Venkatamma and Another vs Chandra and Others

S.M. Sidickk, J.—The revision petitioners are the defendants and the 1st respondent is the plaintiff before the lower court.

This civil revision petition is directed as against the fair and decretal order of the learned District Munsif at Krishnagiri passed in 8.12.1997 in the

amendment application in I.A.No. 1284 of 1997 in O.S.No. l61 of 1993.

The 1st respondent/plaintiff originally filed the suit in O.S.No. 161 of 1993 for the relief of declaration that she is entitled to the suit property and

for consequential permanent injunction restraining the defendants from trespassing into the suit property. A written statement was filed and issues

were framed and the trial had commenced and the evidence of both sides was completed. Then the 1st respondent/plaintiff herein filed an

amendment application in I.A.No. 1284 of 1997 under O.6, Rule 17 of C.P.C. by setting out and the proposed amendment in the following

words:

The defendants after the filing of the suit forcibly trespassed into the suit property and dispossessed the plaintiff on 29.4.1993 and they are in

unlawful possession.

The lower court after considering the contentions of both sides and the materials on record allowed the amendment application in I.A.No. 1284

of 1997 on 8.12.1997 against which the present civil Revision Petition is filed by the petitioners, who are the defendants 1 and 3 before the trial

court. The defendants 2 and 4 did not join in this Revision Petition and they have been cited as respondents 2 and 3 in this revision petition. In the

above background we have to consider the contentions raised on behalf of the revision petitioners.

The learned Counsel for the revision petitioners argued that the court below failed to note that totally a new case cannot be put forward by way

of an amendment, and the said is contrary to the very spirit of O.6, Rule 17 of C.P.C., and the court below ought to have seen that the 1st

respondent/plaintiff had specifically pleaded that she was in possession of the suit property on 11.11.1997, and the plea of trespass thereafter is

totally a new case and the 1st respondent/plaintiff has come forward with the amendment application setting up a new case on the new set of facts,

and the 1st respondent/plaintiff was attempting by the proposed amendment to withdraw the admission made by her before the trial court, when

she was examined as P.W.1 and the plaintiff cannot be allowed to withdraw her admission, and in those circumstances this civil revision petition

must be admitted, and the order of the lower court in the amendment petition must be set aside.

In support of the above contentions the learned Counsel for the revision petitioners relied on the two decisions reported in Kumaraswami

Gounder and Others Vs. D.R. Nanjappa Gounder (dead) and Others, and Radhika Devi Vs. Bajrangi Singh and others, . The decision reported in

Radhika Devi Vs. Bajrangi Singh and others, was a case where the appellant therein has instituted partition suit for partition of certain properties,

and the respondents 16 to 20 therein filed written statement wherein they pleaded that Ramdeo Singh had executed a registered gift deed in their

favour in 28.7.1978 bequeathing the properties covered thereunder. Pending the suit the appellant therein filed an application under O.6, Rule 17,

C.P.C. on 11.11.1992 seeking declaration that the gift deed was obtained by the respondents illegally and fraudulently and therefore it was

ineffective and does not bind the appellant therein. Shri Sanyal, the learned Senior counsel for the respondents therein, contended that the

appellants had lost the right to seek the above declaration as being barred by limitation. In the light of the above facts and circumstances of the

case the Supreme Court held in the following words:

The registration of the document is a notice to every one claiming any right, title and interest therein, even otherwise the respondents in the written

statement filed on 15.6.1988 had specifically pleaded about the gift being made by Ramdeo Singh in their favour. Despite that the appellant had

not taken any steps till November, 1992 by which time even the suit for declaration within the limitation of three years from the date of Knowledge

had got time barred.... We find no force in the contention of the appellant. No doubt the amendment of the plaint is normally granted and only in

exceptional cases where the accrued rights are taken away by amendment of the pleading.

Such was not the case before us. Here is a case where the 1st respondent/plaintiff filed the suit for declaration of her title to the suit property and

for consequential permanent injunction restraining the defendants from trespassing into the suit property. While so, according to the 1st

respondent/plaintiff, the defendants herein trespassed into the suit property after the filing of the present suit. So the facts in the present case are

totally different from the facts in the Supreme Court case reported in Radhika Devi Vs. Bajrangi Singh and others, , wherein a gift deed is attacked

and challenged as a fraudulent document in which case the suit should have been filed within three years to set aside the fraudulent gift deed therein.

In these circumstances, I am of the view that the decision of the Supreme Court reported in Radhika Devi Vs. Bajrangi Singh and others, will have

no application to the facts of the present case before us.

Then the other decision relied on by the learned Counsel for the revision petitioners is the decision reported in Kumaraswami Gounder and

Others Vs. D.R. Nanjappa Gounder (dead) and Others, . That was a case where the facts are set out at page 291 in the following words:

We have therefore rejected Ex.B-62 as unreliable. The net result of the discussion on this part of the case is that it has been proved that Kaliammal

was alive on the date of death of Sengammal. Under the Hindu Succession Act, the estate would devolve on Kaliammal as she is the sister of

Periya Ramana Gounder. Because of the later discoveries, if we can use that expression, made, a new complexion had been given to the suit. The

plaintiffs having been put in such an inconvenient position, have applied for an amendment of the plaint in C.M.P.No. 9869 of 1977. They would

allege that the title of Kaliammal and her successors-in-interest stands extinguished by the operation of Section 27, Limitation Act, 1963 and on

that ground alone the plaintiffs and the first defendant are entitled to the suit properties as being the next in the line of succession.... The

reversionary succession to Periya Ramana having opened in 1958 on the death of Sengammal, the title if any of Kaliammal and her successors-in-

title, stands extinguished by virtue of the provision of the Limitation Act. By virtue of such extinguishment the plaintiff and the first defendant are

entitled to succeed as reversioners as defendants 2 and 3 and the other defendants claiming under them are not in the line of succession....

