Dasan @ Chellappan and Dennison @ Sasidharan vs Hariharan Nair and Others

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against the order dated 29.8.2008 passed in EA. No. 157/2006 in EP. No.

19/1988 in OS. No. 1966 by the learned the Principal District Munsif, Kuzhithurai, allowing the amendment sought for by the respondents/decree

holders.

The brief facts are as follows:

The respondents 1 to 4 filed the above said suit for recovery of possession and arrears of rent. The said suit was contested by the petitioners that

they have perfected title by adverse possession from the year 1943. The suit was decreed and the same was confirmed by the lower appellate

court in AS. Nos. 354 and 360/1970 and the second appeals in SA. Nos. 1844/1972 and 678/1973 preferred as against the same had been

dismissed by the Principal Bench of this Court, wherein the decree passed by the trial court and the observations made by the lower appellate

court regarding the necessity to identify the property covered by Exs.A3 to A5 at the time of delivery and the question of improvements to be

decided at the time of execution had been confirmed.

The respondents filed the execution petition in EP. No. 18/1988 for delivery of possession and the same was resisted by the petitioners by filing

a counter pointing out that the respondents have not sought for appointment of an Advocate Commissioner to identify the property. The

respondents filed EA. No. 157/2006 for amending the execution petition for inclusion of the prayer for appointment of an Advocate

Commissioner. The said application was contested by the petitioners. The trial court allowed the application on payment of cost of Rs. 500/- to the

petitioner as against which, the petitioners have filed this Civil Revision Petition.

The main contention of the petitioners is that the amendment seeking for appointment of an Advocate Commissioner is clearly barred by

limitation as the execution petition was filed only in the year 1988 i.e. 12 years after the judgement and decree confirmed by this Court in the

second appeals and this amendment being filed in the year 2006, which is beyond the statutory period, the same cannot be allowed.

Mrs. N. Krishnaveni, the learned Counsel for the petitioners placed reliance on the judgement of the Full Bench of the Andhra Pradesh High

Court rendered in the case of Bhoganadham Seshaian Vs. Budhi Veerabhadrayya (Died) and Others, pointing to the observation that normally an

amendment would not be allowed except in special circumstances in order to do substantial justice and in the present case as there is no special

circumstances pleaded by the respondents, the learned Counsel would contend that the amendment ought not to have been allowed by the trial

court. The relevant portion from the said judgement is extracted below:

The amendment would not normally be allowed if the effect of the amendment is to deprive the other side of a valuable right to plead limitation.

Nevertheless there can be exceptional cases where special circumstances demand that in order to do substantial justice between the parties and

with a view to settle all disputes necessary for the effective disposal of the cases amendment may be allowed. The question of limitation is one of

the factors to be taken into account in the exercise of the Court''s discretion as to whether the amendment should be allowed. It would be

erroneous to confuse this discretion of the court with its power to permit amendment. It does not affect the power of the court to order

amendment, if that is required in the interests of justice. Whether there are any special circumstances or not is a question of fact and like any other

fact it has to be decided on the material on record and keeping in view the circumstances of the case.

On the other hand, the learned Counsel for the respondents supported the impugned order by contending that the amendment sought for does

not take away any right which had accrued to the petitioners in the present case and therefore, no prejudice has been caused to the petitioners in

any manner by allowing the amendment.

In the instant case, the Principal Bench of this Court in the above said second appeals confirmed the decree passed by the trial court and the

observations made by the lower appellate court in the above said first appeals. The observations made by the lower appellate court is extracted

hereunder for easy reference:

Exs.A3 to A5 property shall be identified at the time of delivery and the question of improvements shall be decided at the time of execution.

From the above said observations, it is clear that the property mentioned in Exs.A3 to A5 have to be identified at the time of delivery. The

execution petition is pending till date. There cannot be any dispute that the property could be identified only with the help of the Advocate

Commissioner. It is also no doubt true that the respondents have taken out this application after an inordinate delay, but on the said ground the

petition cannot be rejected because the amendment does not include any fresh prayer or relief and does not have the effect of changing the original

character of the execution petition and therefore, there is no question of limitation come in the way.

It has been held by the Division Bench of this Court in the decision rendered in the case of C.T.A.CT. Nachiappa Chettiar v. M.G. Ramaswami

Pillai 1963 2 MLJ 180 following the decisions rendered in the cases of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., and Pirgonda

Hongonda Patil Vs. Kalgonda Shidgonda Patil and Others, that the court should be liberal in permitting amendments whether of pleading in a suit

or of pending execution proceedings in the interests of justice. If there is no injustice to the other side, and the amendment of pleadings or

enlargement of reliefs of execution is necessary for the purpose of determining the real question in controversy between the parties, the amendment

should be permitted and not refused.

In the case of Ravindran and Another Vs. Dandayudhan and Others, , the Kerala High Court has held thus:

The provisions were only enabling provisions and they were not intended to affect the rights of parties or the powers of the court to make such

orders as might be necessary for the ends of justice and Section 151 specifically saves such powers which were already there. It was the duty of

the Court to ascertain any defect in the EP as provided in Order 21 Rule 17 and allow it to be remedied, Courts existed for dispensation of justice

and not for its denial on technical grounds.

It is no doubt true that the reasons shown by the respondents for omitting to include the prayer for appointment of an Advocate Commissioner

in the execution petition even at the earlier stage is not so sound, but it is not disputed that the petitioners have suffered a decree and the same has

to be executed against them. They cannot rely on mere technicalities to defeat the claim of the respondents. As rightly contended by the learned

Counsel for the respondents, by appointing an Advocate Commissioner to identify the property no right accrued to the petitioners is taken away

and only they are put to gain by allowing the respondents to amend the execution petition. The petitioners can insist the court for appropriate

direction to the Advocate Commissioner to note down the improvements made in the said property when the Advocate Commissioner visit the

property for the purpose of identifying the property. Therefore, I am of the considered view that there is no illegality or irregularity in the order

passed by the trial court in allowing the said amendment.

In view of the reasons aforesaid, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed. However, the

cost awarded by the learned Judge is not proportionate, considering the delay caused in filing the said petition. Therefore, the respondents shall

pay an additional cost of Rs. 1500/- apart from the cost ordered by the court below to the petitioners within a period of four weeks from the date

of receipt of a copy of this order and it is made clear that if any default is made in payment as stipulated above, the petition shall stand dismissed

automatically without any further reference to this Court.