Periasamy vs Nainamalai and Gopal

V. Periya Karuppiah, J.—This revision has been filed by the petitioner, who was appellant before the lower appellate Court, against the

order passed by the lower Court appellate Court in refusing to permit the petitioner to amend the plaint in the appeal stage.

The brief facts of the case for the purpose of deciding this revision petition are as follows:- The revision petitioner, as plaintiff, filed the suit in

O.S. No. 235 of 2001 seeking for permanent injunction restraining the respondents/defendants and their men from in any way trespassing and

interfering with the plaintiff''s peaceful possession and enjoyment of the suit property. The said suit was dismissed by the trial Court, against which,

the revision petitioner/plaintiff has filed an appeal in A.S. No. 7 of 2006 before the first appellate Court. While the appeal is pending, the petitioner

has filed I.A. No. 4 of 2007 in the appeal seeking for amendment of the survey number of the suit property as it was found to be a wrong survey

number. The lower first appellate Court has, after hearing both sides, dismissed the said I.A. No. 4 of 2007, which necessitated the petitioner to

file this revision before this Court.

Heard Mr. T. Murugamanickam the learned Counsel for the petitioner and Mr. M.L. Ramesh the learned Counsel for the respondent.

4.The case of the petitioner, as plaintiff in O.S. No. 235 of 2001 seeking for permanent injunction against the respondents/defendants, was

dismissed by the trial Court, against which he had preferred the appeal before the lower appellate Court in A.S. No. 7 of 2006 and it is pending.

The petitioner had inadvertently and due to the mistake committed by the typist had mentioned the survey number of the property as 536/33

instead of Survey No. 536/30. The said mistake could have been understood by the petitioner only at the time of cross-examination and it was

confirmed, when he obtained encumbrance certificate from the Sub-Registrar, Attur on 27.09.2005 and therefore, the survey number which was

mistakenly mentioned in the schedule of property has to be amended suitably. It is also the case of the petitioner that the petitioner''s father had

purchased the said property in the year 1932 without referring to any survey number and his father was in possession of the said property and after

his life time the petitioner continued the possession and enjoyment of the suit property and therefore, there is no question of mistaken identity with

regard to the said property. It is also mentioned that the boundaries of the suit property and the door number were correctly mentioned in the

schedule of properties and therefore, mere amendment of the correct survey number will not in any way change the description of the entire

property. On the other hand it would perfectly mention the suit property. Therefore, the learned Counsel for the petitioner would submit in his

argument that the amendment ought to have been allowed by the lower appellate Court even though it was filed in the appeal stage.

The learned Counsel for the petitioner would also insist that by virtue of the amendment of the survey number, it will not bring any new property

to the description in the suit property and therefore, the petitioner ought to have been given an opportunity by the lower appellate Court to amend

the plaint. He would also submit that it will not prejudice the right of the respondents in any way as it would not warrant any additional written

statement from the hands of the respondents. He would also submit that the boundary descriptions in respect of the properties will prevail over the

survey number and the measurement, when they are in question. Therefore, when the boundaries of the said properties and the door number have

not been changed, the entire description of the property will not be altered due to the substitution of correct survey number sought for by the

petitioner. Therefore, he would submit that the dismissal order passed by the lower appellate Court may be interfered and set aside and the

petitioner may be permitted to amend the plaint as prayed for.

The learned Counsel for the respondents would submit in his argument that the lower Court had come to a correct conclusion that the suit

property was not in possession of the petitioner and therefore, the lower Court had dismissed the suit. He would further submit that even as per the

submission of the petitioner that he was made known in the cross-examination by the respondents'' counsel that the survey number mentioned by

the petitioner as 536/33 was not correct and he ought to have filed the application even before the lower Court and the lower Court could have

considered the case of both sides. He would also submit that the petitioner had not given any valid explanation for not taking steps before the

lower Court. He would further submit that the amendment, if ordered, will change the entire case of the plaintiff and it would cause serious

prejudice to the respondents. He would also submit that the petitioner has not mentioned any valid reason for filing such amendment application at

the appellate state and the attempt taken by the petitioner in the appeal stage is nothing but filling up the lacuna in the case of the petitioner, found

by the lower Court. Therefore, he would submit that the order passed by the lower appellate Court is sound and sustainable and interference need

not be made and the order of the lower appellate Court may be confirmed.