In the light of the above facts and circumstances of the case the learned Judges of our Madras High Court held in para 19 as follows:

Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex

facie cannot stand on a line with the original pleading, we are unable to allow this application for amendment.... It would be hazardous to accept

such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to

the essential ratio governing the principle of amendment of pleading, which is that no amendment can introduce a cause of action which was never

thought of originally or could not have thought of earlier and which is diametrically opposite to that state in the original plaint....

Thus the decision of our Madras High Court reported in Kumaraswami Gounder and Others Vs. D.R. Nanjappa Gounder (dead) and Others,

is a case of line of succession, and the line of succession pleaded in the original plaint was diametrically opposite to one set out in the proposed

amendment. Therefore in my view the facts and circumstances of the case in the decision reported in Kumaraswami Gounder and Others Vs. D.R.

Nanjappa Gounder (dead) and Others, are distinguishable from the facts and circumstances of this case wherein the original suit was for the relief

of declaration and permanent injunction and by way of the proposed amendment the plaintiff in this suit wants to seek the relief of possession on

the basis that the defendants herein trespassed into the suit property during the pendency of the suit.

The learned Counsel for the revision petitioner pointed out that there is an admission made by P.W.1 Chandra about the possession in her

evidence, and by the proposed amendment she wanted to withdraw such an admission, and in particular he stated that the plaintiff has pleaded that

she was in possession on 11.11.1997. In support of the above contention he also produced the certified copy of the deposition P.W.1 Chandra,

who is the plaintiff in the suit. On a perusal of the entire evidence of P.W.1 Chandra I could not find any admission made by her that she was in

possession of the suit property on 11.11.1997. It is evident from the certified copy of the deposition that she was examined on 11.11.1997 and it

does not mean that she has stated that she is in possession on 11.11.1997. Per contra, she asserted during her cross examination in the following

words in Tamil:

Thus P.W.1 has stated during her cross examination that she filed the suit for declaration of her title, and she was cultivating the suit property

prior to the suit, and after filing of the suit the defendants trespassed into the suit property and now the 2nd defendant is in possession of the same.

Nowhere in the testimony of P.W.1 she has stated that she was in possession of the suit property on 11.11.1997 which is an alleged admission

according to the learned Counsel for the revision petitioners and which alleged admission was being attempted to be taken away by way of the

proposed amendment. The statement of P.W.1 Chandra extracted above in Tamil during her cross-examination was not even challenged by

putting a suggestion that the plea of trespass is a false one. While so on the facts and circumstances of this case it is futile contend that the 1st

respondent/plaintiff examined as P.W.1 Chandra has set up a new case, which is diametrically opposite to the earlier case put forward by her.

It is now well settled that the court should adopt a liberal attitude in allowing the amendment of pleadings unless the nature of the amendment is

such as to alter the basis of the suit or introduce a new ground. In the present case by the proposed amendment the first respondent/ plaintiff has

not altered the suit as she has asked for the relief of possession only instead of injunction. The defendants have not pleaded in their written

statement either adverse possession or limitation. Therefore there is no question of limitation that would arise in this case by allowing the proposed

amendment. In a suit for injunction where an amendment is sought for the alternative relief of possession, it may be allowed, even if it deprives the

defendants of his plea as to the maintainability of the suit. This was the view taken by Himachala Pradesh High Court in the decision reported in

Smt. Batni and Others Vs. Shri Tej Singh,

In the decision of the Supreme Court reported in Gopi Pillai v. Dr. Swamy (1990) 1 L.W. 363 (S.C.), it was laid down that where the plaintiff

sought an amendment of plaint in order to add a relief of possession in case he was not found to be in possession of the property in dispute, it can

be allowed on payment of costs even though the amendment was sought after a number of witnesses were examined. Similarly an amendment of

plaint relating to the relief of possession in addition or in lieu of specific performance can well be allowed under O.6, Rule 17 of C.P.C. as pointed

out by the Supreme Court in the decision reported in Jagdish Singh Vs. Natthu Singh, para 10.)

So the dictum laid down by the Supreme Court is that where there is an alternative relief asked for by the proposed amendment, it can be very

well allowed under O.6, Rule 17 of C.P.C. In the present case P.W.1 Chandra Who is the plaintiff in the suit, has spoken to the fact that

subsequent to the filing of the present suit the defendants trespassed into the suit property, and the 2nd defendant is in possession of the suit

property and his possession is illegal. In the face of these facts and circumstances of the case and in light of the testimony of P.W.1 Chandra, I am

of the view that there is no illegality or irregularity committed by the trial court in allowing the amendment prayed for under O.6, Rule 17 of C.P.C.

in I.A.No. 1284 of 1997 in O.S.No. 161 of 1993. Hence I hold that this civil revision petition is devoid of merits, and the same has to be

dismissed without costs, and the fair and decretal order passed by the learned District Munsif at Krishnagiri in I.A.No. 1284 of 1997 in O.S.No.

1f61 of 1993, 8.12.1997 are to be confirmed and consequently, I answer this point against the appellants/defendants.

In the result, the civil revision petition is dismissed without costs. The fair and decreetal order passed by the learned District Munsif of

Krishnagiri in I.A.No. 1284 of 1997 in O.S.No. 161 of 1993 on 8.12.1997 are confirmed.

Consequently the stay petition in C.M.P.No. 13728 of 1998 is also dismissed as unnecessary.