V. Besly vs K. Rajammal

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the defendant against the order dated 14.10.2008 in IA. No. 112/2008 in OS. No. 366/2006 passed by the learned Additional District Munsif (In-charge) Padmanabhapuram, allowing the amendment of pleadings sought for by the respondent/Plaintiff.

The brief facts are as follows:

The respondent/plaintiff filed the above said suit for bare injunction, contending that the suit property belonged to her father-in-law, which was gifted to her son Selvaraj, nominating the respondent as his guardian by a Gift Deed bearing Document No. 1918/1972 registered with the Sub Registrar Office, Thiruvettar. According to the respondent, her husband deserted her and so she got married to one Kochu in the year 1972 and got three children through him. The respondent was in possession and enjoyment of the suit property and mutation had been effected in the revenue records in her name. Her son Selvaraj died in the year 1992. According to the respondent, the petitioner/defendant had no manner of right and the petitioner taking advantage of her distant proximity to the suit property attempted to interfere with her peaceful possession and enjoyment on 13.11.2006, which was thwarted successfully. Since the petitioner again attempted to interfere with her possession, the respondent has filed the above said suit for bare injunction restraining the defendant from interfering with her peaceful and enjoyment of the suit property.

Pending the suit, the respondent filed a petition for amendment on the ground that through one Balakrishnan, a friend of her son Selvaraj, with whom he stayed for few years, she came to know that his son had left a Will dated 15.5.1992 bequeathing the suit property in her favour. So she claimed title to the suit property by way of the said Will and sought for amendment for addition of few facts as to how she derived title and also to amend the prayer for inclusion of the relief of declaration of title.

The amendment was resisted by the petitioner, contending that the proposed amendment will not only change the cause of action, but also change the character and nature of the suit. The court below allowed the amendment by the impugned order on the ground that in order to avoid further litigation and to subserve the ultimate cause of justice, the amendment is necessary. Aggrieved against the said order, this Civil Revision Petition has been filed by the defendant.

The learned Counsel for the petitioner reiterated the contentions, which were put forth before the court below that the amendment would change the cause of action and the nature of the suit and character and therefore, the same ought not to have been allowed by the court below. The learned Counsel relied on the decision of the High Court of Guahati rendered in the case of Shri Yumnam Ibobi Singh and Others Vs. Shri Yumnam Yaima Singh and Others, in support of his contention that the proposed amendment setting up a new case would cause prejudice to the petitioner and hence, it should not be allowed.

In the instant case, the relief of declaration of her title is claimed by the respondent based on the Will said to have been executed by her son Selvaraj and she has also explained the delay in filing the amendment, that she had come to know about the execution of the Will only in the year 2007 through one Balakrishnan with whom her son Selvaraj resided for few years. Originally she claimed title by virtue of the gift deed, executed by her father-in-law in favour of her son and after her son''s death, she claimed absolute right over the suit property. By way of amendment she claims title through the Will executed by her son. In the said factual matrix, though the relief claimed by the respondent is one for declaration, but on the factual basis in regard to the derivative of title having already been laid down in the plaint, although controverted by the petitioner in his written statement, the grant of permission to amend the plaint would not amount to introduction of a different relief from that sought in the plaint. So it cannot be said that it changes either the cause of action or the character of the suit.

The learned Counsel for the respondent would support the impugned order of the court below and submit that the amendment was necessary for determining the real question in controversy between the parties and the court below, after perusing the materials available placed before it, had come to the proper conclusion and allowed the amendment. He would rely on the decision of this Court rendered in the case of S. Chellathurai v. Chidambaram Chettiar and Anr. 2007 5 MLJ 1294, wherein this Court has held thus:

The Honourable Supreme Court has made it very clear that the object of the rule is that the Courts should try the merits of the case and should consequently allow all amendments that may by necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. Applying the legal dictum, when the Court perused the materials available on record, the Court does not find any reason to come to the conclusion that allowing the amendment in this case will cause any prejudice to the respondents.

The Full Bench of the Principal Bench of this Court in the case of Dr. S.H. Sithik Basha Vs. Fazal Ahmed, has held that amendment of pleadings can be allowed at any stage provided that it is necessary for the purpose of deciding controversies between parties and even such amendment is barred by time only factors to be taken into consideration are (a) As to whether the amendment should be allowed or not, (b) when it does not affect cause of action, (c) it does not introduce a new cause of action, (d) it would not cause serious prejudice to opposite party and (e) when such amendment is required in interest of justice.

In the decision of the Honourable Supreme Court rendered in the case of Baldev Singh and Others Etc. Vs. Manohar Singh and Another Etc., , the Honourable Supreme Court while discussing regarding the power and discretion of the court in allowing the amendment, has observed that a wide power and unfettered discretion has been conferred on the court to allow amendment of pleadings in such manner and on such terms as it appears to the court to be just and proper and reiterated that the court should be extremely liberal in granting the prayer for amendment of pleadings, unless serious injustice or irreparable loss is caused to the other side.

Admittedly, the amendment was sought for by the respondent herein in this case during pre trial stage and the petitioner has got an opportunity to put forth his defence by filing an additional written statement if he is so advised. No injustice or prejudice is likely to be caused to the petitioner in allowing the amendment.

On going through the pleadings and also the submissions made in the application for amendment of the plaint, I am unable to find any inconsistent plea taken by the respondent, excepting the plea that she is entitled to the suit property by way of a Will left by her son. As noted herein before, as the parties are yet to produce their evidence both oral and documentary, it is not justifiable to reject the amendment sought for by the respondent.

In view of the reasons aforesaid, I do not find any illegality or irregularity in the impugned order passed by the court below and hence, this Civil Revision Petition is liable to be dismissed and accordingly, it is dismissed. No costs. Consequently, the connected MP is closed.