Narayana Reddiar vs Alagammal

M. Karpagavinayagam, J.—Mr. Narayana Reddiar, defendant in the suit filed this revision before this Court, against the fair and decretal

order dated 27.8.96 passed in I.A. No. 1554 of 1996 in O.S. No. 121 of 1993 on the file of District Munsif, Aruppukottai. The respondent as

plaintiff instituted suit proceedings in O.S. No. 121 of 1993, in the above Court, contending that she is the owner of the suit site, that she got the

property by means of a gift deed executed by her father on 28.6.55, and that since the petitioner/defendant attempted to interfere with her

possession, she filed the suit for permanent injunction.

The suit was resisted by the petitioner herein, mainly contending that the description of suit property in the plaint was vague and not correctly

given, and that already the plaintiff''s brother instituted a suit, which was finally decided in A.S. No. 8 of 1989, on the file of Sub Court-in favour of

the defendant, and thereafter, the plaintiffs brother set up the plaintiff to file the present suit, and that therefore, the suit is barred by res judicata.

The suit was taken up for trial. Documents were marked. Witnesses were examined and evidence was adduced by both sides Finally the

arguments were heard on 10.6.96. Then the matter was posted for Judgment, after reserving the same, to 22.6.96.

In the meantime, on 17.6.96, the learned District Munsif, Aruppukottai, suo motu, reopened the case, since he was of the opinion that the suit

property has to be properly identified, and located with the help of Advocate/Commissioner, and that therefore, an opportunity has to be given to

the plaintiffs for taking steps for locating the suit property. This was adjourned to 19.6.96 to enable the plaintiff for taking steps to file the petition

for appointment of Commissioner. Accordingly, on 19.6.96, the plaintiff filed a petition in I.A. No. 1091 of 1996. On the same day, the

Commissioner was appointed by the order of Lower Court, directing him to inspect the suit property, and file a report along with sketch.

On 3.8.96, on intimation to both sides, the Commissioner inspected the suit property, and prepared a report by taking the help of the Taluk

Surveyor. Thereafter, on 19.8.96, the Commissioner filed a report before the Court. At this stage, the respondent/plaintiff filed another petition In

I.A. No. 1554 of 1996, on 20.8.96 requesting for the amendment of the description of the suit property, in consonance with the report filed by the

Advocate/Commissioner, before the Court.

On 26.8.96, the petitioner/defendant filed a counter to the said petition, contending that the amendment as sought for by the plaintiff would

seriously affect the interest of the defendant, as it would amount to shifting the suit property, thereby introducing a new cause of action. However,

the learned District Munsif, by order dated 27.8.96, allowed the petition by observing that the amendment would not introduce any new cause of

action. This order is challenged in this revision.

At the outset, I mention, as correctly pointed out by Mr. Vijayashankat, learned counsel for the petitioner, that the amendment, as allowed by

the learned District Munsif, in my view, would change the structure of the suit, and as such, the impugned order would certainly suffer grave

infirmity.

The reasons for the above conclusion, are as follows:-

(i) In the plain filed by the plaintiff ''Ramasamy Udayar compound wall"" is shown as eastern boundary,

In the written statement filed by the petitioner/defendant, he would specifically state that the boundaries of the suit properties are not correct. The

immediate eastern boundary is north-south Panchayat lane, and only beyond that, on the eastern side, the Ramasamy Udayar compound wall is

situate. It is also stated in the written statement, that the boundaries have not been given properly, and as such, the plaintiff is to prove the

boundaries correctly, by getting some Advocate/Commissioner appointed for inspection. However, no step had been taken to give the correct

details of boundaries to identify the exact suit property, by the plaintiff, by filing any additional statement, nor took any steps for appointment of

Commissioner, to give a report to the Court, after inspection.

(ii) Even in the examination of P.W.1, in her chief examination, while referring about the boundaries, she would state that While she was confronted

in the cross examination on this aspect of the evidence, she specifically said that there was no north-south road, on the eastern side of the suit

property. As a matter of fact, when a suggestion was made to this effect, the plaintiff denied such a suggestion

(iii) After the entire trial was over, the arguments were advanced on 10.6.96 by the respective side, with reference to this also, it was argued by the

defendant, that the suit property was not properly established. However, after hearing the argument it was posted to 22.6.96, for pronouncing the

Judgment. In the meantime, as indicated earlier, the learned District Munsif, on 17.6.96. suo Motu reopened the case, and at the instance of the

learned District Munsif, the Plaintiff filed a petition for appointment of Commissioner, and on being appointed, the Commissioner after inspection

filed a report on 19.8.96 and only thereafter the respondent/Plaintiff filed a petition for amendment of the description of suit property.

