Ramachandran vs Veeramuthu

R. Mala, J.—Civil Revision Petition is filed against the fair and decreetal order dated 22.04.2013 made in I.A. No. 157 of 2013 in O.S. No. 78 of 2011 on the file of the Additional Sub-Court, Virudhachalam.

The respondent herein as a plaintiff filed a suit for declaration of title and injunction. The defendant filed a written statement and contested the same. During pendency of the suit, the plaintiff has filed an amendment petition in I.A. No. 157 of 2013 under Order VI Rule 17 of C.P.C. stating that the defendant has encroached upon second item of the suit property and made construction, hence, he wants to amend the prayer for mandatory injunction. The trial Court, after hearing both sides, allowed the application, against which, the present revision petition is preferred by the revision petitioner/defendant.

Learned counsel for the revision petitioner submitted that the defendant has not made any construction after filing the suit and before filing the suit only, he has made the construction and that factum has not been considered by the trial Court. However, he fairly conceded that trial is yet to be commenced. Therefore, he prayed for allowing the revision petition.

Learned counsel for the respondent/plaintiff submitted that the trial is yet to be commenced. As per Order VI Rule 17 of C.P.C., the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purpose of determining the real question in controversy between the parties. So the trial Court allowed the application and the order passed by the trial Court does not warrant any interference. Hence, he prayed for dismissal of the revision petition.

Considered the rival submissions made on both sides and perused the typed set of papers.

The respondent herein as a plaintiff filed a suit for declaration of title and injunction. The defendant/revision petitioner filed the written statement stating that the second item of the property is in his possession and the plaintiff has no right over the same.

According to the plaintiff, Advocate Commissioner has been appointed and inspected the property and in his report, it was specifically mentioned that in the second item of the suit property, a wall has been constructed and no roof has been put up and hence, he wants to amend the prayer for mandatory injunction, for which, he filed the amendment application and that has been rightly considered by the trial Court.

As per the decision of the Apex Court reported in Usha Balashaheb Swami and Others Vs. Kiran Appaso Swami and Others, , it was held as follows:

As we have already noted herein earlier that in allowing the amendment of the written statement a liberal approach is a general view when admittedly in the event of allowing the amendment the other party can be compensated in money. Technicality of law should not be permitted to hamper the Courts in the administration of justice between the parties. In the case of L.J. Leach and Company Ltd. Vs. Jardine Skinner and Co., , this Court observed "that the Courts are more generous in allowing amendment of the written statement as the question of prejudice is less likely to operate in that event". In that case this Court also held "that the defendant has right to take alternative plea in defence which, however, is subject to an exception that by the proposed amendment the other side should not be subjected to serious injustice."

Considering the aforestated circumstances along with the above decision, a construction has been made in the second item of the suit property, but the suit has been filed by the plaintiff only for declaration and injunction. In such circumstances, the relief of mandatory injunction is necessary and that was rightly considered by the trial Court. Furthermore, amendment petition has been filed much before commencement of trial, so the amendment is not barred by limitation. If the amendment is allowed, there will not be any change in cause of action and nature of the suit. So the trial Court has passed the well reasoning order and it does not warrant any interference.

In the result, the Civil Revision Petition is dismissed, confirming the fair and decreetal order dated 22.04.2013 made in I.A. No. 157 of 2013 in O.S. No. 78 of 2011 on the file of the Additional Sub-Court, Virudhachalam. However, at request of the learned counsel for the revision petitioner, the trial Court is directed to dispose of the suit within three months from the date of receipt of a copy of this order, after giving opportunity to the defendant to file his additional written statement. No costs. Consequently, connected Miscellaneous Petition is closed.