GOMATHI AMMA Vs. MEENAKSHI AMMA

JUDGEMENT

(1.) The short question that arises in this second appeal in whether the appellate court can permit the plaintiff to carry out amendment of the plaint allowed by the Trial Court but the plaintiff had failed to amend the plaint after the order.

(2.) Appellant herein is the plaintiff in O.S. 70/78 before Munsiff's Court, Attingal. The suit was for declaration of title and possession and for an injunction restraining the defendants from entering the plaint schedule property. She claimed to be the owner in possession. Defendants resisted the claim and claimed to be in possession of the property. During the pendency of the suit plaintiff sought amendment of the plaint seeking recovery of possession on the strength of title and mesne profits. That petition I.A. 332/79 was allowed by the court on 18-7-1979. But plaintiff failed to carry out the amendment in the plaint. The Trial Court on a consideration of the evidence adduced on both sides found plaintiff to be not in possession of the property at the time of suit and in consequence the suit was dismissed. The lower appellate court concurred with that decision and dismissed the appeal. During the pendency of the appeal an oral request was made by counsel for appellant to permit plaintiff to carry out the amendment in the plaint. This request was declined by the court. Hence the second appeal.

(3.) The appeal was admitted on the following substantial questions of law formulated in the appeal memorandum.