GOBI PILLAI Vs. SWAMY

JUDGEMENT

(1.) THE plaintiff is the petitioner, who filed I. A. No. 605 of 1979 in O.S. No. 477 of 1978 on the file of the Sub-Court. Tirunelveli, under Order 6, rule 17 and section 151, Civil Procedure Code, for amending the plaint with a view to make the prayer for recovery of possession in the alternative. He filed a suit for a permanent injunction restraining the defendant and his men from interfering with his possession and for costs. In the plaint, he claimed that the suit property belonged to his father and that the plaintiff was his only son and in turn defendant is his only son. On 18th April, 1959, there was a registered partition deed between the plaintiff and the defendant and as per the partition deed, the plaintiff is entitled, during his life time, to be in possession of the property, and thereafter the defendant is to have the property absolutely. Defendant was living with his family in Shenoy Nagar, Madurai and after completing his medical studies, in 1968, he came to Tirunelveli to set up his private practice and he was residing at door No. 178, in the same street in which the suit property bearing door No. 177 is situate. Mainly because the defendant had started to interfere with the possession of the suit property by the plaintiff, the present suit had been laid.

(2.) THIS claim was refuted in the written statement by stating that pursuant to the partition deed, both door numbers 177 and 178, Vallam Thangi Pillaiyar Koil Street, Tirunelveli Town had been in exclusive possession of the defendant, and the allegation of threatened interference of the possession of the plaintiff is a patent falsehood. Even in 1968, defendant had come over to Tirunelveli and set up his clinic on 4th February, 1968 at South Car Street, Tirunelvel Town and he has been residing in the suit property and also in the adjoining door number 178 since that date, and the present suit is filed because of the wayward life of the plaintiff which was objected to by the defendant, and the plaintiff was never in possession of the property for the last eighteen years, and in any event, not after defendant came to Tirunelveli for setting up practice in 1968.

(3.) MR. Krishnamurthy, learned counsel for the petitioner contends that when the amendment sought for, is only for the alternative relief of possession, which is not a new case, and when the plaintiff is not bent upon protracting! the proceedings, even though amendment is sought for after evidence is recorded in the light of the several decisions of the Supreme Court, an amendment which would avoid multiplicity of proceedings, should not be rejected by a trial Court. He also states that the plaintiff is not for any new issue to be framed or for additional evidence recorded or for reopening the case, and what is now required is only the alternative case being set up without even asking for the cause of action to be changed.