V. Gurusamy vs Vedagiri

S. Ashok Kumar, J.—Aggrieved by the order dated 21.9.2004 of the learned IV Additional Judge, City Civil Court, Chennai in C.M.P.

SR. No. 23508 of 2004 in A.S. No. 10 of 2004, this Civil Revision Petition has been filed.

Brief facts of the case are as follows:

The petitioner is the plaintiff who filed the suit for bare injunction. After trial, the suit was dismissed. The petitioner preferred an appeal in A.S. No.

10 of 2004. During the pendency of the appeal, the petitioner filed a petition in C.M.P.SR. No. 23508 of 2004 for amendment of the plaint by

including the prayer for declaration. The said C.M.P.SR. was dismissed. Aggrieved by the same, this Civil Revision Petition has been filed.

learned Counsel appearing for the revision petitioner would contend that after the dismissal of the suit on 24.2.2003, the respondent has

demolished the existing wall and re-constructed a wall with 4-1/2"". Therefore, during the appeal stage, to bring it to the knowledge of the Court,

the plaintiff wants to amend the plaint so that he can also get a declaration apart from mandatory injunction. learned Counsel for the petitioner

pressed into service a judgment of the Madurai Bench of this Court reported in 2005 (2) TLNJ 1 (Rethinam alias Anna Samuthiram Ammal and

others v. Syed Abdul Rahim), wherein, P.K.Misra,J has held as follows:

Section 16 of the CPC (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision u/s 16, so far as relevant for the

present purpose, is as follows:

Repeal and Savings...

(1) ...

(2) ...

(a)...

(b) the provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section

16 of the CPC (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement

of Section 16 of the CPC (Amendment) Act, 1999 and Section 7 of this Act.;

(c)...

The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the CPC (Amendment)

Act, 1999 and which had been inserted by Section 7 of the CPC (Amendment) Act, 2002 shall not apply to in respect of any pleadings filed

before the commencement of Section 16 of the CPC (Amendment) Act 1999 and Section 7 of the CPC (Amendment) Act 2002. As already

indicated, the CPC (Amendment) Act 1999 and the CPC (Amendment) Act 2002 came into force with effect from 01.07.2002. From the bare

reading of the provisions contained in Section 16(2)(b) of the CPC (Amendment) Act 2002, it is clear that such amended provision as contained in

proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously

include the plaint and written statement. Therefore, in respect of the plaint or written statement filed before 01.07.2002, the proviso to Order 6,

Rule 17 would have no applicability.

In the present case, the trial court has relied upon the proviso to Order 6, Rule 17 of the CPC (Amendment) Act 2002. The amendment of

plaint was necessitated on account of the fact that as per the plaintiffs'' case, the defendant has disturbed the possession during the pendency of the

suit which necessitated the relief for declaration of title and recovery of possession. Such an amendment, by applying the principles relating to

amendment of plaint as applicable before 01.07.2002, would have been allowed notwithstanding the fact such amendment was sought for after the

commencement of actual trial. The trial Court has rejected the application for amendment mainly applying the proviso as interpreted by the learned

Judge of this Court in the decision reported in 2004 (2) CTC 742. However, the clear language contained in Section 16(2)(b) of the CPC

(Amendment) Act 2002 makes it clear that the petition for amendment under Order 6, Rule 17 should have been considered dehors the proviso

which had been introduced for the first time in the CPC (Amendment) Act 2002.

In the present case also, because the existing wall was demolished and a wall was re-constructed by the respondent, the plaintiff who originally

filed the suit for bare injunction, now wanted the relief of declaration apart from mandatory injunction. Therefore, there is necessity to amend the

plaint. Admittedly, the plaint was filed in 1997 much before the amended CPC came into existence. Therefore, the impugned order is set aside.

The Civil Revision Petition is allowed. The plaintiff is permitted to amend the plaint as prayed for. No costs. C.M.P. is closed.