Anim-adverting upon the order dated 22.4.2008 passed in I.A.No.859 of 2007 in O.S.No.415 of 2005 by the Principal Sub Court, Erode, this civil revision petition is filed.
2. A 'resume' of facts, which are absolutely necessary and germane for the disposal of the civil revision petition, could be portrayed thus:
The revision petitioners/plaintiffs filed the suit O.S.No.415 of 2005 seeking the following reliefs:
a) to declare that the plaintiffs are entitled to use the suit cart track which runs in R.S.No.129 of Nanjai Kilambadi Village to reach their land situate on the east in R.S.No.91 and 91/1
b) to grant a consequential injunction restraining the defendants and their men, agents and officials from obstructing the plaintiffs from using the suit cart track or interfering any manner with the peaceful user of the same by them;
c) to direct the defendants to remove the projections made by them in the portico of the Kalyana Mandapam within a stipulated time fixed by this Honourable Court and in case they failed to do so, an officer of this Honourable Court may be appointed to carry out the same at the cost of the defendants.
d) to direct the defendants to pay the cost of the suit to the plaintiffs.
Even before the respondents 4 to 6/defendants entering appearance in the suit, the petitioners/plaintiffs got appointed an ex-parte Commission and got the physical features of the suit property noted by the said Commissioner. After the respondents/defendants entered appearance, they filed I.A.No.140 of 2006 seeking appointment of an Advocate Commissioner to visit the suit property and measure the same with the help of a qualified surveyor. The actual prayer in the said I.A. is extracted hereunder:-
"5. . . . . Hence, this Honourable Court made a direction to the Commissioner to take measurements with regarding the old S.F.No.191 and R.S.No.129 of Nanjai Kilambadi Village with a qualified surveyor with reference to the old and resurveys FMB and filed a report in totally, if this Honourable Court incline to allow the petition for re-issue the Commissioner warrant to the same commissioner. The Commissioner with qualified surveyor who measured the properties and file a detailed report with regarding the suit property and the temple properties, it conclusively determines the fact in issue. Hence, in the present petition an order has been made by this Honourable Court to measure the suit properties and the temple properties in Old S.F.NO.191 and R.S.No.129 of Nanjai Kilambadi Village with the qualified surveyor and file a report with plan before this Honourable Court. Otherwise, the present petition will not serve any purpose to solve the fact. Hence, this petition has to be dismissed".
It appears, the lower Court also ordered that petition, appointing Commissioner. However, respondents 4 to 6/defendants did not press the said petition itself with liberty to file a fresh application at a later point of time. But, the petitioners/plaintiffs thought it fit to file one another application I.A.No.859 of 2007 with the following prayer:
"4. It is therefore just and necessary that this Honourable Court may be pleased to reissue the Commissioner warrant to the same Commissioner to fix the 'F' line between the suit property, temple property, my property and the 4th petitioner's property with a qualified surveyor and file a report with plan and render justice."
Whereupon the lower Court dismissed the said petition. Being dissatisfied with and aggrieved by the order, this revision is focussed on various grounds.
3. The learned counsel for the revision petitioners/plaintiffs would develop his argument based on the grounds of revision to the effect that even though the petitioners/plaintiffs got appointed an ex-parte Commission to visit the suit properties and note down the physical features, at that time, the suit properties were not got measured with the help of a qualified surveyor; during the pendency of the suit, the respondents/defendants raised construction obstructing the suit cart track and hence, I.A.No.859 of 2007 was filed, but it was unjustifiably dismissed.
5. The learned counsel for the respondents/defendants would submit that the trial Court correctly dismissed the I.A for the reason that the petitioners/plaintiffs have not approached the Court with clear facts detailing and delineating the suit properties; the vague description about some cart track would not in any way enable the Commissioner to locate such alleged cart track, which according to respondents 4 to 6/defendants is non-est; the Commissioner, as requested by the petitioners/plaintiffs cannot be asked to demarcate the 'F' line.
6. In this factual matrix, I am of the considered opinion that the prayer for revisit by the earlier Commissioner, at the instance of the petitioners/plaintiffs, cannot ex facie and prima facie be dismissed as untenable. As per the earlier ex-parte Commission order, the Commissioner noted the physical features and submitted the plan also along with his report; now the petitioners/plaintiffs want to get located the cart track as well as the constructions effected by the respondents/defendants with the help of a surveyor, after measuring the relevant areas. As has been correctly pointed out by the learned counsel for the respondents/defendants, the Commissioner cannot be asked to demarcate the alleged 'F' line as prayed for in the petition filed by the petitioners/plaintiffs. But what the trial Court could have ordered was only that the Commissioner should visit the suit property and measure it purely for the purpose of enlightening more, the physical features, including the location of the buildings. Whereupon it is for the Court to compare those details with the plaint averments as well as the plaint plan and arrive at a conclusion.
