A. RAJESHKUMAR Vs. SELVI

JUDGEMENT

(1.) The case of petitioner is that he has filed the suit for declaration and injunction in respect of the suit property measuring 3.750 cents. The respondent as defendant filed written statement denying the right and as well as the extent of property. Thus an advocate commissioner was appointed and after inspection he has filed the report to the effect that survey number 540/10 is having an extent of 2.081 cents alone. In such circumstances the extent as mentioned in the plaint is not available and thus petitioner filed a petition for amendment of plaint to amend the extent of suit property as 2.081 cents instead of the original claim of 3.750 cents and as well as four boundary of property to be amended as stated in the Advocate commissioners report. The application was contested by the respondent by filing a detailed counter and after considering the petition and counter the Court below erroneously dismissed the application on the ground of delay and as well as on a wrong finding that the proposed amendment will change the nature and character of the suit.

(2.) The learned counsel for the petitioner submitted that the delay alone cannot be a ground for dismissal of amendment application if the Court comes to the conclusion that the proposed amendment is necessary for determining the issues involved in the suit and the petition has to be allowed so as to render substantial justice instead of denying the amendment, which will result in multiplicity of litigation. The counsel further submitted that the extent mentioned in the document cannot be absolute one but the description of property can be mentioned based upon the factual existence and relied upon the judgment of this Honorable Court, reported in 2001 (2) MLJ 387.

(3.) The learned counsel for the respondent contended that the plaintiff cannot be allowed to amend the plaint on the basis of the commissioner's report but he must stand on his own documents. He has further submitted that even the boundary shown in the amendment is also not correct and the petition was filed after completion of evidence and when the suit was posted for arguments. The fact remains the report was filed in the year 2015 and the petition for amendment filed after delay of 2 years. As such the Trial Court has rightly dismissed the application and same does not warrant any interference. He has also relied upon the judgment of Hon'ble Supreme Court, reported in 2008 SAR (Civil) 641 stating that amendment application cannot be filed at the stage of argument. Further pointed out the Advocate Commissioner filed the report in the year 2015 but the petition for amendment came to be filed after delay of 2 years, that too completion of evidence and when the case was posted for arguments and as such the same cannot be allowed. The learned counsel further relied upon the judgment of this Court reported in 2017 (1) MWN (Civil) 714 and argued that application for amendment on the basis of report of advocate Commissioner cannot be entertained, when it introduce a new case, that apart amendment of plaint after trial is not permissible in law and the Court below is correct in dismissing the application and hence this Civil Revision Petition is liable to be dismissed.