ARUMUGATHAMMAL Vs. LAKSHMIAMMAL

JUDGEMENT

(1.) 1.The revision petitioners are the plaintiffs, who have filed the suit for mandatory injunction and for permanent injunction. 2.The plaintiffs' case, as stated in the plaint, is that the plaint 1st schedule item of the suit property, originally belonged to Poovalingam Asari, who got the same under the registered partition deed dated 3.2.1983. The portion west of the suit property was allotted to Ramasamy Asari, who was the predecessor in tile of the defendants. After the death of Poovalingam Asari, plaint Schedule properties came to the hands of his wife Kanthimathi and after her death, her two daughters, Meenashi and Avudaithangam became entitled to the suit property and they have been in possession and enjoyment of the same. Ramasamy Asari, the husband of the 1st plaintiff and the father of the plaintiffs 2 to 4 is the younger brother of Chockalingam, who is the husband of Avudai Thangam. The parents of Ramasamy Asari died long ago. Ramasamy Asari was maintained by his brother Chockalingam and Avudai Thangam in the suit property. Avudai Thangam and Chockalingam died without any issues and so Ramasamy Asari continued to live and enjoy the undivided portion of the said property, jointly along with the other sister, Meenashi. Meenashi had two daughters, viz. Ulagammal and Subbammal and as Avudai Thangam had no issues, her half right in the properties went to her sister, Meenashi and after her death, her daughters Ulagammal and Subbammal became entitled to the same. Ulagammal and Subbammal were already married and settled at distant places. Hence, Ramasamy Asari, the predecessor of the plaintiffs was enjoying the suit property. Subsequently, Rajamani alias Subbiah Asari, the brother of the 1st defendant purchased the half share of Subbammal by the registered sale deed dated 14.4.1950 and he made efforts to purchase the other half share of Ulagammal, but he could not succeed. But, Ulagammal sold her share to Ramasamy and even prior to the sale, Ramasamy Asari was enjoying the said property as the owner. As Rajamani could not purchase the entire property, he was very much vexed and did not occupy nor claimed possession of the other half shares purchased by him and in the said context, Ramasamy Asari alone continued to be in possession and enjoyment of the entire property as its absolute owner. After the death of Ramasamy Asari, the plaintiffs have inherited the same as his heirs and thus, they have been in possession and enjoyment of the suit property and they have perfected title to the said property by prescription also. Rajamani Asari, who had purchased the half share, was ousted from the suit property and he never enjoyed the property or made any claim at any time. It is stated that the defendants have no right over the suit property, but, attempted to encroach the western portion of the Schedule mentioned property by putting up a new construction and the plaintiffs have filed a suit in OS.No.604/1980 for declaration and injunction before the District Munsif Court, Tirunelveli and the same was transferred to the Sub Court at Tirunelveli in OS.No.305/1982 and the said suit was decreed. 3.After the disposal of the above said suit, the defendants 1 and 3 to 5, by suppressing the earlier suit, filed a suit in OS.No.80/1991 without adding the 2nd defendant as the party, for declaration and injunction and the said suit was dismissed on 1.12.1995. But, however, the defendants have encroached in 'ABFG' portion of the suit property. The 2nd Schedule of property is the common pathway of the plaintiffs and the defendants and the same is meant for using as a pathway only and not for any other purpose and the same is shown as 'AHID' in the plaint plan. The defendants have encroached in the said pathway and also put up a drain and thereby obstructed free flow of water. In the said circumstances, the plaintiffs have filed the suit for removing the said encroachment and also to prevent the defendants from interfering with the possession and enjoyment of the suit property. 4.The plaintiffs' suit came to be dismissed on 12.1.2001 and as against the same, the plaintiffs have preferred an appeal in AS.No.74/2001. on the file of the II Additional Sub Judge, Tirunelveli. During the pendency of the appeal, the plaintiffs have filed an application for amendment of the plaint. In the affidavit filed in support of the said petition, the plaintiffs have stated that the defendants have not made any defence that the suit filed by the plaintiffs is barred by time. But, however, the trial court had considered the fact, which was not set forth in the written statement with regard to the limitation and dismissed the suit on the ground that the suit is barred by time and the same is not proper. But, however, on Issue (1), the trial court decreed the suit, holding that the plaintiffs are entitled to the suit property. Having held so, the suit was dismissed. Only in the said circumstances, the plaintiffs were advised to file an application for amendment seeking for recovery of possession of the property from the defendants. 5.The application filed by the plaintiffs to amend the plaint before the trial court came to be dismissed. Aggrieved by the same, the plaintiffs have preferred this civil revision petition. 6.The respondents have been served and none represents them and they were also called absent and set exparte. Heard the learned Advocate for the revision petitioners. 