K V S MANIAN Vs. B S GOPALAKRISHNAN

JUDGEMENT

(1.) THE petitioner is the plaintiff in O.S.No.8567 of 1996. THE suit has been filed against the respondent herein claiming damages or in other words mesne profits for the use and occupation by the respondent. Earlier to the filing of the suit, the suit filed by the respondent in C.S.No.677 of 1986 on the file of this Court seeking the relief of specific performance was dismissed on 25.8.1989. THEreafter, the respondent preferred an appeal O.S.No.51 of 1990 which was also dismissed by a Division Bench of this Court on 13.12.1995. THEn the present suit has been filed by the petitioner claiming damages. In the suit, he has filed the application 1.A.No. 11633 of 1997 seeking amendment of the plaint for the inclusion of the relief of recovery of possession. THE same has been dismissed by the lower court. As against the said order, the present revision has been filed.

(2.) IT is the contention of the learned counsel for the petitioner that only in order to avoid multiplicity of proceedings, the petitioner has sought for the amendment instead of filing a separate suit for recovery of possession. The cause of action in the earlier suit for recovery of mesne profits as well as the cause of action for recovery of possession is one and the same. The amendment sought for will not bring out any new case and as such the order of the court below is liable to be set aside. The lower court has dismissed the application for amendment merely on the ground that the suit originally filed was for recovery of money and as such the amendment for recovery of possession cannot be sought for.