Madras High Court
Ramachandran vs Sampath on 7 January, 2021
CRP.(PD).No.3443 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD).No.3443 of 2015
and
M.P.No.1 of 2015
Ramachandran ..Petitioner
Vs.
Sampath ..Respondent
PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India,
praying to set aside the fair and decreetal orders passed in I.A.No.54 of 2015 in
O.S.No.153 of 2009 dated 22.04.2015 on the file of the court of District Munsif
Court cum Judicial Magistrate, Kattumanar Koil and allow the said I.A by
allowed this Civil Revision Petition.
For Petitioner : Mr.A.Muthukumar
For Respondent : No appearance
ORDER
This Civil Revision Petition is directed as against the fair and decreetal
order passed in I.A.No.54 of 2015 in O.S.No.153 of 2009 dated 22.04.2015 on
the file of the court of District Munsif Court cum Judicial Magistrate,
Kattumannarkoil, thereby dismissing the petition filed by the petitioner for
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CRP.(PD).No.3443 of 2015
amendment of the plaint to include the prayer of recovery of possession in
respect of the suit schedule property.
2. The petitioner is the plaintiff, he filed a suit for bare injunction as
against the respondent in respect of the suit property on the ground that the
petitioner is the absolute owner of the property, while being so the
respondent compelled the plaintiff to let out the property for cultivating.
when the petitioner denied the request made by the respondent he attempted
to trespass into the property. Hence, the petitioner is constrained to file a
suit for injunction.
3. While pending suit, the respondent trespassed into the property and
as such the petitioner was constrained to file a petition for amendment of
plaint to include the alternative relief of recovery of possession with the
original prayer of permanent injunction as against the respondent herein.
4. The trial court dismissed the petition for the reason that though the
respondent categorically avered in the written statement that his father and
the respondent are cultivating the suit property for the past 50 years and they
are in possession of the property, the petitioner did not take any steps to
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CRP.(PD).No.3443 of 2015
include the prayer of recovery of possession immediately after filing the
written statement. When the suit is posted for cross examination of PW1 the
present application was filed and as such dismissed.
5. The learned counsel for the petitioner would submit that the
petitioner is the absolute owner of the suit property, in fact it is categorically
admitted by the respondent in the written statement. Though the respondent
avered in the written statement that he is in possession of the suit property
and cultivating the suit property, no piece of evidence is produced to show
that he is in possession of the suit property. While pending suit, the
respondent trespassed into the suit property, as such the petitioner filed
petition for amendment to include the alternative prayer of recovery of
possession in respect of the suit property.
6. In support of his contention, he relied upon the judgment in Rajesh
Kumar Aggarwal and others vs. K.K.Modi and others reported in 2006 (3)
MLJ 70 SC, wherein, the Hon'ble Supreme Court has observed as follows:-
15. This rule declares that the Court may, at
any stage of the proceedings, allow either party to
alter or amend his pleadings in such a manner and
on such terms as may be just. It also states that such
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CRP.(PD).No.3443 of 2015
amendments should be necessary for the purpose of
determining the real question in controversy
between the parties. The proviso enacts that no
application for amendment should be allowed after
the trial has commenced, unless the Court comes to
the conclusion that in spite of due diligence, the
party could not have raised the matter for which
amendment is sought before the commencement of
the trial.
16. The object of the rule is that Courts
should try the merits of the case that come before
them and should, consequently, allow all
amendments that may be necessary for determining
the real question in controversy between the parties
provided it does not cause injustice or prejudice to
the other side.
17. Order VI Rule 17 consist of two parts
whereas the first part is discretionary (may) and
leaves it to the Court to order amendment of
pleading. The second part is imperative (shall) and
enjoins the Court to allow all amendments which are
necessary for the purpose of determining the real
question in controversy between the parties.
18. In our view, since the cause of action
arose during the pendency of the suit, proposed
amendment ought to have been granted because the
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CRP.(PD).No.3443 of 2015
basic structure of the suit has not changed and that
there was merely change in the nature of relief
claimed. We fail to understand if it is permissible
for the appellants to file an independent suit, why
the same relief which could be prayed for in the new
suit cannot be permitted to be incorporated in the
pending suit.
20. While considering whether an application
for amendment should or should not be allowed, the
Court should not go into the correctness or falsity of
the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment
and the merits of the amendment sought to be
incorporated by way of amendment are not to be
adjudged at the stage of allowing the prayer for
amendment. This cardinal principle has not been
followed by the High Court in the instant case.
7. The Hon'ble Supreme Court of India held that since the cause of
action arose during pendency of the suit, the amendment ought to have been
granted because the basic structure of the suit has not changed and there was
merely a change in the relief claimed. In the case on hand, the original suit
was filed for injunction against the respondent herein. Pending suit the
respondent trespassed into the property and as such the cause of action arose
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CRP.(PD).No.3443 of 2015
during the pendency of the suit the petitioner filed amendment petition with
an alternative prayer of recovery of possession. It would not change the basic
structure of the suit.
8. Therefore, the order passed by the court below is perverse and is
liable to be set aside. Accordingly, the fair and decreetal order made in
I.A.No.54 of 2015 in O.S.No.153 of 2009 dated 22.04.2015 on the file of the
court of District Munsif Court cum Judicial Magistrate, Kattumanar Koil is set
aside and the Civil Revision Petition is allowed. No costs. Consequently, the
connected miscellaneous petition is closed.
07.01.2021
dsa
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
To
The District Munsif Court cum Judicial Magistrate,
Kattumanar Koil.
https://www.mhc.tn.gov.in/judis/
CRP.(PD).No.3443 of 2015
G.K.ILANTHIRAIYAN,J.
dsa
C.R.P.(PD).No.3443 of 2015
07.01.2021
https://www.mhc.tn.gov.in/judis/