7.The question arises in this civil revision petition is, 'Whether an application to amend the plaint before the appellate court is maintainable'" 8.The learned Advocate for the revision petitioner would submit that the trial court having given a finding in favour of the plaintiffs in respect of the Issue No.(1) that the plaintiffs are entitled to the suit property, had observed that the suit filed by the plaintiffs is barred by time and dismissed the suit on that ground and the said plea was not at all raised by the defendants in the written statement. It is also submitted that the defendants have already encroached a portion of the suit property and therefore, the plaintiffs have to recover possession from the defendants in respect of the said property and by mistake or inadvertence, they have not made such a prayer before the trial court and only before the lower appellate court the plaintiffs have been advised to make such a prayer and thereafter only, the plaintiffs have filed the application for amendment. 9.Order 6 Rule 17 CPC provides for 'Amendment of the Pleadings' which states, "The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining real questions in controversy between the parties". 10.The word 'The court may at any stage' is a discretionary power given to the court to allow an application for amendment. But, when the court comes to the conclusion that such amendments are necessary for the purpose of determining the real question in controversy between the parties, it shall allow the amendment. Further, the word 'proceedings' used in Rule 17 has got to be considered with reference to the context in which it has been used. There is nothing in the section to show that at any stage of the proceedings, it does not relate to the appeal, which may arise out of the suit. In fact, now it is well settled law that an appeal is a continuation of the suit. Whenever an appeal lies against any decree, the appeal is filed in accordance with law and the finality of the decree of the trial court comes to an end and therefore, it is clear that an application for amendment could be filed even before the appellate court. 11.In K.Karuppanna Mudaliar Vs. Kuttianna Mudaliar (1975-II-MLJ-152) (P.R.Gokulakrishnan, J, (as he then was)) has held "A Court cannot shirk its duties because by amendment the pleadings have to be amended and fresh evidence has to be let in. The predominant interest of the Court should be to render justice and allow amendments for such purposes in order to determine the real question in controversy between the parties." 12.In Ishwardas Vs. The State of Madhya Pradesh and others (AIR-1979-SC-551), it was held, "There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances, which will be taken into consideration before an amendment is granted, is the delay in making the application seeking such amendment and if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court." 13.In Lakhi Ram (dead) through LRs Vs. Trikha Ram and others (1998-I-CTC-725), the Supreme Court had stretched its hand to the extent, that even in the specific performance suit, if the pleadings are wanted, it could be supplemented by the amendment. In the said case, the suit was filed for specific performance of the contract and the essential ingredient in a specific performance of the suit is that the plaintiff is always ready and willing to perform his part of the contract and the said plea was not available originally in the plaint. An application to amend the plaint was moved before the appellate court to incorporate the averment regarding readiness and willingness and it was held that such an amendment is permissible and the said amendment can be allowed by the appellate court inasmuch as the amendment does not change the cause of action. The Supreme Court observed in paragraph 7, "Having considered these rival contentions in our view, the appeal could be disposed of on the first point canvassed by the learned counsel for the appellant,namely, that amendment inserting the relevant averments under Section 16(c) of the Specific Relief Act does not change the cause of action and would be a legally permissible exercise as laid down by this Court in Gajanan Jaikishan Vs. Prabhakar Mohanlal Kalwar (1990-1-SCC-166). 14.In the instant case, the plaintiffs have contended that the defendants have encroached upon a portion of the property and they should have prayed for recovery of possession and the author of the plaint by inadvertence or mistake or oversight has not made such a prayer and as there is no such a prayer, injustice could not be caused to the party, who is approaching the court. By allowing the amendment for recovery of possession, would not take away the right of the opposite party, viz. the defendants. The defendants would be given an opportunity to file an additional written statement and also to let in evidence, with regard to that aspect of the case also. In the said view of the matter, I do not consider the order passed by the lower appellate court is proper. 15.For the reasons stated above, the civil revision petition is allowed and the amendment sought for by the plaintiff before the appellate court is allowed. As the amendment sought is for possession and it is almost a consequential relief, the lower appellate court is hereby directed to retain the appeal on its file and after giving opportunity to the defendant to file additional written statement, to frame additional issues and grant opportunities to both the parties to adduce further evidence with regard to the additional issues framed by the court and record the same and dispose of the appeal in accordance with law.