Mrs. Valliammal vs Periasamy Thevar

Srinivasan, J.—There is no justification for the lower Court to dismiss the application for amendment in this case. The plaintiff filed the suit

for declaration of title and injunction. The plaintiff''s claim was that he was in possession. The defendant contested the same. In I.A.No.298 of

1984 filed by the plaintiff for an interim injunction till the disposal of the suit the Court expressed the opinion that the plaintiff was not in possession

and dismissed the application. The plaintiff filed the application for amendment of the plaint in I.A.No.l3i of 1989 stating specifically that in the view

taken by the Court it has become necessary for him to pray for possession as ultimately if his title is upheld, he would be prejudiced if

consequential relief is not granted to him. This application was opposed by defendant and the Court below has taken the view that the plaintiff

having taken a definite stand in the original plaint is not entitled to amend the plaint.

The Court below has placed reliance on the judgment of Sathiadev, J., in Gobi Pillai Vs. Dr. Swamy, . The fact of the reported case are

different and the judgment of the learned Judge does not apply to this case at all. There, the amendment was sought only after the evidence in case

had concluded. Even then, the plaintiff had continued his assertion that he was in possession, but, he prayed for an alternative relief as a matter of

caution. In those circumstances, the Court held that he was not entitled to get an amendment as prayed for. That decision will not apply to the fact

of this case.

Learned Counsel for the respondent invited my attention to the Judgment of the Ajmer High Court in Kishorimal v. The Crown AIR 1949 Ajm

In that case the words ''read question in controversy'' occurring in Order 6, Rule 17, C.P.C. have been construed as the question which arises

for consideration at the time when the issues are framed on the basis of the pleadings then in existence. Even if that interpretation is accepted in this

case, one of the issues in the suit as originally framed was, what was the relief to be granted to the plaintiff."" The plaintiff had prayed for declaration

of his title. If the Court declares his title, necessarily the consequential relief which should be granted to the plaintiff has to be determined by the

Court. If he is not in possession then he would be entitled to a decree for possession as the consequential relief. Therefore, it cannot be contended

that the present amendment is not one necessary for the purpose of determination of the real question in controversy.

Hence I hold that the amendment, which does not in any way alter the nature or character of the suit, ought to have been allowed by the Court

below. The order of the Court below is wholly unsustainable and it is hereby set aside. The revision petition is allowed and I.A. No. 131 of 1989

stands allowed. There will be no order as to costs.