JAMALUDEEN Vs. MUHAMMED HANEEBA

JUDGEMENT

(1.) THE Plaintiffs, who have filed the suit in O.S. No. 344 of 2004 on the file of II Additional District Munsif Court, Vridachalam, are the revision petitioners herein. THE suit was filed for declaration to declare that the plaintiffs/petitioners herein are the owners of the 'A' schedule property; to grant permanent injunction restraining the defendants/respondents herein from interfering with the 'B' schedule property and for a mandatory injunction directing the defendants/ respondents herein to demolish the superstructure put up by them in the 'C' schedule property. Pending suit, the plaintiffs/revision petitioners herein have filed I.A. No. 1146 of 2009 under Order VI Rule 17 of CPC praying to amend the plaint to include the physical features that exist in the 'C' schedule property, for which mandatory injunction was sought for, especially the three sun shades indicated in the report of the advocate commissioner. THE said application was dismissed by the court below on the ground that the application was filed to protract the proceedings and that the application was not filed at the earliest point of time. Aggrieved by the same, the present revision petition is filed.

(2.) MR. Raghavachari, learned counsel appearing for the petitioners would contend that the Court below failed to consider that the application for amendment was filed to exactly indicate the location of the three 'sun shades' which were unauthorisedly constructed by the defendants/respondents herein in the C Schedule property of the plaint, for which mandatory injunction was sought for in the suit. It is further submitted that even though in the original plaint plan, the location where the 3 sun shades exist were identified, the 'sun shades' were not specifically indicated. The three 'sun shades' were indicated by the advocate commissioner in his report, which are also tallying with the plaint plan. Therefore, the petitioners thought it fit to file the application for amendment to exactly indicate the existence of 'sun shades' in the C Schedule property in order to avoid any difficulty at later point of time. The court below failed to consider that there is no change in the cause of action or there is no material alterations in the pleadings and erroneously dismissed the application for amendment. The court below dismissed the application for amendment solely on the ground that it was belatedly filed, especially after the filing of the advocate commissioner's report and just after the commencement of the trial. According to the learned counsel for the petitioners, the delay is attributable on the part of the first defendants/first respondent herein since the suit was earlier decreed exparte on 01.12.2006 and thereafter, the suit was restored on the basis of an application filed by the first defendant/first respondent herein with a delay of 621 days in filing an application for setting aside the exparte decree. Immediately on restoration of the suit, the application for amendment was filed by the plaintiffs/petitioners herein. If this period is taken into account, definitely, there is no delay on the part of the plaintiffs/petitioners in filing the application for amendment. Therefore, according to the learned counsel for the petitioners, the court below ought not to have dismissed the application for amendment and he prayed for allowing this revision petition.

(3.) THE grievance of the first defendant/first respondent herein is that by filing the application for amendment, the plaintiffs/petitioners herein are attempting to alter the nature and character of the suit, which is impermissible under law. Moreover, there was a delay in filing the present application, which was rightly considered by the court below. I am unable to accept such contention of the counsel for the first defendant/first respondent. First of all, in this case, there cannot be any new cause of action sought to be introduced by the plaintiffs/petitioners. On perusal of the averments in the application for amendment, it is clear that even in the plaint plan, the location where the sun shades exists in the 'C' schedule were clearly mentioned. THE plaintiffs/ petitioners herein have sought for a mandatory injunction in respect of the 'C' schedule property in the suit. However, after the report filed by the advocate commissioner, the plaintiffs/petitioners thought it fit to identify the exact location where the 3 sun shades exist in the 'C' schedule property. THE portion marked as 'X, Y Z' in the report of the advocate commission to indicate the existence of the 3 sun shades also tallies with the plaint plan. Moreover, there is no dispute in respect of the existence of the sun shades in the 'C' schedule property. THErefore, the application filed by the petitioners/plaintiffs for amendment cannot in any way alter the nature and character of the suit besides that such amendment will not in any way put the defendants/respondents to any hardship.