MUNISWAMI Vs. M MANICKAM

JUDGEMENT

(1.) CHALLENGING the fair and decretal order dated 28.07.2006 and made in I.A.No.363 of 2006 in O.S.No.79 of 2003 on the file of the District Munsif, Sholinghur, this Civil Revision Petition is filed.

(2.) BRIEF facts which are necessary for the disposal of the Civil Revision Petition are as follows: The first respondent has filed O.S.No.79 of 2003 on the file of the District Munsif, Sholinghur seeking for a declaration and permanent injunction restraining petitioner and respondents 2 to 4 herein, from interfering with his peaceful possession and enjoyment of suit properties and for cost and other reliefs. According to the first respondent, the common Well described in the suit schedule, belongs to him and his two elder brothers viz. Gopal Reddy and Ganesa Reddy. All of them are in joint possession and enjoyment of the suit common well. The first respondent and his brothers have divided their joint family properties orally and since then they are in possession and enjoyment of their respective shares including the common Well. There was no sufficient water in the Well fitted with an electric motor pumpset and in order to cultivate loads in S.F.No.359/2B, the first respondent/plaintiff shifted the electricity service connection bearing S.C.No.60 from the said well to the suit well situated in S.F.No.359/2C, by obtaining necessary permission from the Tamil Nadu Electricity Board.

(3.) THE learned counsel appearing for the revision petitioner would contend that the amendment sought for is highly belated and that it would change the cause of action and the reliefs sought for in the plaint. Having filed the proof affidavit and subjected the witness for cross-examination the application is belated. To substantiate the above contention he relied on a judgment of this Court in D.Ramanujam vs. R.Panneerselvam reported in 2006 (3) CTC 27, wherein this court has held that when the trial had already commenced and if an amendment petition was filed, without giving any valid reason for not filing `the same before the commencement of trial, the same is liable to be rejected. THE court further held that after trial has commenced, the court does not allow any amendment petition, unless the court is satisfied that inspite of due dilligence, the party could not have raised the matter earlier. He further contended that the plaintiff after having admitted that the suit Well as a common Well, cannot lateron claim exclusive ownership of the same by way of amendment, which would amount to change of cause of action and nature of the case. For the above reasons, he prayed for rejection of the amendment.