G. Gurunathan and Others vs Mrs. J. Muthulakshmi and Others

M. Duraiswamy, J.—The revision Petitioners are the Defendants 2, 5, 20, 21, 41, 43, 44, 46, 51, 52, 60 and 66 in the suit. The

Respondents 1 to 4 are the Plaintiffs in the suit. The other Respondents 5 to 97 are the other Defendants in the suit.

The revision Petitioners filed the above civil revision petition challenging the fair and final order in I.A. No. 545 of 2009 in O.S. No. 74 of 2007

on the file of the Additional District Court, (Fast Track Court No. 1), Erode.

The Respondents 1 to 4/Plaintiffs had filed the suit in O.S. No. 716 of 1994 on the file of Sub Court, Erode which was subsequently transferred

to the file of District Court (Fast Track Court No. 1), Erode and the suit was renumbered as O.S. No. 74 of 2007 seeking the relief of recovery of

possession and for damages u/s 6 of the Specific Relief Act. The Petitioners herein had filed their written statement and are contesting the suit. The

Respondents/Plaintiffs filed an application in I.A. No. 545 of 2009 seeking for amendment of the pleadings by including the relief of declaration of

title to the suit property. The Petitioners filed their counter on various grounds.

According to the Petitioners, if the amendment application is allowed, the very nature of the suit would be changed. Further, the amendment

sought for is barred by limitation. The Petitioners also contended that the amendment of the plaint in a suit filed u/s 6 of the Specific Relief Act with

one of a regular suit is per se not maintainable, as the scope of enquiry and evidence in both the type of suits are entirely different. According to the

Petitioners, the proposed amendment is not permissible under law.

The trial Court after taking into consideration the case of both sides allowed the application for amendment. Aggrieved over the fair and final

order of the trial Court, the present civil revision petition has been filed.

The learned Counsel appearing for the Petitioners contended that if the amendment application is allowed, the very nature of the suit would be

changed, since the Respondents 1 to 4/Plaintiffs have filed the suit u/s 6 of the Specific Relief Act. The learned Counsel also contended that the

amendment of the plaint in a suit filed u/s 6 of the Specific Relief Act with one of a regular suit is per se not maintainable, as the scope of enquiry

and evidence in both the type of suits are entirely different. In support of her contentions, the learned Counsel relied upon the following judgments:

(i) 1956 Hyd 170 (Gokam Chinna Nagaiah v. Nagaram Baliga and Ors.) wherein it has been held that a distinction has to be drawn between a suit

based upon possessory title and a suit u/s 9 Specific Relief Act. In the former case the Plaintiff would be entitled to a decree only where the

Plaintiff''s possession was sufficient proof to his title while in the latter case the Court has merely to see whether the Plaintiff was in possession six

months prior to the date of the suit. Where a Plaintiff sue for possession on the basis of title and fails to establish title he cannot be granted a decree

for possession u/s 9, Specific Relief Act. It would not be in the interests of justice to grant such a decree to the Plaintiff as the Court having gone

into the question of title and given a finding, if simple decree for possession were given, the Defendants would necessarily have to go and establish

his title over again.

(ii) Sanjay Kumar Pandey and Others Vs. Gulbahar Sheikh and Others, wherein the Hon''ble Supreme Court held that a suit u/s 6 of the Specific

Relief Act is often called a summary suit inasmuch as the enquiry in the suit u/s 6 is confined to finding out the possession and dispossession within

a period of six months from the date of the institution of the suit ignoring the question of title. The remedy of a person unsuccessful in a suit u/s 6 of

the Act is to file a regular suit establishing his title in the suit property and in the event of his succeeding he will be entitled to recover possession of

the property notwithstanding the adverse decision u/s 6 of the Act.

(iii) Ashutosh Chaturvedi Vs. Prano Devi @ Parani Devi and Others, wherein the Hon''ble Supreme Court held that when an application for

amendment of the plaint is allowed and it would change the nature of the suit as a rule the Court will decline to allow amendment for a fresh suit on

the amended claim if it had become barred by limitation on the date of application.

Countering the submissions made by the learned Counsel for the Petitioners, the learned Counsel for the Respondents submitted that the order

passed by the trial Court is just and proper and in support of his contentions, the learned Counsel for the Respondents relied upon the following

judgments:

(i) Church of South India Trust Association, Tiruchirapalli-Thanjavur Diocesan Council and Rev. Chinnaparaj, President, Dharapuram Diocese Vs.

Kovil Pillai and Others, wherein this Court held that amendment could be ordered at any time and at any stage of proceeding for the purpose of

determining real questions in controversy between parties without altering the nature and character of the suit.

(ii) (2008) 4 SCC 632 : 2009 1 L.W. 510 (South Konkan Distilleries and Anr. v. Prabhakar Gajanan Naik and Ors.) wherein the Hon''ble

Supreme Court held that it is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really sub-

serve the ultimate cause of justice and avoid further litigation.

(iii) Puran Ram Vs. Bhaguram and Another, wherein the Hon''ble Apex Court held that the amendment is permissible because proposed

amendment did not change nature of the suit. The suit remained suit for specific performance, nor did limitation come in the way of such

amendment because amendment related back to date of filing of suit which was within limitation.

(iv) (2006) 3 MLJ 70 : 2006 2 L.W. 776 (S.C.) (Rajesh Kumar Aggarwal and Ors. v. K.K. Modi and Ors.) wherein the Hon''ble Apex Court

held that Order 6 Rule 17 declares that the Court at any stage of the proceedings, allow either party to alter or amend his pleadings in such a

manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question

for controversy between the parties. The object of the rule is that Courts should try the merits of the case that come before them and should,

consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does

not cause injustice or prejudice to the other side.

