A RADHAKRISHNAN Vs. AUVADAI AMMAL

JUDGEMENT

(1.) THE civil revision petition is taken up today for final disposal by consent of parties. This revision is fried against the order made in an application for amendment of plaint in IA. No. 19921 of 1991 in O. S. No. 9306 of 1989 on the file of the learned XVII Assistant City Civil Judge, Madras , dismissing the application filed under O. 6. Rule 17 and Sec. 151, C. P. C. THE original plaint is for a permanent injunction restraining the defendants, their agents, servants and men or every one claiming under them or acting on their behalf from in any way interfering with the plaintiff' s peaceful possession and enjoyment of the suit properties, more fully described in the Schedules A,b and C in the plaint and for costs. In this application for amendment the plaintiff seeks to introduce certain facts which are detailed by him in his application and the plaintiff also seeks to introduce two new prayers ( i ) for a declaration that the plaintiff is the absolute owner of the suit property more fully described in the schedule A, b and C, and (ii) for a direction to the defendants to deliver vacant possession of the plaint, A, B and C Schedule properties to the plaintiff within the time to be fixed by the trial court failing which to direct the office, of the trial court to put the plaintiff in vacant possession of the abovesai d schedule properties. THE second prayer for delivery of vacant possession is an alternative one. THE alternative prayer has been taken up by the plaintiff possibly on the ground that the defendants have stated in the written statement that they are in possession of the suit properties. THE trial court dismissed the application for amendment on the ground that the proposed amendment will change the nature of the suit.

(2.) IN this revision Mr. T. V. Ramanujam , learned counsel for the petitioner contended that the proposed two prayers are only in the nature of additional reliefs on the pleadings already made in the plaint. IN the original plaint, there is a pleading that the plaintiff is the owner of the suit properties. IN para 6 of the plaint, the plaintiff has stated that he is in lawful possession and enjoyment of the suit properties as full owner thereof and he is exercising all the acts of ownership. Further, the plaintiff has stated that he has got patta in his name and that in pursuance of the sanctioned plan granted by the Corporation of Madras, he has put up construction in the suit properties in his capacity as full owner thereof. IN the cause of action paragraph, the plaintiff has stated that he had purchased the suit properties on 17. 7. 1985 and that he has been put in possession thereof in pursuance of the sale deed and from which date the plaintiff has been exercising all acts of ownership over the suit properties. IN paragraph 8 of the plaint, the plaintiff has stated that/or the past one week, the defendants are making attempts to trespass upon the suit properties with the help of rowdy elements and that the plaintiff has protested against the same. Therefore, Mr. T. V. Ramanujam , learned counsel for the petitioner argued that there is no charge of cause of action nor any new suit has been introduced by way of this amendment. According to him, the order of the lower court refusing amendment is illegal. IN support of his contention, he relied upon the judgment reported in Narayanan Chet- tiar v. Rathinasabapathy Ayyar and others, 29 M. L. J. 464 (D. B. ). The Division Bench has observed as follows: "where the plaint as originally presented asked merely for a declaration that a decree obtained by the plaintiff against the defendants' father was binding on them but subsequently a prayer was allowed to be added by way of amendment of the plaint seeking for a direction to the defendants to pay the amount of the decree. " While narrating the facts of the case, the Division Bench stated as follows: "on 21. 8. 1901, the plaintiff obtained a decree on a promissory note against defendants' ; father in o. S. No. 295 of 1901. During the pendency of the execution proceedings defendant's father died. Plaintiff sought to execute the decree against the defendants but was unable to realise the amount from them. On 7. 8. 1907 plaintiff instituted the ,suit which is the subject of the present second appeal. The suit as originally framed was for a declaration that the decree in O. S. No. 295 of 1901 was binding on the defendants and that they were liable to pay the decree debt to the extent of the ancestral property in their possession. The defendants contended inter ali a that the plaintiff should have asked for further relief in the suit viz. , the recovery of the decree amount from the defendants. On 24. 2. 1908 the plaintiff applied for leave to amend the plaint and the district Munsif passed an order allowing the amendment. The plaint was accordingly amended and a prayer for the recovery of the decree amount from the defendants was inserted on 15. 7. 1908. The District judge on appeal, held that, though the suit was instituted within 6 years from the decree in O. S. No. 295 of 1901, the amendment asked for a new and distinct relief, viz. , the recovery of the decree amount from the family property of the defendants and that to allow the amendment after the period of limitation would be to deprive the defendants of a defence open to them at law, consequently he refused to allow the amendment and dismissed the plaintiffs suit. Against this, the plaintiff preferred a second appeal to the high Court.' ; '. . . . . The lower courts have held that the suit was barred because at the date of the amendment the decree was more than 6 years old and a suit such as the present suit came after the amendment, would have been barred, had it been instituted at the date of the amendment. IN our opinion the lower courts have misunderstood the law applicable to the facts before them. The plaintiff did not seek to plead any new facts when he applied for leave to amend the plaint. All he desired to do was to be allowed to ask for a fresh relief on the facts already pleaded.' ;

(3.) MR. D. Nellaiappan , learned counsel for the respondent relied upon the judgment reported in'seeni Nadar and three others v. Thangamuthu and two others, (1990) T. N. L. J. 335, wherein Srini-vasan , J. has held that a party shall not be allowed to set up a new case or new cause of action in between original plaint and the amendment sought for. The learned Judge has therefore upheld the order of the lower court refusing amendment. In that case, the suit was filed by the petitioners for bare injunction in the plaint and it was stated that the petitioners had purchased the properties on 6. 8. 1985 and since then they were in exclusive possession thereof. Apart from the allegation that the first defendant with a view to grab the suit properties along with the second defendant attempted to encroach the suit properties and cut the trees standing thereon from 17. 5. 1986, no other details were mentioned. The prayer in the suit was only for grant of injunction on the footing that the parties were in possession.