VALLIAMMAL Vs. PERIASAMY THEVAR

JUDGEMENT

(1.) THERE is no justification for the lower Court to dismiss the application for amendment in this case. The plaintiff filed the suit for declaration of title and injunction. The plaintiff's claim was that he was in possession. The defendant contested the same. In I.A.No.298 of 1984 filed by the plaintiff for an interim injunction till the disposal of the suit the Court expressed the opinion that the plaintiff was not in possession and dismissed the application. The plaintiff filed the application for amendment of the plaint in I.A.No.l3i of 1989 stating specifically that in the view taken by the Court it has become necessary for him to pray for possession as ultimately if his title is upheld, he would be prejudiced if consequential relief is not granted to him. This application was opposed by defendant and the Court below has taken the view that the plaintiff having taken a definite stand in the original plaint is not entitled to amend the plaint.

(2.) THE Court below has placed reliance on the judgment of Sathiadev, J., in Gobi Pilled v. Dr. Swamy (1980) 1 M.L.J. 387. THE fact of the reported case are different and the judgment of the learned Judge does not apply to this case at all. THEre, the amendment was sought only after the evidence in case had concluded. Even then, the plaintiff had continued his assertion that he was in possession, but, he prayed for an alternative relief as a matter of caution. In those circumstances, the Court held that he was not entitled to get an amendment as prayed for. That decision will not apply to the f of this case.