I have given anxious consideration to the arguments advanced on either side. The petitioner was the plaintiff before the lower Court, who had

filed the suit for permanent injunction in respect of the suit property against the respondents. The claim of the plaintiff/petitioner herein before the

lower Court was that the suit property was purchased by his father in the year 1932 and in the sale deed survey number was not mentioned and

the mentioning of the wrong survey number in the plaint was a mistake done by the typist at the time of preparing the plaint and it could be noticed

only at the time of cross-examination done by the respondents'' counsel before the trial Court. However, he did not file any amendment application

immediately before the trial Court. He is said to have verified and confirmed that the survey number was wrongly mentioned in the plaint as 536/33

instead of 536/30, when he had obtained encumbrance certificate before the Sub-Registrar Office, Athur. He had categorically mentioned in his

affidavit about the confirmation obtained by him from the said Officer. The claim of the petitioner is for the change of survey number alone. He has

not attempted to change the boundaries and the door number. Admittedly the property is a house property. For a house property door number is

important. The suit property has been described as in grama natham. The said property was said to have been purchased by the father of the

plaintiff in the year 1932 and in the said sale there was no reference as to the survey number. The property description as mentioned in the suit

schedule would depict the door number and four boundaries in the survey number along with other particulars. Even if survey number is not

mentioned as it was happened in the sale deed obtained by the father of the plaintiff, there will not be any confusion regarding the identity of the suit

property. When survey number is available for a particular property description with all the four boundaries and door number, it could be taken as

an additional information. But when the survey number has been wrongly mentioned, there could be a confusion in the minds of the Court as to the

genuineness of the claim of the petitioner/plaintiff. However, it would not take away the identity of the property. It is a well settled dictum that the

boundaries will prevail over the measurement and the survey number. Therefore, the wrong mentioning of the measurement or survey number will

not matter and they will not prevail over the four boundaries. It can be seen from the judgment reported in Subhaga and Others Vs. Shobha and

Others,

, which would run as follows:

A property can be identified either by boundary or by any other specific description. Here the attempt had been to identify the suit property with

reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any

discrepancy, normally, the boundaries should prevail.

Therefore, even without the correction of the correct survey number, the petitioner can present his case. However, he found out the correct survey

number to the suit property. Since the amendment sought for by the petitioner in respect of the survey number and to furnish correct survey

number, it will enable the Court to come to a correct conclusion and at the same time, it will not be prejudicial against the right and interest of the

respondents. Therefore, the lower appellate Court ought to have permitted the petitioner to amend the said mistake caused in mentioning the

correct survey number of the property. So, for these type of mistakes, which are not prejudicial to the other side, the amendment could have been

ordered by the Courts even at the appellate stage. The Appellate Court need not concern about the requirement of any further evidence in the

event of allowing the amendment since the present amendment does not cause any further evidence except an opportunity to be given to the

respondents to file additional written statement, if any, even before the appellate Court. This would certainly avoid multiplicity of proceedings and

the ultimate justice will be rendered to both parties. Therefore, I have no hesitation to interfere with the order passed by the lower appellate Court

in refusing to grant permission to amend the plaint as prayed for by the petitioner.

Accordingly, the order passed by the lower appellate Court is set aside and the petition is allowed, thereby the petitioner is given permission to

amend the survey number as mentioned by him in the petition. The lower appellate Court is directed to permit the petitioner to carry out the

amendment within the time allowed by law after the receipt of the order and after posting the case for amendment and thereafter, to give an

opportunity to the respondents to file additional written statement, if any, and to proceed with the case in accordance with law.

Connected Miscellaneous Petition is closed. No costs.