Challenging the fair and decreetal order dated 29.11.2008 passed by the District Munsif cum Judicial Magistrate, Natham in I.A.No.117 of 2008 in O.S.No.34 of 2006, this revision has been filed.
2.The petitioner is the plaintiff and the respondent is the defendant. The petitioner/ plaintiff has filed the suit O.S.No.34 of 2006 for permanent injunction in respect of S.No.84/5B. During the pendency of the suit, the revision petitioner filed I.A.No.117 of 2008, under Order 6 Rule 17 and Section 151 of C.P.C. to amend the plaint. In the said petition, he claimed that the property in respect of 84/C has to be included as suit property, because the respondent/defendant is denying her title. After hearing both sides, the trial Court dismissed the petition. Challenging the said order, this Civil Revision Petition has been preferred by the plaintiff.
3.Learned counsel for the revision petitioner relied on the decision of this Court in C.V.Rambabu v. V.C. Jayanthi reported in (2009) 2 MLJ 893 and argued that amendment should be allowed liberally. In the said decision Honourable Mr. Justice N.Paul Vasanthakumar has pointed out that the Court has the Power under Order 6 Rule 17 CPC to allow amendment of pleadings, which are necessary for the purpose of determining the real question in controversy between the parties and when the amendment prayed for by the plaintiff does not alter the nature of the case and no prejudice is caused to the defendant by ordering amendment, the court ought to have allowed the application seeking amendment of the plaint.
4.In Rajkumar Gurawara v. M/s.S.K.Sarwagi & Co. Pvt. Ltd. reported in AIR 2008 Supreme Court 2303, our Honourable Supreme Court has pointed that Order 6 Rule 17 C.P.C. confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to have made after the commencement of the trial. The opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after the completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso.
5.The revision petitioner originally filed the suit for injunction in respect of S.No.84/5B. Now, he wants to include S.No.84/5C. In the counter statement the respondent has clearly admitted that the Southern portion in S.No.84/5C, which is situated on the eastern side of the suit property belongs to the petitioner and the northern portion belongs to Koonan S/o. Pothialagan and the respondent never interfered in the possession and enjoyment of the petitioner in S.No.84/5C. Before, this Court also, the learned counsel for the respondent would admit the title of the petitioner in respect of the southern portion in S.No.84/5C and the respondent is not causing any disturbance to the petitioner in enjoying S.No.84/5C.
6.In the affidavit filed in support of I.A.No.117 of 2008, the petitioner has stated that subsequent to the purchase of 50 cents in S.No.84/5C on 07.03.2002, the respondent/defendant attempted to interfere with the petitioner's right and possession and owner of the said survey number. So, it is a separate cause of action and the petitioner has to file separate suit for that. Since, the respondent/defendant is not disputing the title and he is not causing interference, the claim of the petitioner to amend the prayer cannot be entertained.
7.Learned counsel for the respondent would point out that the plaint was filed on 25.06.2004; written stated was filed on 25.02.2005; proof affidavit was filed by plaintiff's son on 11.07.2007; I.A.No.215 of 2007 was filed on 07.08.2007 to mark unregistered document; I.A.No.215 of 2007 was allowed on 24.09.2007 with condition to pay stamp within 15 days; the plaintiff failed to pay the penalty stamp duty and also failed to seek extension of time; I.A.No.280 of 2008 was filed on 06.06.2008 by plaintiff's brother Lakshmanan to implead him and the same was dismissed by the learned District Munsif, Natham, against which no revision has been preferred; I.A.No.117 of 2008 was filed on 11.06.2008 to amend the prayer and the same was dismissed on 29.11.2008; certified copy of the executable order and fair order in I.A.No.117 of 2008 was ready on 12.02.2009 and the present Civil Revision Petition was filed only on 19.06.2009. So, relying on the above details, learned counsel for the respondent contended that the petitioner is trying to protract the proceedings.
8.The stand of the defendant is that the amendment of the suit property will defeat his case on the ground of limitation. Moreover, after the commencement of trial, the petitioner has come forward with this petition. The petitioner has no consistent case. He wanted to introduce a new case and new cause of action. It will prejudice the respondent. Having tested this case in the light of the above said decision of the Honourable Apex Court, it is needless to say the proposed amendment will snatch away the right of the respondent on the ground of limitation. Hence, I find no reason to interfere with the findings of the court and there is no merit in the Civil Revision Petition and the same is liable to be dismissed.
9.Accordingly, the Civil Revision petition is dismissed. No costs. Consequently, connected M.P.(MD) No.1 of 2009 is dismissed. The trial Court is directed to dispose of the suit within 6 months from the date of receipt of a copy of this order.
sj To
1. The District Munsif cum Judicial Magistrate, Natham.