7. In this factual matrix of the case, I am of the view that the revision could be ordered as under:
The order passed by the lower Court is set aside with a direction to the lower Court to issue a warrant of Commission on the following lines:
"The same Commissioner shall revisit the suit property with the help of a surveyor and measure the same and note down the physical features with reference to the plaint averments as well as the plaint plan and the survey records and submit his report. The Commissioner, before carrying out the mission, shall issue notice to both sides.
No costs. Consequently, connected miscellaneous petition is closed.
The petitioners/defendants filed the written statement. When the trial was proceeding on the petitioners/defendants' side, the respondent/plaintiff has chosen to file I.A.No.433 of 2008 seeking the following amendments:
"5. . . . vdJ tHf;Fiuapd; brhj;J tpguj;jpy; rh;nt vz;/218-7 y; 0.08 brd;l; vd;W ,Ug;gij giHa rh;nt vz;/217 ,jw;F g[jpa rh;nt 497-8 vd;W jpUj;jk; bra;a ntz;oaJ mtrpaKk;. EpahaKkha; ,Uf;fpwJ/ ,e;j tHf;F 01/07/2002 f;F Kd;g[ jhf;fy; bra;ag;gl;lJ/ vdnt rl;lg;go jil vJt[k; ,y;iy/ rh;nt vz; khWtjhy; brhj;J khwtpy;iy/ g[jpa tHf;Fk; my;y/ vdnw nkw;go rh;nt bek;giu jpUj;JtJ vd;gJ ePjpapd;ghw;gl;ljhFk;/ nkw;go rh;nt vz;iz jpUj;jk; bra;gjhy; ahUf;Fk; ve;jtpjkha ,Hg;g[k; fpilahJ/ nkw;go rh;nt vz; jl;lr;R gpiHahy; Vw;gl;litahFk;/ ,J kd;dpf;ff;Toa rpW gpiHahFk;/@ The trial Court allowed the said I.A. Being dissatisfied with and aggrieved by the said order, this revision petition is focussed on various grounds.
3. The learned counsel for the revision petitioners/defendants would develop his argument to the effect that this is not a simple case of changing the survey number from 218 to 217 due to typographical error, but it is a case of changing the entire cause of action; the entire defence was based on the said survey number only already existing in the plaint schedule.
4. Whereas the learned counsel for the respondent/plaintiff would develop his argument that he is yet to verify as to whether the patta in favour of the respondent/plaintiff's predecessors was 218/7 or 217.
5. In my considered opinion such a doubt could not arise at this stage for the reason that P.W.1-Murugesan, in his deposition itself clearly stated that the patta in favour of the respondent/plaintiff refers to 218/7. In this factual matrix, I am of the view that it is not a simple case of getting corrected the typographical error. If there is only a clerical mistake or typographical error, the same could be corrected, dehors Order 17 Rule 6 also. However, at this juncture, my mind is reminiscent of the the decision of the Honouraqble Apex Court:
2008(4) TLNJ 588(CIVIL)- VIDYABAI AND OTHERS VS. PADMALATHA AND ANOTHER, certain excerpts from it would run thus:
"7 to 36"
6. A bare perusal of the recent judgement of the Honourable Apex Court would demonstrate and exemplify that after the commencement of the trial, the question of pressing into service Order 17 Rule 6 does not arise at all. As such, applying the said dictum, it is crystal clear that the lower Court, ignoring the mandates contemplated under Order 17 Rule 6, simply allowed it. As such, on that technical ground itself, the order of the lower Court is liable to be set aside.
7. Even on merits of the case, I would like to observe that the averments in the plaint as well as oral evidence adduced so far on the side of the respondent/plaintiff proceeded on the line that the respondent/plaintiff's predecessors in title were in possession and enjoyment of Survey No.218/7. Now at the time of commencement of trial on the petitioners/defendants' side, the respondent/plaintiff seek to introduce a new cause of action virtually that the respondent/plaintiff's predecessors were in possession and enjoyment of Survey No.217, over which, the petitioners/defendants are claiming title and to that effect they filed written statement and also adduced evidence partly. Hence, in such a case, it is quite obvious that allowing of such amendment by the lower Court is totally against law and accordingly, the order dated 21.4.2008 passed in I.A.433 of 2008 is set aside.
8. In the result, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
Msk 12.1.2009 Index:Yes/No Internet:Yes/No. To The Additional District Munsif, Villupuram C.R.P.PD.1876 of 2008 9.1.2009