Aggrieved by the order dated 23-09-2014 in I.A. No.1336/2014 in O.S. No.129/2011, the petitioner before this court come up with this original petition. The petition was one for seeking amendment of the plaint.
2. The suit as it originally stood as one for injunction simplicitor. The allegation of attempted trespass by the defendants and also from lateral support available to the plaintiff's property, an amendment was thereafter sought for which was allowed and subsequently, the present amendment was sought for. The present amendment is mainly based on the commissioner's report. The commissioner's report would indicate that the property in possession of the plaintiff is less in extent than what is covered by his title deed, whereas the property in the possession of defendant is larger in extent than what is covered by his document of title. On the basis of that observation arrived by the commissioner, the plaint was sought to be amended to one for recovery of possession and for declaration of title.
3. The defendants resisted the petition pointing out that the amendment if allowed, would change the character and nature of the suit and would bring new cause of action and also the original plaint would be substituted by a new plaint. It was also contended that the nature and character of the entire pleadings sought to be given a go by.
4. The court below, after appreciating the materials before it found the contention relied on by the respondent to be correct and came to the conclusion that if the amendments are allowed, it would be substituting a new plaint with new reliefs and pleadings, and that, according to the learned Munsiff, was improper and could not be granted. Accordingly, the petition was dismissed.
5. The learned counsel appearing for the petitioner pointed out that the court below was not justified. There was no change in the nature and character of suit and what was sought was only a consequential amendment as a result of the commissioner's report seeking, to recover a portion of the property of plaintiff which is in the possession of the defendant. The court below was not justified in declining relief in this regard and amendment found to have been allowed.
6. The court below has considered the matter in considerable detail. The court below after referring to the principles governing the law of amendment, found that the amendment in the present case cannot be granted. The court below also found that the amendment if allowed, the available pleadings are to be replaced by different averments and new reliefs. On going to the records, this court also feels the same way.
7. The suit initially filed is one for prohibitory injunction mainly regarding the interference with the lateral support enjoyable by plaint schedule property and also for restraining the defendant from trespassing into plaint schedule property. The commissioner's report, on which considerable reliance is placed by the learned counsel for the petitioner does not say that any portion of the plaint schedule property is in the possession of the defendant or there is nothing to indicate that the plaintiff was holding less extent than what is covered by the deed.
8. The court below has noticed that the long list of amendments sought for would completely change the nature of the suit and substitute the original with new pleadings and reliefs. Obviously, on going through the materials available, this court also concurs with the said finding.
After having bestowed attention to various aspects, no grounds are made out to interfere with the impugned order. This original petition is without merits and it is dismissed.
Sd/-
P. BHAVADASAN, JUDGE.
//true copy// P.S. To Judge St/-