Karri Tulesamma vs Poyya Moshen and Another

V. Bhaskara Rao, J.—This revision petition is filed against the order in IA. No. 362/1994 in O.S. No. 262/1987 on the file of I Additional District Munsif, Tanuku, dated 17-4-1995 refusing amendment of plaint under Order VI Rule 17 C.P.C.

A copy of the petition filed along with the material papers in this C.R.P. shows that the amendment became necessary on account of some subsequent developments after the filing of the suit. Therefore, para 10 (a) is proposed to be added. Hence, it begins with the sentence "Since the date of suit the 2nd defendant abandoned evincing interest in the proposed gift of....." It is in the affidavit of the revision petitioner that he proposed to gift the suit schedule land to the 2nd respondent and permitted 1st respondent to keep the construction material in the schedule land, but he started encroaching some other land unauthorisedly and hence the suit for permanent injunction was filed. It is further stated that subsequent to the filing of the suit, the 2nd respondent is not evincing any interest in the matter and whereas respondent No. 1 has no right to keep the material and hence the amendment is necessitated. The petition is resisted by the 1st respondent on the ground that permanent relief of injunction is based on one cause of action and the relief of possession on another cause of action and since they are different, the proposed amendment cannot be permitted.

The learned Munsif considered the rival contentions and held that cause of action for seeking the relief of possession changes from earlier one and that a prayer for mere eviction is not maintainable though such an amendment is permissible. Thus, he dismissed the petition.

Sri C. Ramachandra Raju, learned Counsel for the revision petitioner assailed the above finding and strenuously contended that the case of the revision petitioner has from the beginning been that respondent No. 1 was permitted to store certain construction material in the suit schedule property under a bona fide belief that construction of Church will be taken up by respondent No. 2 by accepting the gift from him and thus, the thrust of the main case is in no way affected by the proposed amendment. He further contended that on account of certain subsequent developments, it has become necessary to seek the relief of possession and hence the impugned order is liable to be set aside. He asserted that a party is entitled to seek the relief of possession under such circumstances.

Sri Kota Bhaskar Rao, learned Counsel for the respondent supported the impugned order and sought for dismissal of the C.R.P.

It is true that the suit was initially filed for perpetual injunction. I perused the plaint and I have also carefully read the proposed amendments so as to add paras 10 (a), 12 (a) and 13 (d). Sri Ramachandra Raju has rightly contended that the substance of the plaint remains same though the relief of possession is sought to be added. The narration of events that led to the filing of amendment petition is already given above and it is evident that on account of certain subsequent developments, the amendment is sought for. It is well settled that a plaintiff who has been dispossessed during the pendency of the suit, is entitled to amend the plaint so as to seek recovery of possession. In this case, respondent No. 1 though he was inducted into possession as a licencee of respondent No. 2, appears to have asserted subsequently that he is in occupation of the premises in his own right. That appears to be the main ground which has necessitated the amendment apart from respondent No. 2 not evincing any interest in the offer of the revision petitioner. On an over all consideration of the plaint as originally filed together with the proposed amendment by way of adding paras 10 (a), 12 (a) and 13 (d), I am unable to see any change in the nature of the suit although a new prayer for possession is sought to be added and that appears to be justified on account of the subsequent developments indicated above. In fact, the learned Munsif also expressed the view that such an amendment is permissible, but according to him relief of mere possession is not maintainable. There appears to be some confusion in the mind of the learned Munsif on this aspect. In cases of declaration of title, it can be said that where the consequential relief can be sought for, mere declaration is not permissible. But this is a converse case where mere possession is sought for by way of amendment. I am of the view that such a relief viz., possession simpliciter is permissible. Hence, the impugned order is liable to be set aside.

In the result, the C.R.P. is allowed and the impugned order is set aside and consequently I.A. No. 362/1994 stands allowed. The learned I Additional District Munsif, Tanuku is directed to permit the revision petitioner-plaintiff to amend the plaint subject to payment of Court fee on 3/4 market value accordingly and to proceed with the suit in accordance with law. There will be no order as to costs.