D GOPAL Vs. KILPAUK MUSLIMS WELFARE ASSOCIATION

JUDGEMENT

(1.) AGGRIEVED by the dismissal of I. . A. No. 20826 of 1991 for amendment of the plaint in O. S. No. 5799 of 1986 on the file of VIII Assistant City civil Judge, Madras , the plaintiff has preferred this civil revision petition.

(2.) THE suit was originally for a permanent injunction to restrain the 1st defendant from interfering with the plaintiff's possession of the suit property. THE suit property is a land of an extent of 55 x 13 1/2 and building thereon at New Door No. 72, Medavakkam Tank Road , Kilpauk, Madras . In the abovesaid application, on the ground that on 24. 9. 1986 the 1st defendant trespassed into the suit property and forcibly removed the superstructure and threw away all the belongings of the plaintiff and on the ground that the 1st defendant has denied the title of the plaintiff to the suit property, the plaintiff sought for amendment of the plaint, seeking a declaration that the plaintiff is the sole and absolute owner of the suit property and to direct the 1st defendant to put the plaintiff in possession of the said property. THE court below has dismissed the said application on the ground that it is very much belated since the suit has been filed on 4. 8. 1986 and the application was filed only in 1991.

(3.) COMING back to the proposed amendment relating to possession relief the settled law is that in an injunction suit if the allegation is that the defendant has trespassed into the property, pending suit and taken possession of the property, the court could very well mould the relief and grant the relief of possession even without amendment of the plaint. While so, there can be no bar for granting the proposed amendment seeking the possession relief based on the alleged possessory title of the plaintiff. In view of the abovesaid settled law, I think that order of the court below suffers from material irregularity in the exercise of jurisdiction. Sec. 115 of the Code of Civil Procedure empowers this Court to revise such orders. A. Haleem v. M. S. Tajudeen, (1993)1 L. W. 502 will have no application to the present case. I am also unable to accept the contention of learned counsel for the 1st respondent that prejudice would be caused to the 1st defendant if the proposed amendment is allowed with reference to possession relief. If really the illegal trespass pending suit is true, then the 1st defendant cannot advance this argument of prejudice. But the question whether there was illegal trespass or not has to be gone into only at the time of the trial of the suit. So, there can be no bar for allowing the abovesaid amendment relating to possession relief alone. Simply on the ground of delay, the amendment relating to possession relief cannot be refused particularly when it is found that as early as 1987 the plaintiff has taken criminal action for the alleged trespass.