ANGAMMAL Vs. MUTHUPECHIAMMAL

JUDGEMENT

(1.) IT is by now well settled that the invocation of Order 6, Rule 17, C.P. Code, is possible only when the substance of the relief asked for in the original pleading is maintained, though in a different form it is sought to be corrected so as to suit the convenience of the litigant. In a case, however, when the amendment sought for by the plaintiff would alter the very foundation of the aim and the said amendment prima facie is distinct, separate and independent of the original relief asked for, then it would not come within the purview of amendment of pleading at all. On the other hand, it would be a substitution of a relief which is different and not asked for in the original plaint. In the instant case, the respondents as the plaintiffs came forward with an application under Order 6, Rule 17, C. P. Code, under the following circumstances. In the plaint as originally filed the plaintiffs sought for a declaration that they were entitled to an easementary right over a particular portion of the suit house to a particular length. Later, they sought for an amendment by stating that no proper instructions were given to the advocate at the time when the original plaint was drafted and they wanted the relief of mandatory injunction directing the defendant to remove a wall on that portion of the property referred to in the original plaint and for a declaration that they are the owners of the pathway or the suit site. The court below thought that in order to avoid multiplicity of proceedings the amendment sought for by the plaintiffs could be allowed under Order 6, Rule 17, C.P.C. It is as against this, the defendant has come up to this court.

(2.) I have already referred to the basis on which the amendment of pleadings is allowed under Order 6, Rule 17, C.P.C. So long as the distinctiveness and the force of the original relief asked for in the earlier pleadings is maintained and an attempt is made only to make an inroad into the form of the relief asked for, it is permissible to allow an amendment of such pleading, but in cases where, under the guise of an amendment, a distinct and separate prayer is sought to be introduced in the pleading, it would not be an amendment at all, but it would be the setting up of a new cause, not thought of and not even pleaded by the person concerned. The instant case is one in which the plaintiffs are seeking for a totally different relief. Mr. Yamunan, however, would say that in order to avoid multiplicity of proceedings and as no prejudice will be caused to the petitioner before me, the amendment could be allowed. These are not normal tests deployed for considering whether an application for amendment of a pleading has to be allowed. Particularly when a plaint is sought to be amended and when the relief sought for, appears, on the face of it, to be an afterthought and totally distinct from the prayer in the original plaint, then such an application for amendment ought not to be countenanced at all. The case cited by Mr. Yamunan, Palaniswami Naicker v. Chinnasami Naicker, (1968) 81 Mad LW 95 is one where the plaintiff even in the original plaint sought for alternative reliefs and at the appropriate time elected to rest his relief on one of such alternative pleas. The court said that the plaintiff could adopt such an attitude, provided in the pleadings such inconsistent pleas were raised. That is not, however, the case here. The plaintiffs are seeking for a relief not connected with the original prayer at all. They sought for an easement of necessity and a consequential declaration therefor, whereas in the amendment they seek for a declaration that they are the owners of the property and for a consequential relief of mandatory injunction to demolish the wall on the disputed pathway. These are not reliefs which have any semblance, one with the other.