Mariammal vs Subramanian

V.M. Velumani, J.—This Civil Revision Petition has been filed to set aside the order, dated 03.06.2011 made in I.A.No.281 of 2011 in O.S.No.50 of 2010, on the file of District Munsif Court, Kovilpatti.

The petitioners are the defendants, whereas the respondents are the plaintiffs in the suit in O.S.No.50 of 2010 on the file of District Munsif Court, Kovilpatti.

The respondents filed the suit for declaration and injunction.

According to the respondents, the petitioners are trying to interfere with their peaceful possession of the suit property from 26.02.2010. Therefore, they have sought for injunction.

The petitioners, in the written statement, denied the title of the respondents and claimed that they are the owners of the property and they and their ancestors are in possession and enjoyment of the property from the year 1940 onwards.

In view of said denial, the respondents filed I.A.No.281 of 2011 for amendment of the plaint to include the additional prayer for recovery of the suit property, in the event of Court holds that the petitioners are in possession of the suit property. The petitioners resisted the said application on the ground that the respondents were aware of the fact that only the petitioners are in possession and enjoyment of the suit property. The amendment sought for by the respondents is not bona fide and the application has been filed with a view to drag on the proceedings.

The learned Judge after considering the materials on record, allowed the said application for amendment, on 03.06.2011 on the ground that by the amendment, the nature of the suit and the cause of action will not be changed. The learned Judge relied on the Judgment reported in Church of South India Trust Association, Tiruchirapalli-Thanjavur Diocesan Council and Rev. Chinnaparaj, President, Dharapuram Diocese Vs. Kovil Pillai and Others, and held that to give finality in the issue in question, the amendment for alternate prayer can be allowed.

Heard Mr.B.Rajesh Saravanan, learned counsel appearing for the revision petitioners and Mr.S.Ponsenthikumaran, learned counsel appearing for the respondents.

9.Learned counsel for the petitioners relied on the following Judgments:

(i) Minor Balakumaran Vs. Gunasekaran [2012 (5) CTC 37;

(ii) Sanjeevi Ammal and 3 others Vs. Narasimha Naicker and another, ;

(iii) Abdul Rehman and Another Vs. Mohd. Ruldu and Others, ; and

(iv) Muthu and Gopal Vs. Padma, .

All these Judgments will not advance the case of the respondents, as the facts in those cases are different from the facts in the present case. In the Judgment reported in 2000 (III) CTC 389 [Sanjeevi Ammal and 3 Others Vs. Narasimha Naicker and Another], the amendment for alternate prayer of recovery was ordered on the ground that in the injunction application, it was held that the plaintiff did not prove the possession of the suit property. In the present case on hand, the respondents are not admitting the possession of the petitioners. On the other hand, their specific case in the plaint is that the petitioners are trying to interfere with their peaceful possession and enjoyment of the suit property from 26.02.2010. It is not the case of the respondents in the application filed for amendment that the petitioners are trespassed into the suit property subsequent to filing of the suit. The application for amendment of alternate prayer for recovery of possession on the ground, if the Court comes to the conclusion that the petitioners are in possession, is not maintainable. The learned District Munsif, Kovilpatti, failed to consider this aspect. Therefore, the order of the learned District Munsif, Kovilpatti, is liable to be set aside. Accordingly, the order, dated 03.06.2011 made in I.A.No.281 of 2011 in O.S.No.50 of 2010, is set aside.

In the result, this civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.