ORDER
A. Kulasekaran, J.
1. This revision petition was posted today for admission. I heard the counsel for the petitioner.
2. The defendant is the petitioner. The respondent/ Plaintiff has filed a suit O.S. No. 538 of 1994 before the Additional District Munsif Court, Namakkal for recovery of possession, arrears of rent and for damages at the rate of Rs. 250/- per month from the date of filing the suit till realisation. The respondent herein has filed an application IA No. 169 of 2003 under Order VI Rule 17 CPC for amendment of the plaint seeking for declaratory relief and also to change the measurements of the suit property. The court below allowed the petition for amendment, which is challenged in this revision.
3. Before the court below, the respondent herein has marked Ex.P1 dated 13-11-1992, original deed of settlement executed by his father in his favour and Ex.P2 dated 11-02-1993 another original deed of settlement executed by his father in his favour. The reports of the advocate commissioner dated 21-01-2003 were marked as Exs. C1 and C2 respectively.
4. The respondent has pleaded before the court below that the suit was originally filed for recovery of possession, arrears of rent and for future damages. As per Ex.P1, the respondent has acquired property east to west, on the northern side 36 ft., southern side 36 ft., eastern side 12 ó ft. and western side 12 ó ft., admeasuring in all 459 sq.ft. Under Ex.P2, the respondent has acquired the property east to west, on the northern side 36 ft., southern side 36 ft., and on both eastern and western sides 19 ft. each, admeasuring in all 684 sq.ft. comprised in Survey No. 12/2A. The report of the Advocate Commissioner reveals that the exact extent is being occupied by the petitioner herein. It is also submitted by the respondent before the trial Court that, as the petitioner denied the title and set up a plea of adverse possession, it has become necessary for the respondent to seek for a declaratory relief by amending the earlier prayer. It is also canvassed by the respondent before the court below that court fee has to be determined in the first instance based on the plaint averments and if the defendant sets up a defence of adverse possession denying the title, it is open to her to amend the plaint and pay necessary additional court fee for the relief of declaration.
5. The petitioner herein has canvassed before the court below that the suit is not at all maintainable; the averments that the petitioner has encroached upon the property after filing the suit is false; that the report and sketch submitted by the learned Advocate Commissioner are incorrect.
6. Mr. Dhanyakumar, learned counsel for the petitioner submitted that the plaint proceeds on the basis of relationship of landlord and tenant and the suit was valued under Section 43 of the Tamil Nadu Court Fee Act, 1955, as such the amendment ought not to have been permitted; that the question of title cannot be gone into the suit claiming arrears of rent and possession; that the court below failed to note that the amendment sought for would change the very character of the suit and the court below should have dismissed the said petition.
7. The relevant provision of law is Order VI Rule 17 of C.P.C., which runs as follows:-
“Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.”
8. It is seen from the said Rule that the Court may at any stage of the proceedings allow either party to alter and amend his pleadings, which are necessary for the purpose of determining the real questions in controversy between the parties.
9. The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice. The exercise shall be made with due care and circumspection on the part of the Court as has been held by the Hon’ble Supreme Court in the decision wherein the Supreme Court has laid down principles to be followed in dealing with the application for amendments, namely,
i) All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit.
ii) All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject matter of or controversy in the suit is not permissible.
iii) Introduction by amendment of inconsistent or contradictory alegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible through inconsistent pleas on the admitted position can be introduced by way of amendment.
iv) In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs
v) Amendment of a claim or relief which is barred by limitation when the amendment is sought to be made should not be allowed to defeat a legal right accrued except when such consideration is outweighed by the special circumstance of the case.
10. An alteration merely in the relief claimed in the suit does not, as a general rule, change the character of the suit and an amendment, seeking such alteration will be allowed, if it does not cause injustice to other side. In other words, where an additional relief is asked for on the same set of facts alleged in the plaint, it ought not to be disallowed. An inadvertent omission should be allowed to be amended provided no injustice is caused to the other side which can not be compensated.
11. In this case, subsequent to the institution of the suit, it is alleged by the respondents that the petitioner herein has encroached upon certain portion of the property. The petitioner denied the title and set up a plea of adverse possession as well, hence the respondents are entitled to a larger or other relief than the one claimed. In this case, the amendment has to be allowed so as to add such other relief, which was inadvertently omitted, besides that to avoid multiplicity of the suits. Moreover, no fresh cause of action is sought to be introduced by the amendment. In this context, it is relevant to mention the judgment of the Hon’ble Supreme Court reported in 1998 (2) SUPREME 404 (Lakhi Ram (dead) through L.Rs. v. Shri Trikha Ram & Others. ), wherein it is observed that, in a suit for specific performance of the contract, amendment of the plaint inserting the relevant averments u/s. 16(c) of the Specific Relief Act does not change the cause of action and would be legally permissible.
12. While allowing amendment, it is the bounden duty of the Court to look into whether such amendment is likely to cause injustice to other side. In this case, I do not find any such injustice being caused to the petitioner herein consequent to the amendment. The court below has categorically given a finding for exercising its discretion in allowing the amendment which is necessary for the purpose of determination of real question in controversy between the parties.
13. Hence, I hold that the order passed by the court below is perfectly valid in law and no interference is warranted. The Revision fails and is dismissed. No costs. Connected CMP is closed.