P. Muthu vs Pari, Nerome Arockiaraj and Sowkat Ali Khan

M.M. Sundresh, J.—The revision has been filed by the petitioner herein who is the defendant in the suit. The suit is filed in O.S. No. 1001 of 1990 on the file of Sub Court, Tiruchirapalli seeking the relief of permanent injunction. The said suit has been filed based upon title namely the sale deeds in Ex.A1, A2 and A4. The written statement has also have been filed by the defendant/petitioner. The petitioner has filed the written statement denying the title and also alleging that the description given in the suit property is imaginary. Thereafter, the suit is taken up for trial and the matter is posted for judgment. At that point of time an application was filed by the respondents seeking amendment of the plaint in so far as the description of the property is concerned. The said application was allowed by the Court below and challenging the same, the petitioner has preferred this revision.

The learned Counsel for the petitioner submitted that the suit having been filed in the year 1990 and the written statement have been filed subsequently thereafter pointing out the discrepancy in the description of the property in the plaint, the present application has been filed belately that too after the judgment was reserved. According to the learned Counsel, even on a perusal of the evidence there is no whisper about the description of the suit properties. It is further submitted by the learned Counsel that the Court below has wrongly allowed the application and the petitioner would be greatly prejudiced if such an application is allowed. The learned Counsel for the petitioner is also relied upon the judgments reported in 2005 4 MLJ 278(Jeya v. Sundaram Iyer), S. Ahamed Meeran and Others Vs. S. Kumaraswamy Thevar, , Rajkumar Gurawara (Dead) thr. L.Rs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Another, and Patasibai and Others Vs. Ratanlal, to contend that after the commencement of the trial an application for amendment cannot be permitted.

The learned Counsel for the respondents per contra submitted that what is sought to be amended is only a portion of the suit property. The learned has specifically has argued that in the original plaint, the description of the suit property has been shown as follows:

In Tiruchi District, Tiruchi town in Varaganeri Village, Old Ward No. 8, Block No. 25T.S.2339/2 New Ward No. I, Block No. 41, New T.S. No. 9/15, in this the thope bounded on the east by Uyyakondan river, on the west by N.Mohammed Miyan Rowther''s nanja land, on the north by Subbarayan''s Thottam and Vaikal running through Ondakulam nanja land, on the sought by Mohammed Miyan Rowther Thottam, within these four boundaries East West 155 ft. and north to south 212ft. out of this half portion on the north and out of this on the south of the remaining area owned by Maruthai Muthiriar on the south east - west 155 ft. and north sought 106 ft. with mango and coconut other tress situated therein.

According the learned Counsel what is sought to be amended is as follows:

Out of this half portion North and out of this on the south of the remaining area owned by Maruthai Muthiriyar on the south East west

The above "..." portion may be deleted and the following may be substituted:

Out of this the half portion in the north enjoyed by Maruthai Muthiriyar and the remaining southern half portion is the suit property measuring east west.

Hence the learned Counsel submitted that the proposed amendment is nothing but a small change in the description of the property. The learned Counsel further submitted that the said mistake has crept in because of the fact that the sale certificate is in Tamil and description of the property in the plaint is in English resulting in the confusion regarding the directions. The learned Counsel further submitted that by mistake instead south it has been mentioned as north, the said mistake was due to translation. The learned Counsel further submitted that in view of the change in counsel the mistake was made in the description of the suit property, since the original plaint was drafted by some other counsel. The learned Counsel also submitted that the proposed amendment will not result in any change in the cause of action or seek to introduce any new case. The learned Counsel further submitted that the parties have understood each others case and in view of the specific averments made in the written statement, the revision deserves to be dismissed. The learned Counsel submitted that the suit having been laid based upon Ex.A1, A2 and A4 and the question to be decided is to whether the plaintiff is entitled to get the relief based upon title.

I have heard the arguments of the learned Counsel for the petitioner as well as the respondents. As rightly contended by the learned Counsel for the respondents, the amendment sought to be made is only with reference to the description of the suit property alone. The respondents in their affidavit have clearly given the reason for the proposed amendment and also they have explained the delay in filing the application at a belated stage. No doubt as contended by the learned Counsel for the petitioner admittedly there is a huge delay in filing the application but considering the fact that the amendment does not change the cause of action or the pleadings of the respective parties, this Court is of the opinion that the Trial Court has rightly allowed the application. The suit having been filed for injunction which is based upon the title, the order allowing the amendment in the opinion of the Court cannot be assailed even assuming that there is a delay after the application for amendment is allowed the same will not prevent the respondents from filing another suit. Therefore in order to solve the dispute between the parties, this Court is of the opinion that allowing of the amendment is just and proper.

Further considering the facts, this Court is of the opinion that the proposed amendment does not introduce any new case particularly in the light of the contention raised in the written statement regarding the mistakes committed in the description of the suit properties as mentioned in the schedule of the plaint. The defendant has also denied the title of the respondents. In so far as the judgments relied upon by the learned Counsel for the petitioner is concerned, this Court is of the opinion that it is well settled principle of law that the Court has discretion in allowing an application seeking amendment if the Court is of the opinion that such an application is necessary in the interest of justice and for deciding the dispute between the parties. In such an event when the Court has allowed such an application, this Court sitting into Article 227 shall not interfere with the said reasoning of the Court below. In the judgment relied upon by the petitioner, the Hon''ble High Court as well as Hon''ble Supreme Court have held that in normal circumstances an amendment cannot be allowed at a belated stage that too after the commencement of the Trial. The proposition laid down in the said judgments in the opinion of this Court cannot be applied to the present case.

In the present case as held earlier the parties have understood each other''s case very well. The amendment sought is only regarding the description of the suit property. The petitioner will be no way prejudiced by the proposed amendment. Therefore this Court is of the opinion that the discretion is rightly exercised. In the judgment reported in 2008 3 MLJ 287 in Ushadevi v. Rijwan and Ors., it has been held that wrong description of property can be amended even if there is a lack of due diligence. The Hon''ble Supreme Court is pleased to hold that the proposed amendment relating to correction of description of the suit property in the plaint will have to be allowed. In the said case, the Hon''ble Supreme Court has allowed the amendment even though the Court below have rejected the same. The Hon''ble Supreme Court has held that even though there was no due diligence on the part of the plaintiff as much as wrong description of the suit property was pointedly brought out by the defendants not only in the written statement, the prayer of amendment deserves to be allowed. This Court is of the opinion that the said judgment of the Hon''ble Supreme Court is applicable to the present case on hand. Further in the said judgment, the Hon''ble Supreme Court is pleased to hold that when the proposed amendment was necessary for the purpose of proving the real dispute between the parties then the same will have to be allowed. The Hon''ble Supreme Court has held that in such an event the merits of the case shall not be gone into.

Similarly in the judgment reported in 2008 4 MLJ 258 (Puran Ram v. Bhaguram and Anr.) it has been held that unless the order of the Court below was either without jurisdiction or perverse or arbitrary, the Hon''ble High Court exercising under Article 227 shall not interfere in the judicial discretion exercised by the Trial Court. In the said case also the Hon''ble Supreme court had dealt with the application filed under Order 6 Rule 17.

Considering the above judgments, this Court is of the opinion that the revision filed by the petitioner deserves to be dismissed. Accordingly the same is dismissed.

However taking into consideration of the fact that the suit having been filed in the year 1990, the Trial Court is directed to dispose of the suit within a period of two months from the date of receipt of copy of this order. The petitioner is given liberty to file additional written statement if any within a period of three weeks from the date of receipt of copy of this order. No costs. Consequently, the connected C.M.P. is closed.