Madras High Court
Andal Ammal vs Bhuvaneswari on 3 February, 2021
C.R.P.(NPD)No.3964 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD)No.3964 of 2015
and M.P.No.1 of 2015
1. Andal Ammal
2. Alamelu Ammal ... Petitioners
Vs.
1. Bhuvaneswari
2. Radhakrishnan (died)
3. Ilayaperumal
4. Gurumurthy
5. Arul
6. Vikraman
7. Perumal
8. Saroja
(R4 recorded as LR of the deceased R2
and R7 & R8 brought on record as
LRs of the deceased R2 vide Court
Order dated 22.01.2021 made in
CMP.Nos.13711 & 13712 of 2020
in C.R.P.No.3964 of 2015) ... Respondents
Prayer:- Civil Revision Petition is filed under Section 115 of C.P.C., to set
aside the fair and decretal order dated 16.07.2015 made in I.A.No.69 of
2013 in A.S.No.86 of 2009 on the file of the Principal Sub Court,
Villupuram and consequently allow the said I.A.
Page 1 of 8
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.3964 of 2015
For Petitioner : Mr.J.Ramakrishnan
For Respondents
For R1, R3 to R8 : Mr.N.Suresh
R2 : Died
ORDER
The Civil Revision Petition is directed as against the fair and
decretal order dated 16.07.2015 passed by the learned Principal Sub Court,
Villupuram, in I.A.No.69 of 2013 in A.S.No.86 of 2009, thereby dismissing
the petitions filed by the petitioner for amendment of plaint.
2. The petitioners are the plaintiffs and they filed suit in
O.S.No.39 of 2007, for declaration and injunction in respect of the suit
property as against the respondents herein. The said suit was decreed and
aggrieved by the same, the respondents filed appeal suit in A.S.No.86 of
2009 on the file of the Principal Subordinate Court, Villupuram. The said
appeal was allowed and as against which the petitioner filed second appeal
before this Court in S.A.No.22 of 2011, and this Court by the judgment and
decree dated 15.06.2011, set aside the order passed in the appeal suit and
remitted the matter back to the first appellate Court for fresh disposal.
Further both the parties are permitted to adduce evidence, whereupon the
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C.R.P.(NPD)No.3964 of 2015
first appellate Court is directed to decide the matter on merits uninfluenced
by any of the observations made by this Court, within a period of four
months from the date of receipt of records.
3. After remanding the appeal suit, the petitioners filed the
present petition to include the prayer of recovery of possession in respect of
the suit property on the ground that, while pending the second appeal, on
27.01.2011 the respondents trespassed into the part of the suit property and
also put up construction with halo blocks. Therefore, the petitioners also
lodged complaint on 27.01.2011 on the file of the Inspector of Police,
Thirukovilur Police Station, and they were issued C.S.R.No.65 of 2011.
However, the trial Court dismissed the petition for the reason that the
petitioner failed to prove that the respondents trespassed in the suit property
and put up construction by material evidence.
4. The learned counsel appearing for the respondents relied upon
the judgment reported in 2012 5 CTC 37 in the case of Gnanasoundiran
Vs. Gunasekaran which reads as follows :-
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C.R.P.(NPD)No.3964 of 2015
"8. It is to be noted that the petitioner/
plaintiff has come forward with the Interlocutory
Application seeking for amendment after
commencement of trial. Admittedly, the petitioner
has not made out a case that in spite of his due
diligence, he could not have filed the Amendment
Application before commencement of trial. It is to
be noted that the petitioner/plaintiff has
categorically stated in para 3 of the Plaint that
after the death of Rasi Kandiyar on 4.1.2003, the
so-called will had come into effect and she had
taken the suit property in her possession and
enjoying the same. Therefore, when the suit
property was claimed to be in possession of the
petitioner, she could not seek for amendment of
the plaint as regards, 'recovery of possession'
which as rightly held by the Trial Court that it
would certainly cause prejudice to the
respondent/defendant. However, it is now well
settled that no amendment can be allowed after
commencement of trial. In recent decision J.
Samuel & other Vs. Gattu Mahesh & Others,
reported in 2012 (2) SCC 300, after enunciating
all relevant decisions in the field and held in para
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C.R.P.(NPD)No.3964 of 2015
23 as under:
"23. Though the counsel for the appellants
have cited many decisions, on perusal, we are of
the view that some of those cases have been
decided prior to the insertion of Order VI Rule 17
with proviso or on the peculiar facts of that case.
This Court in various decisions upheld the power
that in deserving cases, the Court can allow
delayed amendment by compensating the other
side by awarding costs. The entire object of the
amendment to Order VI Rule 17 as introduced in
2002 is to stall filing of application for amending
a pleading subsequent to the commencement of
trial, to avoid surprises and that the parties had
sufficient knowledge of other's case. It also helps
checking the delays in filing the applications."
This Court held that even in the plaint there are avernments that the suit
property is in possession of the defendant, the plaintiff would have sought
for recovery of possession at the time of filing suit itself.
5. Whereas in the case on hand, the petitioner initially filed suit
for declaration and permanent injunction in respect of the suit property.
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C.R.P.(NPD)No.3964 of 2015
While the second appeal was pending before this Court, on 27.01.2011, the
respondents trespassed into the suit property and also put up constructions.
In fact, the petitioners lodged complaint and they were issued C.S.R.No. 65
of 2011 on the file of the Inspector of Police, Thirukovilur Police Station.
Therefore, the above cited case is not applicable to the case on hand.
6. That apart the amendment sought for in this petition is to
include the prayer of recovery of possession as well as the mandatory
injunction to remove the construction put up by the respondents herein
along with the original prayer of declaration. If the petition is allowed, it
would not cause any prejudice to the respondents and they also permitted to
file additional written statement for the amendment made in the plaint.
Therefore, the order passed by the Court below is perverse and liable to be
set aside.
7. Accordingly, the order dated 16.07.2015 passed by the learned
Principal Sub Court, Villupuram, in I.A.No.69 of 2013 in A.S.No.86 of
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C.R.P.(NPD)No.3964 of 2015
2009 is hereby set aside. The trial is directed to permit the petitioners to
amend the plaint. It is made clear that the respondents are at liberty to file
additional written statement for the amendment made in the plaint.
8. With the above directions, the Civil Revision Petition is
allowed. There shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
03.02.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The Principal Sub Court,
Villupuram.
2. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(NPD)No.3964 of 2015
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.(PD)No.3964 of 2015
and M.P.No.1 of 2015
03.02.2021
https://www.mhc.tn.gov.in/judis/
