The plaintiff in O.S.No.5563 of 2000 on the file of the City Civil Court, Chennai, is the revision petitioner herein. The suit was filed by the plaintiff/revision petitioner against the defendants/respondents. The said suit was dismissed on merits and the plaintiff carried the matter in appeal before the VI Additional Judge, City Civil Court, Chennai in C.M.P.No.2052 of 2008 in A.S.No.464 of 2007. In the appeal, the plaintiff/revision petitioner has filed an application for the receipt of additional documents, which was allowed. Thereafter, the plaintiff/revision petitioner herein filed an application under Order 6 of Rule 17 C.P.C seeking to amend the plaint for mentioning the survey number in the schedule and also to incorporate certain pleadings in the body of the plaint. In the affidavit, he has alleged that after enquiry with other occupants of the properties, he came to know certain facts and he produced some documents listed C to F in the enclosed application for additional evidence. It is stated that there was a genuine mistake in stating the T.S.Numbers and Block No.3 and the mistake had occurred while drafting the plaint by the advocate. He states that he is an illiterate and he does not know the intricacies involved in conducting cases, and he had not been properly advised by his previous counsel. The particulars of amendments sought for are that it has been wrongly mentioned as T.S.No.2 Block No.4, Arumbakkam Village, but it should have been stated as Survey No.1 and Block No.3, Naduvakkarai Village, situated within the Registration Sub-District of Kodambakkam Registry, and Registration district of 'Chennai Central'.
2.However, it has been stated in the petition that plaintiff's predecessor-in-title lived in the scheduled premises by putting up a fence. It is also mentioned that the petitioner has been enjoying the scheduled premises as his own and the same is hostile to everyone and claims of all including the respondents, the plaintiff is the absolute owner of the scheduled property and the defendants are fully aware of the rights of the plaintiff and of the right, title and possession and enjoyment of the schedule mentioned property for over a period of 30 years and the same is hostile to any and every one including the defendants.
3.Another amendment is to the effect that in in Para 8 of the plaint, the words to be substituted with the words are, "in the year 1969 when the predecessors-in-title were in continuous possession and enjoyment by putting up super structure".
4.At the end of the paragraph the following should be inserted:
'On various dates when the defendants continued to assert their rights in the suit property hostile to all and every one including the defendants'.
5.The respondents have not filed counter before the Court below. However the Appellate Court proceeded to dispose it of on merits. The Court below held that if the petition for amendment is allowed, the character of the suit as well as the suit property also would be changed, the description sought to be included in the plaint is entirely referring to different property and such amendment would completely change the cause of action and character of suit. As far as the applicability of amendment to CPC is concerned, it cannot be of help to the petitioner to pursue the suit which was filed during 2002, as the amendment of the CPC was introduced in the year 1976. The present suit was filed in the year 2000 and hence the strict construction of the provision and the object of Order 6 Rule 17 need not be observed, moreover, the plaintiff failed to show that the proposed amendment would in no way alter the character, nature and cause of action in the suit.
6.The learned counsel for the petitioner Mr.R.Subramanian, submits that the only reason for filing the petition for amendment is that the plaintiff came to know the particulars mentioned in the schedule are different which were not mentioned in the plaint and that the proposed amendment would not change the character or nature of the suit and the cause of action will also not change.
7.The learned counsel for the respondents Mr.Adhi Narayanan, would contend that what was described in the plaint which was originally filed and the description of the property mentioned in the petition for amendment are totally different and if the petition is allowed, the very nature, character and the disputes involved in the suit will be altered. Therefore, he says that the Court below has rightly rejected the petition for amendment.
8.The learned counsel for the petitioner would rely on the decision of the Hon'ble Supreme Court, in the case of Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others reported in (2006) 4 Supreme Court Cases 385 wherein the Apex Court while dealing with Order 6 Rule 17, CPC observed as follows:
"17.In our view, since the cause of action arose during the pendency of suit, the proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there is merely a change in the nature of the 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.
18.As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary have expressed certain opinions and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. It is settled by a catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court.
9.The learned counsel for the respondents, brought to the notice of this Court, the order dated 02.07.2007 passed in W.P.No.18610 of 2007 etc., batch, including the W.P.No.19495 of 2007 filed by the petitioner. This Court after elaborate discussions dismissed the Writ Petitions by observing that the properties covered by the writ petitions are vested with the Board and all rights, title and interest, including the easementary rights of the owners and occupiers stood extinguished and all such right, title and interest vest in the Board free from all encumbrances.
10.This court desists from rendering any opinion as to contents of the order passed in the writ petition, since, it may have any some impact upon appreciation of evidence before the appellate Court. In the considered view of this Court, if the amendment is permitted, it would certainly alter the character and nature of the suit and cause of action would also undergo metamorphic change in view of the new pleadings, for the following reasons:
10(1). Firstly, the particulars in this schedule of the petition sought to be amended is a different description of property and if such amendment is allowed, it would alter the character of the suit and this cannot be done at the appellate stage. If the amendment is to be allowed and another property is to be included, the rights of the respondent would get prejudiced since there is no oral evidence on record for the same.
10(2). Secondly, as far as the other pleadings are concerned, the petitioner in his proposed amendment states that his predecessors-in-title have been in possession and enjoyment of the property for over a period of 30 years and that it is hostile to any and every one including defendants. If it is so, it is in the effect of raising the plea of adverse possession for which also there is no evidence on record. If such pleading is allowed then nature and the cause of action for the suit would change.
11.The learned counsel for the petitioner also states that door number has not changed however, the T.S.No.2 and Block No.4 in Arumbakkam Village are proposed to be changed in to Survey.No.1 Block No.3 in Naduvakkarai Village which is entirely a different property a proposed amendment while portray a different property.
12.In the light of the above said discussion, this Court is of the considered view that the prayer for amendment is not at all sustainable. There is no infirmity or illegality in the order passed by the Court below and the revision petition does not deserve any consideration.
13.Hence, the Civil Revision Petition is dismissed. No costs. Consequently Connected M.P. is also closed.
ssn To The VI Additional Judge, City Civil Court, Madras