GOVINDARAJAN Vs. P.M. JINNA BAI AND OTHERS

JUDGEMENT

(1.) The petitioner/plaintiff has filed the suit in O.S. No.185 of 2009 on the file of District Munsif Court, Madurantagam for permanent injunction. The said suit was posted for trial and the examination of PW1 was completed. At that stage, the petitioner, has filed the application in I.A. No.1491 of 2016 under Order 6 Rule 17 and Section 151 Civil Procedure Code to amend the plaint. The court below dismissed the said application for amendment on the ground that the petitioner has raised a new fact, new cause of action and introduced new relief than the one prayed for in the suit. Further, the amendment sought by the petitioner lacks bonafide and the Interim Application has been filed to drag on the proceedings, Challenging the same, the present Civil Revision Petition has been filed.

(2.) The learned counsel for the petitioner/plaintiff would submit that the petitioner has filed the suit for permanent injunction. The said suit was posted for examination of PW1 and before completion of trial, the application seeking amendment has been filed and therefore it cannot be said that the application was filed belatedly. Further, the amendment of prayer, if entertained, would not cause prejudice to the respondents and therefore, the court below ought to have allowed the application. The respondents have constructed new bath room and toilets on the western side portion of the suit schedule property by tress passing into the suit property and are in unlawful occupation of a portion of the suit property. The application for amendment has become necessary inasmuch in the suit.

(3.) The learned counsel appearing for the respondent/defendants submitted that by virtue of amendment, the plaintiff is seeking to introduce a new case than originally in the plaint. If the proposed amendment sought for by the respondent/defendants is permitted, it would defeat the very defence projected by the respondents in the written statement because at the time of filing the written statement, the respondents have no knowledge about the proposed plea made by the petitioner/plaintiff and they have no occasion to meet those averments. Further the cause of action for seeking the present relief cannot be sought by way of an amendment of the plaint and the proposed amendment if entertained would result in a fresh case being projected by the petitioner/plaintiff. Further more the application seeking amendment had been filed by the plaintiff after commencement of trial. Even, the petitioner/plaintiff has admitted that examination of PW1 was completed and he has to be cross examined by the respondent-defendant. Therefore, the trial Court taking note of the above has rightly dismissed the application for amendment. In support of this contention learned counsel for the respondents/defendants relied on the decision reported in Rajesh Kumar Agarwal and others v. K.K. Modi and others reported in (2006) 4 SCC 385 and Mount Mary Enterprises v. Jivratna Medi treat Private Limited reported in (2015) 4 SCC 182