MUTHU Vs. PADMA

JUDGEMENT

(1.) THE Civil Revision Petition has been filed by the plaintiff in the suit. THE petitioners have filed a suit for declaration, permanent injunction and mandatory injunction against the defendant in O.S.No.41 of 2005, on the file of the Subordinate Court, Paramakudi. THE said suit has been filed claiming title to the suit property. Pending the suit, an application was filed in I.A.No.34 of 2007, seeking amendment under Order 6 Rule 17 of C.P.C., for amending the prayer for possession. THE said application has been dismissed by the court below on the ground of delay. Challenging the same, the present Civil Revision Petition has been filed.

(2.) THE learned counsel for the petitioners submitted that the proposed amendment has not changed the cause of action or introduce a new case. He further submitted that the suit itself is filed for declaration and mandatory injunction. THE application ought to have been allowed. According to the learned counsel, the delay in itself cannot be a ground for rejecting the application. THE learned counsel would further submit that in as much as the main relief is for declaration, incidental relief of possession will have to be granted.

(3.) IN the case on hand, the suit has been filed for declaration and mandatory injunction. The averments made in the plaint would disclose that the petitioners have admitted the possession of the plaintiffs. The prayer for mandatory injunction is sought for, for removing the construction put up by the respondent. Therefore, amendment is only by way of abundant caution in order to get over the technical objection raised by the respondent. It is also seen that the petitioners are not introducing a new cause of action nor there is any change in the cause of action. The suit has been filed based upon the title. There is no change in the stand of the petitioner. This Court is of the opinion that the order passed by the trial court is liable to be set aside and the delay in filing an application alone cannot be a ground for rejecting the prayer for amendment. The trial court is vested with discretion to decide the application. The petitioners have stated in their affidavit that they were constrained to file this application in view of the technical objection raised by the respondent. Hence, this Court is of the opinion that the order passed by the court below cannot be sustained.