K. Krishnan vs Prakalanayaki and Others

Srinivasan, J.—The petitioner herein filed the suit O.S. No. 184 of 1974 on the file of the Sub Court, Dindigul for a declaration that he is a

tenant entitled to the benefits of the Tamil Nadu City Tenants'' Protection Act and for permanent injunction restraining the defendant from

interfering with his possession. That suit was filed on 1.7.1974. The trial Court granted a decree only for declaration but rejected the prayer for

injunction. That judgment was rendered on 17.9.1980. While there was no appeal by the plaintiff, the defendants 1 and 2 preferred an appeal

against the said judgment in the District Court, Madurai North and it was taken on file as A.S. No. 9 of 1982. The plaintiff in the meanwhile filed a

suit O.S. No. 836 of 1980 for recovery of possession and damages. The appeal referred to above was dismissed by the District Court and

defendants 1 and 2 preferred Second Appeal No. 839 of 1982 in this Court. By judgment dated 6.3.1987, this Court allowed the appeal and

remanded the matter to the lower appellate Court for fresh disposal with the following observations:

From the reading of the judgment of the appellate court, it is clear that the plaintiff was a tenant in respect of the suit property on the date of the suit

and that he was in enjoyment and possession of the same, and that he was forcibly evicted from the suit property after the filing of the suit, whereas

the plea of the appellants was that the tenancy came to an end after '' the plaintiff delivered possession of the suit property, once the plaintiff has

been dispossessed he should have modified his claim and asked either for recovery of possession or apply for compensation u/s 3 of the Act. He

has not done any such thing. Therefore, there was an impossibility for the appellate Court to grant an relief in accordance.

Since the appellate Court has not dealt with all the grounds raised by the appellants before it, the findings of the appellate court have to be set

aside and the matter to be remanded to the file of the appellate court for fresh disposal. It would be open to the plaintiff to amend his plaint, if he is

so advised, taking into account the present circumstances and it will also be open to the defendants to meet the new points and claims raised, if

any, in the manner known to law.

After remand the plaintiff, filed I.A. No. 210 of 1989 for amendment of the plaint by introducing paragraph 7(a) alleging that after the filing of

the suit, the plaintiff was dispossessed by the defendants forcibly and by including a prayer for recovery of possession. The application was

opposed by the defendants and the District Judge has dismissed the application. It is against the said order this revision petition has been filed.

The learned District Judge has dismissed the application on the following grounds : - The plaintiff had filed for the relief of possession a

subsequent suit O.S. No. 836 of 1980 and it having been dismissed, had preferred an appeal A.S. No. 22 of 1986 which is pending. The said fact

was not brought to the notice of this Court when the second appeal was disposed of. In view of the fact that for the same relief the plaintiff has filed

a separate suit, the amendment of the plaint in the present suit cannot be granted and consequently he dismissed the application.

Learned Counsel for the petitioner submitted that when this Court while remanding the matter to the lower appellate court had permitted him to

amend the plaint and include a prayer seeking possession of the property, the Court below was in error in dismissing the application for

amendment. It is contended that the court below has no jurisdiction to refuse to grant the relief of amendment of plaint which has already been

permitted by this Court in the second appeal.

I do not agree with this contention. It is seen from the judgment in the second appeal that there is no reference either to the filing of the

subsequent suit O.S. No. 836 of 1980 which was really based upon the finding in O.S. No. 184 of 1974 or to the negativing the prayer for

possession made by the plaintiff. As this Court was not aware of the filing of the said suit, this Court observed that the plaintiff could have the relief

of possession only if he amended the plaint and included a prayer therefore. That would not mean that she plaintiff was permitted to amend the

plaint or that the court below was directed by this Court to grant the amendment.

This Court has used the language very carefully that it would be open to the plaintiff to amend the plaint, if he is so advised taking into account

the present circumstances. That means, the court below while considering the application for amendment should take into account all the present

circumstances and decide whether the relief of amendment should be granted to the plaintiff. The granting of the prayer would certainly prejudice

the rights of the defendants as there is already a finding in O.S. No. 836 of 1980 in favour of the defendants. It is also brought to my notice by

learned Counsel for the respondents that the allegation made by the plaintiff in O.S. No. 836 of 1980 is to the effect that he was dispossessed even

before the filing of O.S. No. 184 of 1974.

Apart from that, it is brought to my notice that the plaintiff filed I.A. No. 1638 of 1978 for amendment of the plaint in this very suit. That was

dismissed by the trial court as belated. Against the said order, the plaintiff filed C.R.P. No. 984 of 1979 and before the revision was taken up for

hearing the suit had been dismissed for default. Hence, the Civil Revision Petition was dismissed as unnecessary. Thereafter, the suit was restored

to file and ultimately a decree was granted in favour of the plaintiff for declaration only. At least at that stage the plaintiff could have preferred a

memorandum of cross-objections or an appeal against the decree challenging the order in I.A. No. 1638 of 1978 and making a claim for recovery

of possession in view of the finding given by the trial Court. But, the plaintiff chose to accept the finding and filed a separate suit for recovery of

possession in O.S. No. 836 of 1980. The decree of the trial Court dismissing the claim for injunction was allowed to become final. Having

adopted that course, it is not open to the plaintiff to approach the Court in the present proceeding for an amendment of the plaint.

Further, the appeal filed by defendants 1 and 2, viz., A.S. No. 9 of 1982 is confined to the grant of declaration of the plaintiffs title and the

rejection of the consequential prayer by the trial court is not the subject matter of the appeal at all. The prayer for amendment would fall outside the

scope of the appeal. The proposed amendment is wholly unnecessary to decide the real questions in controversy in the appeal. Thus, the

requirements of Order 6, Rule 17, CPC are not satisfied.

In those circumstances, the Court below is right in dismissing the application for amendment. Hence, the revision petition fails and it is dismissed.

There will be no order as to costs.