K.S. Alagarsamy vs P. Natarajan and Another

P. Sathasivam, J.—Plaintiff in O.S. No. 629 of 1990 on the file of District Munsif, Madurai, aggrieved against the Order in I.A.No. 667 of

1995 in dismissing his petition for amendment, has filed the present revision before this Court.

The petitioner herein/plaintiff has filed the said suit, viz., O.S.No. 629 of 1990 against the first respondent herein (first defendant) to declare the

suit property as common lane of the petitioner and consequently grant a decree for permanent injunction restraining him from putting latrine, septic

tank or any other construction in the suit property. It is further seen that originally the trial court decreed the suit and at the instance of the first

defendant, in the appeal the suit was remanded to the trial Court once again to implead the second defendant (2nd respondent herein) as a

necessary party. Now the second defendant has already been impleaded and filed a written statement. It is further seen from the affidavit filed in

support of the said petition that suit property is a common lane and there was no construction therein. The said suit property has been used by the

plaintiff and the 1st defendant only as a passage and there was no construction or any structure. It is further averred that the 1st respondent during

the month of January, 1991 in the absence of the plaintiff, has dug out in the suit property and has put up a septic tank, latrine, and also flush out

basin. As already stated, the plaintiff has originally filed the suit for declaration and consequently relief of injunction. Though the defendant has not

proceeded with further construction, he has not removed the septic tank, latrine and flush out basin put up by him. In those circumstance, the

petitioner seeks the relief of mandatory injunction directing the first respondent to remove the septic tank, latrine, and flush out basin put up by him

in the suit property. The first defendant/first respondent herein has filed a counter affidavit disputing the various averments made by the petitioner.

He also raised an objection that the present claim is barred by limitation.

The court below by Order dated 3.7.1996, after considering the case of all the parties, dismissed I.A.No. 667 of 1995 as barred by limitation.

Aggrieved by the said Order, the petitioner/plaintiff has filed the present revision.

I have heard Mr. S. Kadarkarai, learned counsel appearing for the petitioner and Mr. S. Subbiah for the respondents.

In this case, originally the plaintiff has filed a suit for declaration declaring the suit property shown as ""AGHEA"" in the plaint plan as common

lane, consequently granting a decree for permanent injunction restraining the defendant from putting up latrine or any obstruction in the suit

property. In view of the fact that in January, 1991, according to the plaintiff, the defendant has put up a septic tank, latrine and also flush out basin

in the suit property, without a relief of mandatory injunction directing the first defendant to remove the said obstructions put up by him, it is not

possible to use the common lane even if he ultimately succeeds in the decree for declaration and injunction. The learned counsel appearing for the

petitioner has also relied on Coimbatore Seva Nilayam represented by its Secretary, T.V. Thilliammal, Coimbatore v. R. Narayanaswami Naidu,

1993 1 M.L.J. 17 (NRC) and Bank of India, etc v. Dr. Sainathan, C.S., 1995 2 L.W. 25 in support of his argument.

On the other hand, Mr. S. Subbiah, learned counsel for the respondents reiterating the same defence, namely, if the amendment sought for is

allowed, the defence of limitation would be lost to the defendants, has relied on The Correspondent Amercial Advent Mission School, Thirupur

Range v. J. Jevanthakumar and six Ors., 1989 2 L.W., 249 No doubt, in the decision referred to by Mr. S. Subbiah, the Division Bench of this

Court has held that the plea of limitation raised by the defendant cannot be ignored. The facts in the Division Bench decision is that the plaintiff

sought for declaration that the order of declaration passed against him is void and is of no effect. The plaintiff also wanted damages for wrongful

dismissal. The plaintiff has not reserved his rights regarding and obtained the leave of the Court to ask for any other relief by separate process

subsequently on the basis of the very same order of dismissal. It was not even claimed by the plaintiff that apart from the reliefs asked for in the

suit, any other relief had to be agitated for and obtained before any other forum. Hence the fact took out that all the reliefs, which the plaintiff

would have to ask for, on the ground of the order of dismissal, have been asked for in the suit itself. The plaintiff having died pending the Letters