(iv) The reason given in the petition for amendment is that the Advocate/Commissioner''s report would show that the eastern boundary is ''north-

south road"". It is also mentioned in the petition in I.A. No. 1554 of 1996 filed on 21.8.96 that the plaintiff came to know about this only on perusal

of the Commissioner''s report, and that therefore, she requested the Court to amend the eastern boundary mentioned as Ramasamy Udayar

compound wall into

(v) It is pertinent to note at this stage, that in the cross-examination, the specific assertion made by the plaintiff is that there was no north-south road

in between the suit property and the compound wall. But now the plaintiff by way of amendment application wants to correct her version made in

the cross-examination, by adding a new boundary on the eastern side. This is not only a belated application, which would prejudice the interest of

the opponent party, but also amount to introducing a new cause of action, by shifting the suit properly to other side of the street.

This Court as well as the Apex Court, on various occasions held that this cannot be permissible under the similar circumstances. In Gobi Pillai

Vs. Dr. Swamy, this Court observed as follows:-

It will thus be seen that what should be taken into account is whether the amendment sought for would result in interests of justice being rendered.

when a party is fully aware of the nature of the plea raised and the factual aspect of the claim made in the plaint. Apart from the definite case

pleaded in the plaint of the plaintiff being in possession of the property, even in the affidavit filed in support of the present application, the plaintiff

has stated ""My definite case is that i am in exclusive possession of the suit property. The respondent/defendant disputes the same."" When the

plaintiff has been so categorical on the plea raised and has confined his relief only for injunction, after the evidence is recorded, he is now asking for

an alternative prayer to be introduced on the ground that ""if for any reason this Hon''ble Court comes to the conclusion that I am not in possession

of the suit properties. I am entitled to recover the suit property from the respondent/defendant."" Even in the proposed amendment, he claims that

he would be entitled to an alternative relief, it for any reason the Court has to come to the conclusion that he is not in exclusive possession.

Undoubtedly it is a new ease set up in a suit filed for injunction, wherein till evidence is closed, be had taken up the firm stand that he is in

possession of the property. The decision relied upon by the counsel for the petitioner have not gone to the extent of taking away the discretion in

the Court to decide whether in the interests of justice an amendment should be allowed, and held that it has to function at the whims and fancies of

the plaintiff Who would choose his own time to ask for amendment even though he had been hilly aware of what he should plead for. Having filed a

suit for injunction and rested his entire ease on the fact that he has been in possession of the property, should a Court allow such a plaintiff to

change his case at whatever time he may choose irrespective of the consequences it would have on the defendant and also in the Court concluding

the suit on the evidence already recorded? If the approach is to be made by Courts of what would be relevant it is only the case of the plaintiff, and

it should close its eyes on the ease of the plaintiff, but should only compensate the defendant by way of costs, and further the Court is to subject

itself to protraction of proceedings, then there could be no question of judicial discretion being exercised to advance the course of justice. ""Ends of

Justice"" or ""in the interests of justice""; if to be applied, the Court has to necessarily take into account the manner in which the plaint had been filed

and the time when the plaintiff seeks for amendment of the plaint. Merely because it has been held that an amendment can be sought for even in an

Appellant Court or even when the matter is heard in the Supreme Court as held in L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., it

would not mean that Courts are to encourage a recalcitrant and scheming plaintiff to ask for amendment of plaint, even though he had known the

truthful position at the time of filing the plaint and files the amendment petition after knowing the entirely of the ease of the defendant. The term

interests of justice'' will have to necessarily take within ''its'' fold the interests of the defendant also.

In Smt. Ganga Bai Vs. Vijay Kumar and Others, , the Apex Court held as follows:-

The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of

limitation notwithstanding. But for the exercise of such far reaching discretionary powers is governed by judicial considerations and wider the

discretion, greater ought to be the care and circumspection on the part of the Court.

The Supreme Court in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., observed thus:-

It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and

alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If

such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the

defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.

Learned counsel for the respondent would submit that P.W.1, though in cross-examination, in one place would state there was no ''north-south

lane'' on the eastern side of the suit property, she would in the later portion corrected herself. This argument does not appeal to me, because, if this

is accepted, there is no necessity for the respondent/plaintiff to file the amendment petition at all,

However, learned counsel for the respondent cited two authorities, to show that at any stage, the Court has got discretion to allow the

amendment application. (1) Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon, ; & (2) Ganesh Trading Co. Vs. Moji Ram,

There is no dispute regarding this position. But the question is whether the plaintiff could be allowed by the lower Court, to the prejudice of the

defendant, to alter the cause of action, and to introduce an entirely, new cause of action, through an amendment of her pleading. This question is

also answered in the Judgment referred to by learned counsel for the respondent, reported in Ganesh Trading Co. Vs. Moji Ram, , in the following

observations:-

it is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new

or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there,

the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour

due to lapse of time.

Therefore, in my view, as indicated earlier, the lower Court allowed the plaintiff to introduce a new cause of action, by ordering amendment

petition, detrimental to the interests of the defendant. In the result, the revision is allowed, setting aside the order of Court below. No costs. The

trial Court is directed to dispose of the main suit as expeditiously as possible. Consequently no further order is necessary in the CMP.