G CHANDRANATH Vs. S RAJAPUSHPAM

JUDGEMENT

(1.) THE revision petitioners/respondents/appellants 1 and 2 have preferred this civil revision petition as against the order dated 16. 04. 2009 in I. A. No. 17 of 2009 in A. S. No. 92 of 1998 passed by the Learned Principal District Judge, Salem in allowing the application filed by the respondent/petitioner/plaintiff under Order 6 Rule 17 of Civil Procedure Code praying for issuance of an order to amend the plaint.

(2.) THE Learned Principal District Judge, Salem while passing orders in I. A. No. 17 of 2009 on 16. 04. 2009 has inter-alia opined that 'the plaintiff claims right of easement for white washing the Southern wall by using the land of the defendants. Therefore, the amendment of plaint seeking relief of declaration that Southern wall belongs to the plaintiff, and also to amend the plaint to add 'c' schedule property over which easement right is claimed are necessary. The plaintiff is also allowed to amend the plaint to add additional pleading regarding the right of easement for the purpose of repairing, white washing and maintaining the Southern wall' and resultantly allowed the application.

(3.) ACCORDING to the learned counsel for the revision petitioners/appellants 1 and 2, the Learned Principal District, Judge, Salem while allowing I. A. No. 17 of 2009 has not taken into account of the fact that the amendments sought for by the respondent/plaintiff are altering the very nature and character of the suit and further the impugned order in I. A. No. 17 of 2009 suffers from material irregularity and patent illegality in the eye of law and as a matter of fact, the amendments claimed by the respondent/plaintiff will introduce new pleas of custom, which are beyond the scope of the suit and this Court while allowing S. A. No. 112 of 2002 by its judgment dated 28. 08. 2008 has remanded the A. S. No. 92 of 1998 to the file of the Learned Principal District Judge, Salem for fresh disposal in accordance with law and as a matter of fact, the High Court has not expressed any opinion in regard to the ownership of the schedule mentioned property and indeed the amendments sought for by the plaintiff have been already available at the time of filing of the suit and the 'doctrine of Selection' has been left by the respondent/plaintiff and therefore the amendments cannot be permitted in law and in any event, the impugned order in I. A. No. 17 of 2009 in A. S. No. 92 of 1998 has to be set aside by this Court sitting in revision and therefore prays for allowing the civil revision petition in the interest of justice.