This Civil Revision Petition has been filed by the petitioner against the order dated 06.09.2013 passed in I.A.No.833 of 2013 in O.S.No.202 of 2010 on the file of the learned Principal District Munsif Court, Kallakurichi.
2. The petitioner is the plaintiff and the respondents are defendants in the suit. The petitioner has filed the suit for permanent injunction restraining the respondents, their men and agents from in manner entering into the suit property and for costs.
3. Pending suit, the petitioner has filed I.A.No.883 of 2013 under Order 6, Rule 17 of C.P.C. to amend the prayer seeking declaration that the suit property belongs to him and for mandatory injunction directing the respondents to remove the portion encroached by them.
4. In the affidavit filed in support of the petition, the petitioner averred that pending suit, the respondents entered into the suit property and put up a house with brick wall. Therefore, the plaint prayer has to be suitably amended.
5. Resisting the petition, the respondents have filed counter stating that there is no mention in the affidavit when the respondents entered into the suit property and put up construction and on the sole ground, the plaint cannot be permitted to be amended. It is stated that the petitioner never enjoyed the suit property and there was no necessity on the part of the respondents from interfering with the suit property. The respondents and their predecessors were in title over the suit property for the past 60 years and also acquired adverse possession. In fact, the respondents have removed the existing hut in the suit property and constructed a terraced house and also living with their families. If the amendment is permitted, the nature and character of the suit would be changed and therefore, prayed for dismissal of the petition.
6. Upon consideration of the rival submissions, the trial Court dismissed the petition. Aggrieved by the same, the petitioner has filed the present Civil Revision Petition.
7. Assailing the impugned order, the learned counsel for the petitioner submitted that taking advantage of non-granting of interim injunction by the trial Court, the respondents have entered into the suit property and constructed a house thereon. He would submit that amendment of pleading under Order 6, Rule 17 of CPC is necessary to adjudicate the issue before the trial Court. Since pucca building had been constructed by the respondents pending suit, the amendment is just and necessary and the trial Court erred in dismissing the petition. In support, the learned counsel relied upon the decision in Ragu Thilak D.John v. S.Rayappan and others, reported in (2001) 2 SCC 472.
8. Reiterating the findings of the trial Court, the learned counsel for the respondents contended that the petitioner has not specifically stated when the respondents have entered upon the suit property and put up construction. Assuming that the respondents have put up construction subsequent to the filing of the suit, the same would amount to fresh cause of action and in the existing suit, the petitioner cannot seek amendment of the plaint prayers. He would submit that the trial Court after analysing legal position rightly dismissed the petition.
9. I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.
10. The point that arises for consideration is whether the trial Court was right in dismissing the petition filed by the petitioner under Order 6, Rule 17 of CPC.
11. According to the petitioner, pending suit, the respondents have entered upon the suit property and put up a pucca building. On the contrary, it is the say of the respondents that during 2009, the respondents had demolished the tiled house and constructed a terraced house. In fact, the respondents and their predecessors were in enjoyment of the suit property for the past 60 years and acquired adverse possession by prescriptive title.
12. On a perusal of the counter, the respondents stated that during the year 2009, they have demolished the hut put up on the suit property and constructed a terraced house. There were contradictions in the written statement as well as the counter in respect of the structure which was existing before putting up pucca construction in the suit property.
13. Moreover, whether the respondents had put up construction by entering upon the suit property or they have put up pucca construction during 2009 as alleged by them are all matter of evidence. Admittedly, in the present case, the trial has not begun.
Therefore, at this stage, if the amendment is allowed permitting the petitioner to amend the prayer, no prejudice would be caused to the respondents.
14. Order 6, Rule 17 of C.P.C. provides 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.”
15. In the present case, the respondents claimed adverse possession by prescriptive title. The petitioner also sought declaration to declare that the suit property belongs to him by way of amending the prayer. Therefore, pleadings of both parties reveal that there exist title dispute between them in respect of the suit property.
16. The learned counsel for the respondents contended that the prayer of the petitioner is barred by limitation and therefore, the same cannot allowed.
17. In B.K.Narayana Pillai v. Parameswaran Pillai, reported in (2000) 1 SCC 712, the Hon'ble Supreme Court held:
“3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadigns in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper technical approach. Liberal approach should be the genral rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation.”
18. In Ragu Thilak D.John v. S.Rayappan and others, supra, after referring to the decision in B.K.Narayana Pillai v. Parameswaran Pillai, reported in (2000) 1 SCC 712, the Hon'ble Supreme Court held:
“6. .... The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for.”
19. The decision in Ragu Thilak D.John v. S.Rayappan and others, supra squarely applicable to the case on hand. The plea of limitation can be raised by the respondents after allowing the amendment prayed for. The respondents are also granted liberty to file additional written statement raising the plea of limitation in respect of the prayer for declaration pursuant to the amendment.
20. For the foregoing discussion, this Court is of the view that the trial Court erred in dismissing the petition for amendment filed by the petitioner and therefore, impugned order is liable to be set aside.
21. In the result,
(a) The Civil Revision Petition is allowed by setting aside the order of the learned Principal District Munsif, Kallakurichi dated 06.09.2013 made in I.A.No.883 of 2013 in O.S.No.202 of 2010.
(b) The respondents are granted liberty to file additional written statement, if any, in respect of the prayer for declaration pursuant to the amendment allowed.
(c) The learned Principal District Munsif, Kallakurichi is directed to dispose of the suit within a period of three months from the date of receipt of a copy of this order after completing all formalities in relation to amendment of the plaint.
(d) Both parties are directed to co-operate the trial Court for disposal of the suit within the stipulated time.
(e) No costs. Consequently, connected miscellaneous petition is closed.
17.02.2017 vs Note:Issue order copy on 22.01.2019 Index : Yes To The Principal District Munsif, Kallakurichi.
M.V.MURALIDARAN, J.
vs C.R.P.(PD) No.4739 of 2013 and M.P.No.1 of 2013 17.02.2017