Patent Appeal, the question of declaring the order of dismissal passed against the plaintiff as void and as of no effect has practically lost is

significant, except for the purpose of considering the relief of damages. In those circumstance, the Bench concluded that there is a legal hurdle with

regard to countenancing the relief of damages, in view of the contention of the learned counsel for the defendant that such a relief is barred by

limitation and inclined to sustain it. The Bench also observed that the declaration as such cannot be availed of by the legal representatives of the

plaintiff for any purpose other than getting the relief of damages. Ultimately the Bench came to the conclusion that the relief of damages asked for

by the plaintiff could not have countenanced on account of the bar of limitation. In view of the fact mentioned above, the Division bench has rightly

concluded that the relief of damages asked for by the plaintiff cannot be granted on account of bar of limitation. However, in our case after filing

the suit that is during the pendency of the suit and that too in the absence of the petitioner, the first respondent has dug out in the suit property and

put up septic tank, latrine and also flush out basin. In those circumstance, if amendment is not allowed, even if the plaintiff succeeds in the relief of

declaration and injunction, he could not implement the said decree. The court below dismissed the said application only on the ground that if the

amendment is allowed then he will take away the right of the amendment on the ground of limitation. The factual position clearly shows that the

alleged construction of latrine, flush out etc., were after the inception of the suit. In those circumstance, unless the plaintiff seeks a decree for

mandatory injunction, he could not use the suit property if he ultimately succeeds in the relief of declaration. At this juncture, the recent decision of

AR. Lakshmanan, J. reported in Coimbatore Seva Nilayam represented by its Secretary, T.V. Thilliammal, Coimbatore v. R. Narayanaswami

Naidu, 1993 1 M.L.J. 17 (NRC) is highly useful for the disposal of our case. In the said decision, the petitioner therein filed a suit for declaration

of title and recovery of possession of a vacant piece of land. During the pendency of the suit, the 13th defendant put up some construction on the

land. The petitioner filed an application for amendment of the plaint. It was dismissed by the Court as barred by limitation. In the revision the

learned Judge has arrived the following conclusion:-

....It is well settled by catena of decisions of this Court and also of the Apex Court that by merely allowing an application for amendment, there is

no adjudication of the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put forth additional

pleadings in answer to the same and that certainly the additional pleadings may take in also the plea of bar of limitation, it is also well settled that the

Court may in appropriate cases allow the amendment even after the statutory period of limitation. In the instant case, the suit was originally filed by

the petition for declaration of title and for recovery of possession of the suit property. Since the petitioner was dispossessed of the land subsequent

to the filing of the suit the proposed amendment petitioner was filed praying for delivery of possession. To such a suit, as held by the Supreme

Court in the decision reported in Abdul Waheed Khan Vs. Bhawani and Others, only Article 142 of the Limitation Act applies. By allowing the

amendment, no injury or injustice is caused to the respondents herein. No jurisdictional error is also involved in this case because of the

amendment being ordered.

The said decision is squarely applicable to our case. The same view has been taken by Subramani, J., in a decision reported in Bank of India, etc.

v. Dr. Sainathan, C.S., 1995 2 L.W. 25. I am also of the same view, namely, the question of limitation should not have been decided by the Court

below at present, since it is a question to be decided on merits with oral and documentary evidence. At present we are concerned with the

amendment application which is governed only by Order 6, Rule 17 of the Code of Civil Procedure. In this case, as already said, the amendment

application should have been allowed since it is not going to change the nature of suit, nor does it affect the rights of the defendant. The defendant

is entitled to put forward all his contention even if the amendment is allowed. Therefore, the Order of the Court below is set aside and the civil

revision petition is allowed. No order as to costs. Consequently, C.M.P.No. 11262 of 1996 is dismissed.