RENGASAMY Vs. BALAGURU

JUDGEMENT

(1.) This civil revision petition has been filed by the petitioner/plaintiff challenging the order, dtd. 25/9/2018, passed in I.A.No.185 of 2018 in O.S.No.6 of 2010, whereby and whereunder the petition filed by the petitioner seeking to amend the plaint in the Court fee portion is dismissed.

(2.) The petitioner / plaintiff has filed the suit for permanent injunction against the respondents / defendants. The respondents/ defendants made counter claim by seeking the relief of declaration that the eastern side wall of the property is common wall and consequential permanent injunction restraining the petitioner/plaintiff from altering the same. Pursuant to the counter claim made by the respondents / defendants, the petitioner / plaintiff filed an amendment petition seeking to add the relief of declaration in the plaint. The trial Court dismissed the said petition, against which the petitioners filed C.R.P. (MD).No.1839 of 2011 before this Court. This Court, by order dtd. 14/3/2013, allowed the amendment petition. Pursuant to that order, the plaint was amended. But, the Court fee portion was omitted to be amended in consonance with the amendment relating to the relief. The respondents/defendants filed an additional written statement stating that the petitioner/plaintiff is not entitled to relief of declaration as he has not paid proper Court fee. After about four years of filing of the said additional written statement and after hearing both sides, when the matter posted for judgment, the petitioner/plaintiff filed I.A.No.185 of 2018 seeking to amend the plaint in the Court fee portion. The Court below dismissed the said petition holding that the petitioner has not shown that he could not file the amendment petition earlier inspite of his due diligence. Aggrieved by the said order, the petitioner is before this Court.

(3.) The learned counsel for the petitioner/plaintiff submitted that after permitting the petitioner/plaintiff to add the relief of declaration by way of amendment as per the order passed by this Court in C.R.P. (MD).No.1839 of 2011, the Court below ought to have directed the petitioner to pay necessary Court fee for such relief and that as per Sec. 12 of the Tamil Nadu Court Fees and Suits Valuation Act, the Court is also equally responsible in the matter of collecting Court fees. The Court below has failed to do so. He would further submit that having permitted the petitioner to go ahead with the trial and to canvass for the relief of declaration, the Court below ought not to have dismissed the amendment petition. Thus, he prayed to allow this petition.