K. Muthiayan vs D. Ranganathan and Ramamurthy

R. Banumathi, J.—This revision arises out of the fair and decretal order dated 7.11.2001 made in I.A. No. 1396/2001, on the file of the

Additional District Munsif Court, Virudhachalam dismissing the petition filed under Order 6 Rule 17 CPC and declining the amendment relating to

the description of the suit property. The Plaintiff is the Revision Petitioner.

The suit property relates to S. No. 353/7B-1.80.0 hectares - 2.19 acres on the southern side. Case of the Plaintiff is that the suit property

belonged to his father Kathirvelu Udayar. After his death, the family properties were divided as per the details thereon. The suit property was

omitted to be included in the suit O.S. No. 1398/1974. The Plaintiff''s brother Krishnamurthi Udayar had earlier relinquished his interest in the suit

property in favour of the Plaintiff. Since then the Plaintiff has been in possession and enjoyment of the suit property. Patta stands in his name; he is

paying the kist to the suit property. The Defendants father Velusami Udayar is alleged to have purchased 0.71 acres from Kathirvelu Udayar who

is the brother of the Plaintiff. Total extent of suit survey number is 2.90 acres. The Plaintiff has been in possession of 2.19 acres of the suit

property. The Defendants approached the Plaintiff to sell the suit property to them which was declined by the Plaintiff. Aggrieved over the same,

the Defendants are attempting to cause interference to the Plaintiff''s possession and enjoyment of the suit property. Excepting 0.71 acres, the

Defendants have no manner of right or interest in the area 2.19 acres, which he is in the possession of the Plaintiff. There was exchange of pre-suit

notice between the parties. The Plaintiff has filed the suit for declaration and Permanent Injunction, alternatively the Plaintiff has also prayed for

delivery of vacant possession.

Denying the right of the Plaintiff in the suit property Defendants have filed the Written Statement contending that originally, the suit survey

number was registered as 353/9 in the ''A'' register and its actual extent was only 1.42 acres and not 2.90 acres. According to the Defendants,

their father Duraisami had purchased the entire extent of the property in S. No. 353/7 along with other properties and are in enjoyment of the

same. The purchased properties have been sub divided as S. No. 353/7B - 0.71 acres and other survey numbers. In the sale Deed in favour of

Duraisami Udayar, the southern boundaries has been mistakenly stated as 357/7B instead of 353/7B, which is incorrect. The Defendants'' father

Duraisami had purchased 356/8 - 0.50 acres and 353/8, 356/8. While being so, Plaintiff has no right in the suit property.

I.A. No. 3170/1991 :-

At the instance of the first Defendant, Commissioner was appointed, who has filed his report along with the plan (on 23.7.1999).

I.A. No. 1396/2001 :-

Alleging that the suit property has been wrongly described, the Plaintiff filed this amendment application seeking for amendment of the description

of the suit property. In the proposed amendment, the Plaintiff has almost sought for changing three boundaries. The details of the amendment is

elaborated in the amendment petition. The amendment application was resisted by the Defendants contending that by the proposed amendment the

Plaintiff alters the location of the suit property and thereby, trying to introduce a new case. In their counter statement, the Defendants have also

alleged that the application has been belatedly filed when the case is in the part-heard stage. The examination of the witnesses had been over and

the case was posted for hearing the arguments. At that stage, the Plaintiff has filed the application with a view to delay the trial proceedings and

hence the amendment cannot be allowed.

Upon consideration of contentions of both parties, the learned District Munsif has dismissed the petition inter-alia finding :-

(i) That the suit is in the part-heard stage and if the proposed amendment is allowed, the trial would be prolonged in the light of change of

description of the property;

and;

(ii)The proposed amendment changes the entire character of the suit, introducing a new plea.

Aggrieved over the dismissal of the amendment application, the Plaintiff has preferred this revision. The learned counsel for the Revision

Petitioner/Plaintiff has contended that the lower Court grossly erred in holding that the Plaintiff and his brother have sold the property on the

northern and southern side of the suit property in entirety to the father of the Defendants. It is further submitted that when the Plaintiff only seeks for

change of the boundaries, it would not in any way introduce a new case nor would it cause prejudice to the Defendants.

Short points that arises for consideration in this revision are :-

(i) Whether the proposed amendment, filed after examination of witnesses and conclusion of trial, could be allowed;

(ii)In declining the amendment, whether the impugned order suffers from material irregularity warranting interference ?

