Madakannu Ammal and Others vs S. Natarajan through his power Agent, S. Mariappan

C.S. Karnan, J.—This petition has been filed by the Petitioners/Defendants 1, 3 to 8 to set aside the order dated 25.02.2010 and made in I.A. No. 1248 of 2009 in O.S. No. 152 of 2001 on the file of the I Additional District Munsif Court, Tirunelveli.

The short facts of the case are as follows:

(i) The suit was filed by the Plaintiff against the revision Petitioners / Defendants herein for injunction restraining the Defendants and their men, agents etc., from interfering with the possession of the Plaintiff. Thereafter, the Plaintiff has filed an interlocutory application for amendment of the prayer in the plaint, stating that the prayer was for declaring and injunction instead of interim injunction and to direct the Defendants 1, 3 to 8 to be evicted from the suit property and handover the possession to the Plaintiff.

(ii) The said amendment petition was opposed by the Defendants on various grounds. After considering the plea of both the parties, and arguments advanced by the learned Counsels on both sides, the learned I Additional District Munsif, Tirunelveli was pleased to allow the amendment petition. Against the decree and decretal order of the learned I Additional District Munsif, Tirunelveli, the above revision petition has been filed.

The learned Counsel for the Petitioners/Defendants argued that the injunction suit was filed by the Plaintiff restraining the Defendants in the year 2001, stating that they are enjoying the suit property without any interference. Thereafter, in the year 2009, the amendment petition was filed after filing a written statement and additional written statement. At this stage, the amendment petition was allowed. Therefore, the character of the suit has totally been changed. Hence, the amendment application is not maintainable.

In support of his contention, the learned Counsel for the Petitioner cited a judgment in the case of Rajkumar Gurawara (Dead v. S.K. Sarwagi and Co., Pvt. Ltd., reported in (2008) 8 MLJ 307 (SC). The relevant portion of this judgment reads as follow:

Code of Civil Procedure (5 of 1908), Order 6 Rule 17 ? Amendment of pleadings ? Application filed by Plaintiff seeking amendment ? Impugned order passed by High Court ? In spite of clear information in reply notice prior to filing of suit and specific plea taken in written statement of D-1, Plaintiff did not take steps to get plaint amended suitably ? Only during stage of arguments, Plaintiff came up with application seeking amendment of pleadings ? Though even after commencement of trial, parties to proceeding entitled to seek amendment, in light of factual details of present case, action of Plaintiff at stage of argument cannot be permitted ? Plaintiff not only failed to satisfy prescribed conditions but even on merits his claim liable to be rejected ? All such relevant aspects duly considered by High Court ? Appeal dismissed.

The learned Counsel for the Respondents in the above civil revision petition and the Plaintiff in the suit argued that the Defendants are occupying the suit property by way of trespass, while the suit is pending on the file of the trial Court. Therefore, there is a necessity to evict the Defendants from the suit property. As such, the amendment petition was filed. The same was allowed on merits after contest. The character of the suit will not be changed since the Plaintiff has claimed the property on the basis of the title deeds. The Defendants have also claimed rights over the property on the basis of their own documents. The documents which are in possession with both the parties are original and earlier documents which were in existence even before filing of the suit. Therefore, the character of the suit cannot be altered.

In support of his contention, the learned Counsel for the Respondent cited a judgment in the case of R. Dhanalakshmi v. Senthilkumari reported in (2007) 6 MLJ 557 Mad. The relevant portion of this judgment reads as follow:

Code of Civil Procedure (5 of 1908), Order 6 Rule 17 ? Suit for injunction ? Contention by Plaintiffs that they purchased suit property from seller who obtained same under compromise decree issued by competent Court ? Impugned order, decreeing suit and granting decree of declaration also by directing amendment of plaint ? Held, thought prayer sought for was only for injunction, it is factually a title suit ? Claim is under compromise decree and core issue is title to suit property ? As such, in absence of any prejudice caused to parties, procedure adopted by Court could not vitiate proceedings ? Exhibits A-2 and A-16 which are certified copies of compromise decree are true and genuine documents and as per same, disputed property, allotted in favour of seller from whom Plaintiffs purchased suit property ? Factual findings of Trial Judge, proper and based on materials ? Appeals dismissed.

In another judgment in the case of State Bank of Hyderabad Vs. Town Municipal Council, . The relevant portion of this judgment reads as follows:

Code of Civil Procedure, 1908 (5 of 1908) [as Amended by Amendment Act 22 of 2002 w.e.f.1.7.2002], Order 6, Rule 17, Proviso to ? CPC (Amendment) Act, 2002, Section 16(2) ? Proviso to Order 6, Rule 17 of Code does not apply to a Suit filed in year 1998 in view of provisions of Section 16(2) of Amendment Act of 2002 ? High Court erred in relying on said Proviso and holding that Plaintiff was obligated to establish that in spite of due diligence it could not have raised matter before commencement of trial of Suit.

In the facts and circumstances of the case and arguments advanced by the learned Counsels and on perusing the impugned order and decretal order of the learned I Additional District Munsif, Tirunelveli passed in I.A. No. 1248 of 2009 in O.S. No. 152 of 2001 dated 25.02.2010, and on scrutiny of the joint submissions made by counsels of both the sides stating that the Defendants are in occupation of the suit property, this Court is of the considered opinion that the order and decretal order passed by the learned I Additional District Munsif, Tirunelveli in allowing the amendment petition is justified. Hence, the above civil revision petition is dismissed. The suit is filed in the year 2001. Therefore, this Court directs the learned I Additional District Munsif Court, Tirunelveli to dispose the case in O.S. No. 152 of 2001 within a period of three months from the date of receipt of this order, without being influenced by this Court''s discussions. Accordingly ordered.

Resultantly, the above civil revision petition is disposed of with the above direction. Consequently, the order and decretal order passed in I.A. No. 1248 of 2009 in O.S. No. 152 of 2001 on the file of the I Additional District Munsif Court, Tirunelveli, dated 25.02.2010 is confirmed. Connected M.P. is closed. There is no order as to costs.