Rajeshwari and Padmavathi vs Santhi

Honourable Mr. Justice G. Rajasuria

This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 10.08.2012 passed in I.A. No. 621 of 2012 in O.S.

No. 759 of 2009 by the learned Principal District Munsif Court, Nagercoil. Heard both sides.

Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of the Civil Revision Petition would run thus:

(i) The revision petitioners herein filed a suit in O.S. No. 759 of 2009, seeking the following reliefs:

A) A decree declaring the plaintiff''s title over the plaint schedule property and for recovery of possession of the plaint schedule property from the

defendant.

B) Decree granting an order of Mandatory injunction directing the defendant to remove the hollow brick wall constructed by the defendant in the

plaintiff''s property and if the defendant fails to remove that suitable order be passed to remove the illegal construction wall through the

commissioner appointed by this Honourable Court.

C) Decree restraining the defendants from constructing any permanent construction in the plaint schedule property till the disposal of the suit.

D) Such other reliefs which the Court deems fit and proper in the circumstances of the case.

E) Decree for the cost of the suit from the defendants.

(extracted as such)

(ii) The trial commenced in the matter. Whereupon I.A. No. 880 of 2011 was filed seeking an appointment of Advocate Commissioner.

Accordingly, it was ordered. Thereupon, the Advocate Commissioner visited the property and submitted his report with sketch and he noted that

the area to be recovered by the plaintiff was more than what was mentioned in the plaint. Thereupon, I.A. No. 621 of 2012 was filed under Order

VI Rule 17 and Section 151 of the Code of Civil Procedure, seeking the following proposed amendments:

(1) In para 2 of the plaint after line No. 6 the averments"" and taking advantage of the absence of the Plaintiff encroached plaintiffs property to an

extent of 3/4 cents on the southern side of plaintiff''s property and constructed cement hollow block wall to a height of 5 feet height. The

encroached 1.40 cents by the defendant is the plaint A-schedule property. The encroached area is clearly demarcated in the Commission plan

produced by the Commissioner along with his report. The encroached area is marked as ABCDE in the Commission plan"".

2) In the A-Relief column the ""plaint schedule property"" may be amended as"" Plaint A-Schedule property

3) In the schedule property the area stated as 3/4 cents may be amended as 1.40 cents and the schedule of property is amended as A-Schedule

property.

4) After A-Schedule property the B-schedule property is to be added as follows:

B-Schedule of Property:

(extracted as such)

(iii) The counter affidavit was filed. The lower Court dismissed the application mainly on the ground that the trial commenced.

Being aggrieved by and dissatisfied with the same, the present Civil Revision Petition has been filed on various grounds.

The learned Counsel for the revision petitioner would point up and show up, highlight and spotlight the facts by his submissions, the warp and

woof of the same, would run thus:

The very appointment of Advocate Commissioner itself was pending trial. As such, after commencement of trial, there was no laches on the part of

the plaintiffs. On coming to know of certain defects, the revision petitioners/plaintiffs filed an amendment petition in I.A. No. 621 of 2012 to

include the area which was omitted to be added in the plaint. It was not filed for changing the nature of the relief, but it is only filed for the purpose

of enlarging the area of the suit property based on the same cause of action.

Pulverising the arguments as put forth and set forth on the side of the revision petitioners/plaintiffs, the learned Counsel for the

respondent/defendant would narrate and detail the facts, which could pithily and precisely be set out thus:

The trial has already commenced and in such a case, as per the well established proposition of law, the question of amending the plaint would not

arise at all. The lower Court, taking into consideration the pros and cons of the matter, decided the I.A. by dismissing the same, which warrants no

interference in this Civil Revision Petition.

He would also add one more point that the said application was barred by limitation, because for filing any suit seeking mandatory injunction,

three years'' period is contemplated. Whereas, the said application was filed long after the expiry of three years.

However, the learned Counsel for the revision petitioners/plaintiffs would submit that the suit is not only for mandatory injunction, but also for

recovery of possession for which twelve years'' limitation period is contemplated.

Be that as it may, since it could be decided in the suit as to whether the limitation is applicable in this case or not, reserving the right of defendant

to file the additional written statement raising all legal points, the I.A., for amendment could be allowed. I would cite a few precedents in support of

the aforesaid view.

I would like to refer to the following decisions of the Honourable Apex Court:

(i) Vidyabai and others v. Padmalatha and another reported in 2008 (4) TLNJ 588 (Civil).

(ii) Van Vibhag K.G.N. Sahkari Sansthan v. Ramesh Chander and others reported in 2011 (1) MWN (Civil) 232.

A mere running of the eye over the aforesaid precedents of the Honourable Apex Court unambiguously and unequivocally would convey and

portray the legal position that at the time of entertaining the application under Order VI Rule 17 of the Code of Civil Procedure, the lower Court is

enjoined to look into the fact as to whether the proposed amendment is barred by limitation and if it is so, then such application has to be

dismissed.

The learned Counsel for the respondent/plaintiff placing reliance on the decision of this Court in J.R. Arun Kumar and Others Vs. K. Boopalan

in C.R.P.(PD) Nos. 89 and 90 of 2010 decided on 03.10.2012, would submit that in the decided case by the learned Single Judge of this Court, it

has been held that after the commencement of the trial, the question of seeking for declaration, in a suit for injunction would not arise, and that too,

when in the written statement itself, such plea was raised.

I would like to distinguish that judgment from the facts involved in this case. In the factual matrix of this case, the extent alone is involved and

the plaintiffs came to know of the actual extent of encroachment, after the Advocate Commissioner filed his report. There is no willful negligence on

the part of the plaintiffs in filing the said I.A., seeking amendment of the plaint. No man having head over shoulder would deliberately restrict the

extent to which he is entitled; which factor would make me to believe the version of the plaintiffs. They are really unaware of the actual extent of the

property and wherefore, earlier they prayed for the lesser extent. Wherefore, such amendment, in view of the dictum found enunciated in the

decision of the Honourable Apex Court, is permissible. However, the lower Court wrongly thought as though there cannot be any amendment after

commencement of the trial in all cases. Accordingly, this Civil Revision Petition is allowed and the order of the lower Court is set aside, giving

liberty to the respondent/defendant to file additional written statement on the plaint being amended by the revision petitioners/plaintiff.

Consequently, the connected Miscellaneous Petition is closed. No costs.