SYED SHAKIR ULLA Vs. N J ROSY

JUDGEMENT

(1.) This Civil Revision Petition has been filed against the order of the learned V Assistant Judge, City Civil Court, Chennai dated 13.09.2010 made in I.A. No.6023 of 2010 in O.S. No.6441 of 2008, whereby the learned Judge dismissed the amendment petition filed by the petitioner/plaintiff to amend and add necessary prayers in O.S. No.6441 of 2008.

(2.) The suit was for permanent injunction restraining the 8th respondent/8th defendant from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. The petitioner/plaintiff alleged that Respondents/Defendants 1 to 7 sold the suit property to him under a sale deed dated 16.10.2006 registered as document No.2157/2006 at S.R.O., Adyar for a valid sale consideration of Rs.18,00,000/-. Subsequent to purchase, the petitioner/plaintiff incurred a sum of Rs.30,00,000/-towards the construction of the building in the suit property. It is further alleged that only after receiving the notice from the 8th defendant's advocate, the petitioner/plaintiff came to know of the equitable mortgage created by respondents/defendants 1 to 7 with the 8th respondent by depositing the title deeds of the suit property for raising a loan. Respondents/defendants 1 to 7, suppressing the factum of mortgage, sold the suit property to the petitioner/plaintiff. It is further alleged the 4th respondent/4th defendant informed the petitioner/plaintiff that they would settle the entire mortgage loan and redeem the property from the mortgage and collect all original title deeds from the 8th respondent herein. But, even after the completion of examination of the witness on the plaintiff's side, they have not taken any effective steps to discharge the mortgage. Therefore, it is alleged by the petitioner/plaintiff that for the purpose of determining the real questions in controversy in the above suit, the petitioner/plaintiff is seeking amendment of the prayers in the said suit. By way of amendment, the petitioner/plaintiff sought for a declaration to declare him as the bona fide purchaser of the suit property; for a permanent injunction against the 8th respondent from interfering with the peaceful possession and enjoyment of the suit property; and for a decree against defendants 1 to 7 for the relief of mandatory injunction, directing defendants 1 to 7 to pay the entire mortgage money payable to the 8th defendant and redeem the property from mortgage within a stipulated time, failing which to direct the 8th defendant to proceed against the property measuring an extent of 307 sq.ft. situated at Door No.15/1/1, 1st Street, Govindarajapuram, Kottur Village, Adyar, Chennai - 20 which is in possession of defendants 1 to 7, after adjusting the sale proceeds and for the remaining mortgage money, if any, proceed against defendants 1 to 7 individually to realise the same.

(3.) In the counter filed by the respondents 1 to 7, it is stated that the application filed for amendment of the pleadings after the commencement of the trial is not maintainable in law and on facts, and that the application is liable to be rejected in limine inasmuch as the petitioner/plaintiff has commenced his evidence and he was also cross examined extensively by the advocate on the other side, if allowed would cause grave prejudice and irreparable loss to the respondents 1 to 7. It is further alleged that as per the Sale Deed dated 16.10.2006, the suit property is valued as Rs.15,00,000/-and in such circumstances, in the absence of plea for payment for proper additional court fee payable by him, prayers in the suit cannot be altered or amended. It is further alleged that if the proposed amendment is allowed, it would change the complexion of the case and alter the character of the suit. It is also stated that the reliefs sought for by the petitioner/plaintiff by way of amendment ought to have been sought for within 3 years from the date of sale deed viz., 16.10.2006. Therefore, if the amendment petition is allowed, it would be against the existing provisions of law. It is further stated that the provisions of Order 2, Rule 2 of the Code of Civil Procedure are attracted to the case on hand, wherein it is clearly stated that if a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Lastly, it is stated that when the plaintiff has intentionally and deliberately omitted to sue for a particular relief/reliefs at the inception, he having allowed by efflux of time a right to accrue to the opposite party, that right cannot be taken away by bringing an amendment, which would defeat the very right which is available to the contesting opposite party.