SEETHARAMA REDDIAR Vs. ARULMIGHU ARUNACHALESWARAR DEVASTHANAM THIRUVANNAMALAI

JUDGEMENT

(1.) THIS revision is directed against the order passed by the learned Appellate judge allowing the amendment of the plaint. The facts which are necessary for the disposal of the revision are briefly as follows: The respondent herein viz. Arulmighu Arunachaleswarar Devasthanam , filed a suit against the revision petitioner or recovery of arrears of lease amount for Faslis 1387 to 1391. According to the plaint filed by the respondent, the leasehold property was survey No. 107/11 and 1. 50 acres of wet land at Membagha-patt u. After examining two witnesses the respondent filed amendment application stating that the land cultivated by the revision petitioner was not 107/11 but only dry land Survey No. 130/11 and of 1. 50 acres. The said amendment petition, though resisted by the petitioner herein, was allowed, ultimately, the learned trial Munsif dismissed the suit.

(2.) AGAINST the said dismissal of the suit the respondent herein filed appeal in A. S. No. 83 of 85 before the Sub-Judge, Villupuram. The respondent also filed an application in I. A. No. 339 of 86 for permitting to amend the plaint as well as the memorandum of appeal by substituting the suit properties Survey Nos. R. S. 319/4 of 32 cents and R. S. 328/23 of 84 cents, totalling 1. 15 acres of nanja lands in place of R. S. 137/11 of 1. 58 acres dry land. The reason alleged in the affidavit in the Court of the sub-Judge is that the respondent came to know the mistake only when he obtained the Adangal to file suit for recovery of arrears for subsequent Faslis in C. S. No. 872 of 86. The said application was resisted by the petitioner herein on the ground that by allowing the amendment the entire character of the suit changed and further the respondent should not be allowed to change the entire subjectmatter in the appeal, having lost before the lower court. Further there cannot be any mistake in respect of the description of property as it is the case of the petitioner that he is not cultivating the property of the respondent from 1978 onwards. The learned appellate judge allowed the amendment in one sentence observing that the amendment will not change the nature and character of the suit. Aggrieved by the same, this revision is filed.

(3.) THE learned counsel also invited my attention to a decision in SMT. GANGA BAI v. VIJAY KUMAR AND OTHERS, (1974)2 S. C. C. 393: A. I. R. 1974 S. C. 1126, where it was held: "the power to allow an amendment is undoubtedly wide and may at any stage he appropriately exercised in the interest of justice, the law of limitation notwithstanding. Rut the exercise of such far-reaching discretionary powers is governed by judicial consideration and wider the discretion, greater ought to be the care and circumspection on the part of the court. " But, ultimately it was held that the High Court was wholly in error in allowing such a belated amendment when valuable rights had accrued to the decree-holder by a lapse of time, thereby reversing the judgment of the Bombay High Court. That decision is also not helpful to the respondent, but, on the other hand, supporte the case of the petitioner. In this connection, it is worthwhile to quote the Full bench decision of this Court reported in KUMARASWAMI v. D. R. MANJAPPA, I. L. R. (1978)3 Mad. 1: 91 L. W. 357: A. I. R. 1978 Mad. 285 (F. B.), wherein it was held: "a pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings, but under the guise of an amendment a new cause cannot be substituted and the Courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expethen t under certain circumstances to take into consideration the supervening facts in the course of litigation which is long drawn, yet the mere lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events had happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances. For, that would run counter to the essential ratio governing the principle of amendment of pleading which "is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposed to that stated in the original plaint. " After a careful analysis of the entire materials placed before me and the order passed by the learned Sub Judge and in view of the ratio laid down in the above decision , ! am of the view that the order passed by the learned Sub Judge substituting the entire new subject-matter of the suit by way of amendment of the plaint in the appeal and that too after the expiry of the period of imitation especially in the circumstances of the case when the respondent should have been aware of the properties that were leased out to the petitioner and when he was not certain about the same and further when the lower Court has already allowed the amendment of the property, namely, subjectmatter of the suit, by substituting a different survey number during the trial contrary to the one mentioned in the original plaint, is unsustainable and is liable to be set aside THE Appellate Judge, while passing the impugned order has not at all applied his mind to the contentions raised by the petitioner opposing the application and erred in disposing of the application in casual way contrary to the well established ratio laid down in the decisions referred above including the decision of the Supreme Court. In the result, the revision is allowed and the order passed by the learned Subordinate Judge is set aside and consequently I. A. No. 338 of 1986 is dismissed. THE Sub Judge is directed to dispose of the appeal on the available material. In the circumstances of the case, there will be no order as to costs in this revision. It is also made clear that the decision rendered in this proceeding will not in any way affect the subsequent suit already filed by the respondent for recovery of arrears for the subsequent period in respect of the alleged new subjectmatter of the suit in case the respondent is able to establish that the said property was leased out to the petitioner and that he cultivated the same during the relevant period.