(v) 2002 (4) CTC 189 (Sampath Kumar v. Ayyakannu and Anr.) wherein the Hon''ble Supreme Court held that without changing the basic

structure of the suit amendment can be allowed.

On a careful consideration of the materials available on record and the submissions made by both the learned Counsels, it could be seen that the

Respondents 1 to 4/Plaintiffs have filed the suit in O.S. No. 74 of 2007 for recovery of possession and for damages u/s 6 of the Specific Relief

Act. Thereafter, before the commencement of the trial, the Respondents 1 to 4/Plaintiffs had filed an application under Order 6 Rule 17 in I.A. No.

545 of 2009 seeking for amendment of the pleadings by including the relief of declaration of title to the suit property.

The learned Counsel for the Petitioners mainly contended that there is difference with regard to a filing of the suit u/s 6 of the Specific Relief Act

and a regular suit filed under Order 7 of the Code of Civil Procedure. It is pertinent to extract Section 6 of the Specific Relief Act, which reads as

follows:

Suit by person dispossessed of immovable property:

(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming

through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this Section shall be brought:

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree

be allowed.

(4) Nothing in this section bar any person from suing to establish his title to such property and to recover possession thereof.

u/s 6 of the Specific Relief Act, if any person is dispossessed without his consent of immovable property otherwise than in due course of law

may file a suit within six months from the date of dispossession. Further, no appeal shall lie from any order or decree passed in any suit instituted

u/s 6 of the Specific Relief Act. Further, under Sub-clause 4 of Section 6 of the Specific Relief Act nothing in the Section shall bar any person from

suing to establish his title to such property and to recover possession thereof.

There is difference between a suit on the basis of possessory right as contemplated by Section 6 of the Specific Relief Act and a suit based on

possessory title. Section 6 of the Specific Relief Act is intended to provide a special remedy for a person who, being, whatever his title in

possession of immovable property, is ousted therefrom.

The summary cause of action provided by Section 6 of the Specific Relief Act was not the same thing as the cause of action which is really a

cause of action based on title and that the relief claimed in a suit under the Specific Relief Act was not such as might have been claimed in any suit

or application based on a cause of action.

The only allegations that are relevant for amending a suit u/s 6 of the Specific Relief Act are those of the Plaintiffs'' previous possession and

dispossession by the Defendant. The title of the parties are not relevant and indeed it is specifically provided that the section does not bar any

person from recovering possession of the property on the basis of his title. The result of this provision in Section 6 is that if the Defendants have a

better title than the Plaintiffs, they could not resist the Plaintiffs'' suit for recovery of possession, if the Plaintiffs prove the allegation made by them.

Further, no question of title either of the Plaintiffs or of the Defendant can be raised or gone into in a suit u/s 6 of the Specific Relief Act.

The Respondents 1 to 4/Plaintiff will be entitled to succeed without proving any title on which they can fall back upon, and the Defendants

succeed even though they may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always

subject to a regular title suit and the person who has the real title or even a better title cannot therefore be prejudiced in any way by a decree in

such a suit. It would always be open to them to establish their title in a regular suit and recover back possession. Therefore, Section 6 makes it

clear that the question of title and other issues are not to be gone into by the Court when the suit is filed under 6 of the Act. The question of title is

irrelevant in a suit u/s 6 of the Act.

Section 6 of the Specific Relief Act frowns upon forcible dispossession without recourse to law but does not at the same time declare that the

possession of the evicted person is a lawful possession. The question of lawful possession does not enter the issue at that stage. All that the Court

is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months from

the date of dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally, in a regular suit. The

expression ""any other title"" occurring in the section must mean title other than anterior possession claimed by the Plaintiffs. That would mean that it

would be sufficient for the person in possession to have mere possessory title; the other person should have a title other than possession for

example, ownership.

The judgments relied upon by the learned Counsel for the Respondents/Plaintiffs do not pertain to the suits filed u/s 6 of the Specific Relief Act.

As already stated, there is difference between the suits filed u/s 6 of the Specific Relief Act and the regular suit filed under Order 7 of the Code of

Civil Procedure. Therefore, the judgments relied upon by the learned Counsel for the Respondents/Plaintiffs do not apply to the facts and

circumstances of the present case.

The principles laid down in the judgments relied upon by the learned Counsel for the Petitioners applies to the facts and circumstances of the

present case. The amendment sought for in a suit filed u/s 6 of the Specific Relief Act by including the prayer for declaration of title and for

damages will change the nature and character of the suit. Further, u/s 6(4) of the Specific Relief Act there is no bar for the Plaintiffs from suing to

establish their title to the suit property and to recover back the possession. As already stated since the Plaintiffs have filed the suit u/s 6 of the Act,

they cannot seek for amendment of the plaint for including the prayer for declaration of title and for damages. Therefore, the amendment

application filed under Order 6 Rule 17 of the Code of CPC in a suit filed u/s 6 of the Specific Relief Act by including the relief of declaration and

damages is not maintainable.

That apart, the provisions of Section 6 of the Act does not provide for appeal as against the decree, whereas, in a regular suit for title, the

parties are at liberty to file an appeal as against the judgment and decree. Therefore, the application filed under Order 6 Rule 17 for amendment of

plaint in I.A. No. 545 of 2009 in O.S. No. 74 of 2007 on the file of the Additional District Judge, (Fast Track Court No. 1), Erode is liable to be

rejected. The fair and final order of the trial Court are liable to be set aside. Accordingly, the fair and final order passed in I.A. No. 545 of 2009 in

O.S. No. 74 of 2007 on the file of the Additional District Judge, (Fast Track Court No. 1), Erode are set aside. The civil revision petition is

allowed. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.