The petitioner filed suit in O.S.No.109 of 2000 on the file of the District Munsif, Tiruchengode for Permanent Injunction with regard to 810 Sq.ft., situate within specific four boundaries in Survey No.58/1 in Seetharampalayam Village. He filed I.A.No.154 of 2008 praying the Court to grant leave to amend the plaint to add "kw;Wk; ru;nt bek;gu;/61-2 g[/V/0/71 jP/U:/1/60 ,itfspy;" instead of ",jpy;".
2. In the affidavit he has stated that in the sale deed dated 27.3.2000 relied upon by him, the Survey number has been omitted to be mentioned and hence on 05.06.2000 a rectification deed has been registered and on the basis of which the plaint has to be necessarily amended. The proposed amendment will not change the nature, character and cause of action of the suit.
3. In the counter filed by the respondent/defendant, the above said allegations have been resisted and also it is stated that the amendment will certainly alter the character and nature of the suit; that the petitioner nor his predecessor has any right or title in Survey No.61/2, which absolutely belongs to this respondent; that after the filing of the suit and getting interim injunction order, he purposely made a rectification deed on 05.06.2000 and that the petition is only to protract the proceedings.
4. Learned District Munsif, Tiruchengode, dismissed the application with cost by observing that when the suit is posted for trial finally, the petitioner preferred steps to amend the plaint to include another survey number; that as on the date of filing of the suit, the petitioner was not having title to Survey No.61/2 and that the petition is not maintainable.
5. Mr.N. Manokaran, learned counsel for the petitioner would contend that inasmuch as the description of the property is alone sought to be amended, that the extent of the suit property and the four boundaries are not proposed to be amended and it is a clerical error and that the amendment would not bring about alteration in the nature and character of the suit.
6. Conversely, Mr.P. Mani the learned counsel for the respondent would submit that the plaintiff is trying to introduce a new Survey number into the suit by means of which he wants to include some other property in another survey number which belongs to the respondent and after the institution of the suit the rectification deed was brought about and there is every scope for change in the nature of the suit.
7. As far as the claim of the petitioner is concerned, it is only with regard to the description of the property. To put it otherwise a mis-description of Survey number is sought to be amended. It is no doubt true that the amendment petition has been filed after a long time since the filing of the suit and rectification deed. However, the aspect of delay would not dis-entitle a party to get a relief which he is entitled to. It is well settled that a mis-description of the property can be permitted to be amended, when it would not change the character, nature of the property and cause of action.
8. As far as the proposed amendment is concerned, there could be no question of limitation. As for the present claim of the petitioner, the extent 810 Sq.ft. in the suit property is being covered by two Survey Nos.58/1 and 61/2. It is reiterated, that it is only a mis-description. If the respondent contends that he is the absolute owner of Survey No.61/2, there is every opportunity for him to project such claim by filing additional written statement and to lead evidence in support of the same and his rights are not at all deprived in this regard.
9. Learned counsel for the petitioner would place much reliance of the Supreme Court decision in 2008 (2) CTC 224 [Puran Ram v. Bhaguram & another] in which Their Lordships have observed as follows:
"Allowing the appeal it was held that correction or rectification of a part of description of suit property would not change nature of the Suit. Suit shall remain as a Suit for Specific Performance."
"In this regard, we may observe that the Court may, in its discretion, allow an application for amendment of the Plaint even where the relief sought to be added by amendment is allegedly barred by limitation.
A reading of this observation would amply clear the position that no question of limitation shall arise when mis-description of the name of the original plaintiff or mis-description of the suit property arose in a particular case."
10. Learned counsel for the respondent cites a decision in CDJ 2008 MHC 1438 [K.A. Sheela v. The State of Tamil Nadu Rep. By District Collector and others] in which it is held that if an amendment introduces any different cause of action in respect of different survey number which would alter the nature of the suit, it has to be rejected.
11. In 1987 (2) MLJ 497 [Seetharama Reddiar v. Sri Arulmigu Arunachaleswarar Devasthanam, Thiruvannamalai, rep. By its Executive Officer] it is observed that when an amendment is sought to be made at the time of the pendency of the appeal that too after the expiry of the limitation for substituting the different Survey Number contrary to one mentioned in the original suit, plaint is unsustainable.
12. As per the authority of the Apex Court, it is observed that even if the nature of proposed amendment is allegedly barred by limitation the Court may in its discretion allow such petition. That the amendment sought for herein would in no way change the cause of action. In such view of this matter, it is held that the amendment has necessarily to be allowed, however on payment of cost, since it has been made after a long time on the verge of trial of the suit, putting other side inconvenience. Hence the order challenged is liable to be set aside and it is accordingly set aside.
13. In fine the Civil Revision Petition is allowed on condition that the petitioner shall pay a sum of Rs.2,000/- (Rupees two thousand only) to the respondent side on or before 29.04.2009, in default this Civil Revision Petition shall stand automatically dismissed without further reference to the Court. Connected M.P. is closed.
ggs To The District Munsif, Tiruchengode