Advocate

Commissioners, it is seen that after the filing of the suit, construction had been put up. Whether the disputed construction affects the right of the

Plaintiff or whether the Defendant was entitled to put up such construction is the contentious issue to be adjudicated in the trial. Since the disputed

construction has been put up after the trial, said to be affecting the Plaintiffs right over the AB wall. Plaintiff is justified in filing the amendment

application to amend the plaint for mandatory injunction, thereby seeking removal of the disputed construction. The proposed amendment does not

alter the character of the suit. From what is detailed above, it is clear that the proposed amendment is only consequent to the subsequent events.

On the facts and circumstances emerging from the Commissioner''s Report, the Plaintiff is entitled to seek for the relief of mandatory injunction.

Having put up the construction, after the suit, the Defendant could have never been taken by surprise by the proposed amendment of the plaint.

The Defendant himself has alleged about the completion of the construction in the Written Statement. While so, the application for amendment is

only sequel to the Written Statement filed by the Defendant as well as the reports of the Advocate Commissioner. The Defendant has raised

serious dispute regarding the measurements. The same is to be adjudicated in the trial upon consideration of the oral and documentary evidence to

be adduced by the parties. That cannot be the reason for declining to alter the proposed amendment.

The suit was filed for permanent injunction: the amendment is sought for to include the prayer for mandatory injunction. The Plaintiff has

explained how the construction had been put up and the necessity for the amendment of the Plaint The proposed amendment for mandatory

injunction does not in any way alter the basic structure of the suit as found by the trial court. When the suit for permanent injunction was sought to

be amended by converting it into a suit for declaration of title and recovery of possession, the Supreme Court held that such an amendment was

permissible since the basic structure of the suit is not altered. That amendment application was allowed even after lapse of eleven years after the

suit was filed. In K.P.S. Sathyamoorthy Vs. State of Tamilnadu and Sri Kanchi Sangarachariar Sreemath Jayendra Saraswathi Swamigal, Kanchi

Kamakodi Peedathipathy, Sree Saradha Madam Sannithanam, the Supreme Court has held thus:

In the present case the amendment is being sought for almost 11 years after the date of the institution of the suit. The Plaintiff is not debarred

from instituting a new suit seeking relief of declaration of title and recovery of possession on the same basic facts as are pleaded in the plaint

seeking relief of issuance of permanent prohibitory injunction and which is pending. In order to avoid multiplicity of suits it would be a sound

exercise of discretion to permit the relief of declaration of title and recovery of possession being sought for in the pending suit. The Plaintiff has

alleged the cause of action for the relief''s now sought to be added as having arisen to him during the pendency of the suit. The merits of the

averments sought to be incorporated by way of amendment are not to be judged at the stage of allowing prayer for amendment. However, the

Defendant is right in submitting that if he has already perfected his title by way of adverse possession then the right so accrued should not be

allowed to be defeated by permitting an amendment and seeking a new relief which would relate back to the date of the suit and thereby depriving

the Defendant of the advantage accrued to him by lapse of time, by excluding a period of about 11 years in calculating the period of prescriptive

title claimed to have been earned by the Defendant. The interest of the Defendant can be protected by directing that so far as the relief''s of

declaration of title and recovery of possession, now sought for. are concerned the prayer in that regard shall be deemed to have been made on the

date on which the application for amendment has been filed.

The above principles squarely apply to the case in hand where the amendment application had been filed as sequel to the allegations in the

Written Statement and in the facts and circumstances emerging from the reports of the Advocate Commissioners. 17.P.W.S 1 and 2 were

examined. At that stage, the amendment application was filed. The learned District Munsif declined amendment mainly on the ground that the

application has been belatedly filed after the commencement of the trial. The trial court was of the view that if the proposed amendment is to be

allowed, it would cause prejudice to the Defendant and his defence. The above reasoning of the lower court is erroneous and cannot be sustained.

At this juncture. we may usefully refer to the relevant dates.

Suit filed on - 13.06.2000 First Commissioner Report filed on - June 2000 Exparte Decree, later restored on 29.10.2001 Written Statement filed

on - 24.09.2002 Second Commissioner''s Report - 31.12.2002 Amendment Application - 14.11.2002.

From the above, it is clear that the amendment application was filed immediately after the filing of the Written J Statement. There is no delay in

filing the amendment application. It may be that the trial might have commenced. But there is no delay on the part of the Plaintiff in filing the

amendment application. Under the CPC (Amendment) 2002.

A new proviso has been added to the rule, namely that no application for amendment of the pleadings shall be allowed after the trial has

commenced, unless the Court conies to the conclusion that in spite of due diligence, the party could not have raised the matter before the

commencement of trial. Thus after the trial of the case has commenced, no application for amendment of the pleading shall, be allowed unless the

Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

In this case, there is every reason to conclude that the Plaintiff could not have raised the matter earlier. As stated earlier, the suit was decreed

exparte on 29.10.2001. Later on the application filed by the Defendant, the exparte decree was set aside on 11.09.2002. Written Statement was

filed on 24.09.2002. Only upon the filing of the Written Statement, the Plaintiff had come to know about the right asserted by the Defendant, over

AB wall. The Plaintiff could not take steps earlier since the suit itself was decreed in October 2001. Only when the Defendant entered appearance

again and filed the Written Statement, the Plaintiff could take proper steps for amending the plaint. The learned District Munsif has not properly

appreciated the conduct of the parties.

The learned District Munsif has not taken note of the conduct of the Defendant in allowing the suit to be decreed exparte and thereafter putting

up the disputed construction. The proposed amendment is sought for only in sequel to the Written Statement and the reports of the Advocate

Commissioner. The impugned order declining amendment causes serious prejudice to the Plaintiff and the same cannot be sustained. Hence setting

aside the impugned order this revision is to be allowed.

Therefore, order dated 28.02.2003. made in I.A. No. 262/2002 in O.S. No. 112/2000 on the file of the Additional District Munsif, Ariyalur is

set aside and this revision petition is allowed. Consequently. C.M.P. No. 16685 of 2003 is closed. The learned Munsif is directed to afford

sufficient opportunity to the Plaintiff to carry out the amendment and afford further opportunity (one month time from filing the Amended Plaint) to

the Defendant to file additional Written Statement if any, and dispose of the matter in accordance with law.