B MAHALAKSHMI Vs. D V NAGALAKSHMI AMMAL

JUDGEMENT

(1.) THE above revision has been filed against the order of the learned Subordinate Judge Kumbakonam, dated 30.8.1995 in LA. No.153 of 1994 in O.S. No.68 of 1984, whereunder the learned Subordinate Judge has chosen to reject the application filed underO.6, Rule 17 read with Sec.l51 of the Code of Civil Procedure to amend the plaint so as to introduce paragraph 7(a) to the plaint stating about the subsequent developments and events subsequent to the dismissal of the suit and said to have accrued during the pendency of the appeal regarding the alleged demolition of the stair case and introducing a claim for the relief of mandatory injunction, as also amending the valuation portion of the plaint so as to include the additional claim and relief sought for. This has been opposed by the respondents by filing a counter-affidavit contending among other things that the claims made involve even addition of a new party to the suit, that the amendment if allowed, the issues in the appeal cannot be adjudicated on the evidence already on record and the object of the proposed amendments was only to get over the hurdle in successfully dislodging the judgment and decree of the trial court. THE learned Judge in the court below has considered the respective contentions and claims of parties and after adverting to some of the decisions relied upon by both the learned counsel appearing on either side, has chosen to reject the application on the ground that the amendments sought for, if allowed will introduce a new cause of action which would prejudice the other side and it would amount to permitting a totally inconsistent plea at the state of appeal. Aggrieved, the above revision petition has been filed.

(2.) MR.Ananthakrishnan, learned counsel appearing for the petitioner vehimently contended that the appeal being a continuation of the suit, the court below ought to have allowed the application for amendment and the rejection of the same amounts to failure to exercise jurisdiction vested with the-court. The learned counsel in order to justify the claim that the amendments of the nature can be allowed even at the appellate stage relied upon some of the judicial pronouncements. In Nair Service Society Limited v. K.G.Alexander, A.I.R. 1968S.C. 1165:1968 K.LT. 182:1968 Ker.L.J. 175:1968 S.C.D. 500, which is a decision rendered by the Apex Court, it was held as hereunder:

(3.) AS noticed by the court below and as objected to by the respondents, the very cause of action for the amendment was some occurrence which was alleged to have occurred subsequent to the dismissal of the suit and during the pendency of the appeal. The facts in support of the amendment also are not matters on record, but are disputed and controvertial questions of fact seeking for a totally different relief. The suit also originally filed was not for any declaratory relief and consequential injunction so that it could be said that what was sought for by amendment was only an alternative mode of relief or amended form relief on account of subsequent developments. The amendment, if allowed would in my view render the appeal incapable of being adjudicated on the evidence on record without any fresh trial on the controvertial and conflicting claims introduced at the appellate stage. The amendments sought to be introduced are not such as would merely go to help the court to do effective justice. On the other hand it would expose the proceedings to the trial of a new cause of action, which cannot be afforded to be undertaken without a fresh trial on the said issue.