Madras High Court
Rajeswari vs Veerappan on 13 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(PD)(MD)No.935 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 13.02.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(PD)(MD)No.935 of 2022
and
C.M.P(MD)No.3722 of 2022
Rajeswari ...Petitioner/Petitioner/Plaintiff
Vs.
1.Veerappan
2.VR.Amirthaselvi ...Respondent/Respondent/Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of Constitution of
India, against the Fair and Decreetal order, dated 15.03.2022, made in I.A.No.
74 of 2022 in O.S.No.84 of 2012, on the file of the Additional Subordinate
Court, Pudukottai.
For Petitioner : Mr.S.I.Muthiah
For Respondents : Mr.G.Sridharan
*****
ORDER
The plaintiff in O.S.No.84 of 2012, on the file of the Additional
Sub Court, Pudukottai, is the revision petitioner herein.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.935 of 2022
2.The plaintiff had filed the above said suit for the relief of declaration of
title and recovery of possession of the vacant site from the defendants.
3.A perusal of paragraph No.4 of the plaint reveals that the defendants
had encroached into the suit schedule property in January 2010 and they have
put up the house property. However, in the plaint schedule, there is no reference
about the building. The defendants had filed a written statement on 22.09.2018,
wherein, paragraph No.8, it is specifically contended that the building was put
up in the year 2002.
4.The plaintiff had filed I.A.No.74 of 2022 under Order 6 Rule 17 of
C.P.C. to amend the plaint schedule property, so as to incorporate the existence
of the building. The said application was resisted by the defendants on the
ground that such a prayer is barred by limitation and it cannot be introduced, in
view of the proviso to Order 6 Rule 17 of C.P.C. The trial Court after
considering the submissions made on either side had proceeded to dismiss the
application on the ground that the plaintiff has not shown due diligence in filing
the application under Order 6 Rule 17 of C.P.C. Challenging the same, the
present revision petition has been filed.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.935 of 2022
5.According to the learned Counsel appearing for the revision petitioner,
the prayer in the plaint is only for recovery of vacant possession. In such
circumstances, the introduction of the existence of the building in the plaint
schedule property would not alter the cause of action or cannot cause any
prejudice to the defendants. He relied upon the judgment of full Bench of the
Madhya Pradesh High Court reported in ILR (1968) MP 472 had contended
that where the plaintiff is not claiming any right over the building, but simply
seeks possession of the vacant site, after demolition of the building, such as
superstructure/building need not be valued. Therefore, according to the learned
Counsel appearing for the revision petitioner, the introduction of the existence
of the building in the suit property, is not going to alter the value of the
property.
6.The learned Counsel appearing for the revision petitioner had further
contended that when the existence of the building had already been mentioned
in paragraph No.4 of the plaint, introducing the same in the suit schedule
property is, only to rectify inadvertent mistake and therefore, the question of
invoking the proviso order 6 Rule 17 of C.P.C. would not arise. Hence, he
prayed for allowing the revision petition.
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.935 of 2022
7.Per contra, the learned Counsel appearing for the respondents herein
had contended that the plaintiff having knowledge about the existence of the
building in the suit schedule property, had wantonly avoided to mention the
same in the schedule of property to avoid the payment of additional Court fee.
He further contended that evidence of P.W.1 was closed, only at that stage, the
present application has been filed. Therefore, it is a post trial amendment. In
such circumstances, only if the plaintiff establishes his due diligence in not
filing such an application, it cannot be considered. He further pointed out that
the existence of the building had also been referred to in the written statement.
Hence, he prayed for sustaining the order passed by the trial Court.
8.I have considered the submissions made on either side and perused the
materials available on record.
9.The present amendment application has been filed by the plaintiff to
incorporate the existence of the building in the schedule of property. A perusal
of the plaint indicates that in paragraph No.4, encroachment made by the
defendants and the construction put up by them are being referred to. However,
the plaint schedule property had not reflected the existence of the building. The
existence of the building was pointed out in the written statement, which was
filed on 22.09.2018. However, the present application has been filed on
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.935 of 2022
16.02.2022, when the cross examination of P.W.1 was completed. Hence, it is
clear that the present amendment application is a post trial amendment.
Therefore, unless the plaintiff establishes that despite due diligence, he could
not file the amendment application, such an application cannot be considered.
10.In the present case, the plaintiff has pointed out that the existence of
the building from the year 2010 onwards. The defendants in his written
statement had pointed out that the building is in existence from 2012 onwards.
In such circumstances, the plaintiff had filed a suit on 14.02.2012 and had
waited for more than ten years to file his application.
11.Therefore, this Court is of the considered opinion that the plaintiff has
not established the fact that despite due diligence, such an amendment
application cannot be filed. The trial Court has rightly dismissed the
application. There are no merits in the revision petition. Accordingly, this Civil
Revision Petition stands dismissed. No costs. Consequently, connected
miscellaneous petition is also closed.
13.02.2025
Internet:Yes/No
Index:Yes/No
RJR
https://www.mhc.tn.gov.in/judis
C.R.P.(PD)(MD)No.935 of 2022
R.VIJAYAKUMAR, J.
RJR
To
The Additional Subordinate Court, Pudukottai.
Copy to:-
The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
C.R.P.(PD)(MD)No.935 of 2022
13.02.2025
https://www.mhc.tn.gov.in/judis
