This Civil Revision Petition has been preferred by the petitioners herein, who are the Defendants 1, 2, 4, 6 to 10 in the suit, against the order passed in I.A.No.17 of 2009 in O.S.No.125 of 2009 dated 26.03.2009, on the file of the District Munsif Court, Periyakulam.
2. The brief facts of the case are as follows:-
The plaintiffs/respondents 1 and 2 herein have filed the suit as against the petitioners and the respondents 3 and 5 herein/defendants 1 to 10 for permanent injunction or in the alternative for declaration of title to the suit property and for mandatory injunction for demolition of the unauthorized construction put up by the defendants on the eastern side.
3. The defendants 1, 4 and 6 have filed a written statement, disputing the claim of the plaintiffs and have pleaded that they are in possession and enjoyment of the property for the past 60 years to the knowledge of the plaintiffs. The fourth defendant has specifically pleaded in the written statement inter-lia that he has constructed six houses in the said suit property prior to 13 years and thus he has perfected title by way of adverse possession. The contesting defendants have pleaded that the patta and the revenue records stand in their names in respect of the suit property.
4. Pending the suit, the plaintiffs/respondents 1 & 2 have filed an application in I.A.No.297 of 2008 for impleadment of the defendants 7 to 10 on the ground that at the instance of the fifth defendant, one, Andichamy has put up unauthorized construction in or about January 2007 and on his death, the defendants 7, 8, 9 and 10 are occupying the said portion unauthorizedly constructed by the said Andichamy and the said application has been allowed. Since the defendants 9 & 10 were minors as per order in I.A.No.298 of 2008, the eighth defendant has been appointed as the guardian of the minor defendants. After such impleadment, the respondents 1 & 2/plaintiffs have filed an application in I.A.No.17 of 2009 to amend the plaint, where-under the relief is sought for directing all the defendants to remove the unauthorized construction and hand over the vacant possession to the plaintiffs and the said amendment has been allowed by the learned District Munsif, Periyakulam by order dated 26.03.2009, which is challenged in this revision.
5. Mrs.J.Padhmaavathi Devi, the learned counsel for the petitioners would urge that the proposed amendments would introduce a new cause of action, as the amendment sought to be made is without any pleadings and further would contend that the buildings were in existence even prior to the filing of the suit which is also affirmed by the Advocate Commissioner in his report and as such no amendment for mandatory injunction could be allowed and thus assailed the order of the learned District Munsif, Periyakulam as against law and suffers from material irregularity.
6. Per contra, Mr.M.Mariappan, the learned counsel for the respondents 1 & 2 would submit that it is consistently held by the Hon'ble Supreme Court that pre-trial amendments have to be allowed liberally and the petitioners would not be prejudiced in any manner, as they will have an opportunity to contest their case in the trial, whereas, if the amendment was not allowed, the respondents will be put to irreparable loss and hardship. He would further submit that for determining the real question in controversy between the parties, the amendment is very much necessary and thus would support the order of the court below. He places reliance on the decision rendered by the Hon'ble Supreme Court in the case of Rajkumar Gurawara (Dead) Thr. L.Rs. Vs. M/s.S.K.Sarwagi & Co. Pvt. Ltd., & Another [AIR-2008-SC-2303] in support of his contention that pre-trial amendments have to be allowed liberally than those sought to be made after commencement of trial.
7. In the instant case, the plaintiffs have pleaded that the defendants had put up construction unauthorizedly in the suit property, taking advantage of the joint patta granted in their favour and originally sought for the relief of permanent injunction or in the alternative for declaration and for mandatory injunction. Pending the suit, it is claimed by the plaintiffs that one Andichamy had put up construction and at present, the defendants 7 to 10 are in occupation and on their impleadment plaintiff seeks further relief of mandatory injunction to direct all the defendants to demolish the construction put up by them and hand over the vacant possession to the plaintiffs, by way of the proposed amendment.
8. The amendment sought for goes to the very root of the main cause of action that they are the owners of the suit property and inherited from their ancestors. The controversy between the parties is as to who is entitled to remain in possession and as to whether the construction put up by the defendants 7 to 10 were made as early as in 2005 and further, whether the structures in the suit property existed long prior to the suit could be decided only in the trial after both the parties adduce evidence. The proposed amendment cannot be said to be unnecessary in the factual matrix of this case, as there is a specific plea by the plaintiffs that the defendants 7 to 10 have put up the super structure and prior to that, the defendants have raised structures in the suit property taking advantage of the joint patta granted to them.
9. It is laid down by the Hon'ble Supreme Court rendered in the case of Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and others [AIR 1974 SCC 1178] that ordinary the procedure followed by the Courts is that a suit is tried in all its stages on the cause of action as it existed on the date of its institution, but it is open to a Court to take notice of events which have happened after the institution of the suit and afford the appropriate relief to the parties in the changed circumstances if it is shown that the relief claimed originally has
1) by reason of subsequent change of circumstances become inappropriate;
2) where it is necessary to take note of the changed circumstances in order to shorten the litigation, or
3) to do complete justice between the parties.
10. The object of Order 6, Rule 17 primarily is that if because of certain facts not being pleaded or because of deficiencies in the pleadings, the question involved between the parties cannot be finally determined and unless it is finally determined there is likelihood of multiplicity of proceedings and in such situation Order 6, Rule 17 empowers the Court to permit such amendments which are necessary for final determination of the issues in dispute or the real point in dispute between the parties. In the context of facts stated in the amended application, it is seen that only additional facts are stated in view of the subsequent events and in the said circumstances, an additional approach to same facts cannot amount to make out a new case as contended by the learned counsel for the petitioners. It is to be pointed out that the provisions of Order 6 Rule 17 have been included to do justice and not to shut out justice merely on technicalities of pleadings.
11. In the case of Haridas Girdharidas and others Vs. Vasadaraja Pillai and another [AIR-1971-SCC-2366], it has been held by the Hon'ble Supreme Court that role of conduct of the Court is that "however, negligent or careless the first omission made have been, and however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.
12. Bearing in mind the above principles and dictum enunciated by the Hon'ble Supreme Court, in this case it cannot be said that a new cause of action has been introduced by way of an amendment. In order to do justice to both the parties and to avoid multiplicity of proceedings, this amendment requires to be allowed.
13. The Court below has taken into consideration the controversy involved between the parties and has allowed the petition not only on the ground that the defendants 7 to 10 had already been impleaded, but it has also taken note of the points raised by the petitioners and has held that those issues can be gone into at the time of trial, as it requires oral and documentary evidence and allowed the amendment.
14. In such view of the matter, I am of the considered view that the impugned order of the court below does not suffer from any illegality or infirmity and hence, this Civil Revision Petition deserved to be dismissed. Accordingly, the Civil Revision Petition is dismissed. There shall be no orders as to costs.
DP To The District Munsif, Periyakulam.