By the proposed amendment, the Plaintiff seeks to amend the description of the suit property. For proper understanding, description of the suit

property could be elaborated thus :

Description as per Plaint Proposed Amendment

Remaining extent of 0.71 Duraisami Udayar F/o Defendants

in S.No.351/7B R.S.356/8

________________ ________________

| | | |

Anand | | | |

Eswara | | | |Defendant''s

Koil | 2.19 |Defendants | |lands in

Maniyam | | |Lands | |S.No. 352/5

| | | |

| | | |

|______________| |______________|

Vaithyalingam & others lands Land which the Plaintiffs & others

have sold to Duraisami

Contending that the Plaintiff seeks to amend the boundaries only on two sides, the learned counsel for the Revision Petitioner/Plaintiff submitted

that the proposed amendment would not in any way substantially change the property and seeks for setting aside the impugned order. The learned

counsel for the Revision Petitioner has also submitted that an opportunity is to be afforded to the Plaintiff to amend the plaint, lest it would cause

serious hardship to the Plaintiff.

Countering the arguments, the learned counsel for the Respondents/Defendants has submitted that by attempting to change the boundaries and

description of the suit property, the entire property would be changed. Pointing out that the suit is of the year 1991 and that the trial has been

completed and case has been posted for hearing the arguments, the Plaintiff was not justified in seeking to amend the description of the property.

Submitting that the proposed amendment would cause serious prejudice, the learned counsel has further alleged that the amendment has to be

declined, in view of the inordinate delay in filing the application.

By careful consideration of the above, it is clear that the Plaintiff has earlier described the suit property as 2.19 acres on the southern side. By

seeking the amendment and by seeking to alter the northern boundaries, the Plaintiff alters the location of the property that is located on the

Northern side instead of the Southern side. Further, the Plaintiff also seeks to include the amendment for inclusion of trees also. By careful

consideration of the proposed amendment, it is seen that the proposed amendment is not mere correction of erroneous description of property in

respect of the Survey Number, but it totally alters the location of the property and also the extent of the property. In short, by the proposed

amendment, the suit property does not remain the same. The trial Court has rightly ordered that the proposed amendment changes the entire

description of the property and thereby, changing the position of the parties.

By and large, the amendment would not be allowed where there is unconscionable delay in filing the application. The suit is of the year 1991.

The suit was taken up for trial; examination of the witnesses on the Plaintiff side and also the Defendant side have been completed. The case was

posted for arguments. At that stage, the Plaintiff has filed the amendment application. In view of the inordinate delay in filing the amendment

petition, the same cannot be allowed. If the amendment petition is allowed, it would not only alter the nature of the suit, but would also displace the

evidence already recorded, driving the parties to adduce fresh evidence thereby, again reopening the trial.

The suit has been filed for declaration and Permanent Injunction alternatively for possession. From the averments in the plaint, it is seen that

prior to the suit, there was exchange of notice between the parties. The Plaintiff has issued a pre-suit notice on 14.10.1991. The Defendants have

sent reply notice on 11.11.1991. From the averments in the plaint, it is seen that the Defendants seem to have briefly set forth their defence plea in

the reply notice sent by them. Had there been little more diligence exercised by the Plaintiff, the Plaintiff could have very well filed the suit after

giving the correct description of the property. Circumstances indicate that the Plaintiff has not exercised due diligence. In fact, at the instance of the

Defendant, Commissioner was also appointed. The Commissioner has also filed elaborate Report along with the plaint, pointing out that the

Defendants'' property in S. No. 356/8 and the suit S. No. 353/7B are lying in one stretch. The Commissioner has also pointed out that the

Defendants property S. No. 356/8 is on the Northern side. Commissioner''s Report was filed as early as on 23.7.1999. Even after the

Commissioner''s Report, the Plaintiff has not chosen to file any amendment application. Had there been little more care exercised, the Plaintiff

could have applied his mind to the same. But that was not to be so. The Application has been belatedly filed after the conclusion of the trial and

when the case has been posted for arguments.

Taking note of the inordinate delay in filing the application and that the proposed amendment changes the entire description of the property, the

learned District Munsif has rightly dismissed the amendment application. The impugned order does not suffer from any infirmity or material

regularity warranting interference. This revision has no merits and is bound to fail.

Therefore, the fair and decretal order dated 7.11.2001 made in I.A. No. 1396/2001 by the Additional District Munsif Court, Virudhachalam

is confirmed and this revision is dismissed. Consequently, CMP No. 488/2002 is also dismissed. In such circumstances of the case, there is no

order as to costs.