The petitioner has filed this civil revision petition assailing the the fair and decreetal order dated 03.10.2012 made in I.A.No.637 of 2012 in O.S.No.18 of 2012 on the file of the learned Principal District Munsif, Kallakurichi.
2. The facts in a nutshell are as under: The petitioner is the plaintiff who filed the suit in O.S.No.18 of 2012 before the learned Principal District Munsif, Kallakurichi, seeking declaration and injunction restraining the respondents from putting up construction in the basement put up by the petitioner.
3. However, pending suit, the respondents attempted to put up construction in the property belonging to the petitioner. The petitioner made a complaint to the police. However, the police advised the petitioner to seek relief in the pending suit. Therefore, the petitioner filed I.A.No.637 of 2012 seeking amendment of the plaint.
4. The above said interlocutory application was resisted by the third respondent and the learned District Munsif, after hearing the parties, dismissed the application holding that the prayer gives rise to a new cause of action.
5. Assailing the said order, the present civil revision petition is filed.
6. It is the contention of the learned counsel for the petitioner that pending suit the respondents have started construction in the basement put up by the petitioner and the said vital factor was not considered by the Court below and the finding of the Court below that the amendment gives rise to a new cause of action is erroneous.
7. He further contended that the prayer in the suit itself was for declaration and injunction restraining the respondents from putting up construction in the basement put up by the petitioner and when the respondents actually started putting up construction in the suit property in which the petitioner had put up basement, the petitioner had filed application for amendment seeking recovery of possession and, therefore, there is no new cause of action arising as held by the Court below.
8. Per contra, the learned counsel appearing on behalf of the respondents reiterated the reasons that weighed with the Court below and prayed for dismissal of this civil revision petition.
9. I heard Mr.V.Bhiman, learned counsel for the petitioner and notice sent to the respondent was not properly served and hence the learned counsel who appeared for the respondent in the Lower Court was served and Acknowledgement Card was produced. No one was appeared and perused the documents available on record.
10. In the counter filed by the third respondent, it has been stated that one year before filing of the suit the respondents have put up construction in suit schedule item No.2 and was enjoying the same. According to the petitioner, pending suit, the respondents have put up construction in the basement put by the petitioner.
11. On a perusal of the pleadings, it is seen that both the petitioner and the respondents are claiming right over the suit properties, particularly, suit schedule item No.2. Though the respondents contended that before filing of the suit, they have put up construction, nothing has been produced by the respondents to prove the same.
12. According to the petitioner, pending suit, the defendants have forcibly entered into the property and put up construction, which necessitated the petitioner to seek recovery of possession. At this stage, the Court cannot decide whether the alleged construction said to have been put up by the respondents was prior to the suit or pending suit and the same would be decided at the time of trial.
13. Order 6, Rule 17 of C.P.C. reads as under:
Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
14. Catena of decisions would say that Court permit amendment of the pleadings even after the commencement of trial, if it will not prejudice the rights of the defendants and the relief sought is not barred by limitation.
15. In Surender Kumar Sharma V. Makhan Singh, reported in (2009) 10 SCC 626, the Hon'ble Supreme Court had an occasion to consider belated plea for amending the plaint and whether prayer for amendment of plaint allowed will change the nature and character of the suit. In so far as, belated prayer for amendment is concerned, the Hon'ble Supreme Court has held under:
As noted herein earlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e., the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment.
16. Pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof. Generally, it can be assumed that the defendant is not prejudiced because he will have full opportunity of meeting the case of the plaintiff as amended. The question of prejudice to the opposite party may arise and that shall have to be answered by reference to the facts and circumstances of each individual case. No strait-jacket formula can be laid down.
17. In the case on hand, the proposed amendment of plaint is based on alleged subsequent event which took place during pendency of the suit and the same would not alter the nature and character of the suit. Since the suit is for declaration, it is the bounden duty of the parties to the suit to establish their title by way of documentary evidence and based on the same only, the Court would decide the suit. Therefore, in the interest of justice, the amendment has to be allowed. In addition to it, the suit is at initial stage and trial had not commenced when amendment application was moved. On this score also, amendment of plaint has to be allowed, because law of amendment of pleadings is liberal. Liberty is given to the defendants to file additional written statement.
18. In the result, the civil revision petition is allowed and the Court below is directed the carry out the amendment as prayed for in I.A.No.637 of 2012 forthwith and dispose of the suit expeditiously, in any event within a period of two months from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petition is closed.
21.02.2017 Note:Issue order copy on 26.09.2018 vs Index : Yes To The Principal District Munsif, Kallakurichi.
M.V.MURALIDARAN, J.
vs C.R.P.(PD) No.4715 of 2012 and M.P.No.1 of 2012 21.02.2017