JUDGMENT
K.A. Mohamed Shafi, J.
1. The plaintiff in O.S. 1002 of 1997 on the file of the Munsiff’s Court, Ernakulam is the revision petitioner. His application in I.A. 8878 of 1998 to amend the plaint under Order 6 Rule 17 of the C.P.C. is dismissed by the lower court. Hence the above revision is preferred.
2. The plaintiff filed the above suit seeking permanent prohibitory injunction restraining the defendants from demolishing or causing any damage to the residential building bearing No. 43/587 standing in the plaint schedule property and belonging to the plaintiff/revision petitioner. His case is that his mother, the first respondent executed a settlement deed No. 2270/86 in respect of 7 cents of land and the building situated therein in his favour and he has accepted the gift. Thereafter he is the absolute owner of the property and the building situated therein. According to him, at the insistence of the second respondent, his brother, the first respondent cancelled the gift in his favour by executing a document No. 2978 of 1988 which is void abinitio and the first respondent executed an assignment deed in favour of the second respondent in respect of 2.495 cents of land wherein the building is situated. Therefore he filed the above suit seeking necessary reliefs against the respondents from causing any damage to the building or demolishing the building and obtained a temporary injunction against the respondents. His further case is that during the pendency of the above suit, the respondents trespassed upon the plaint schedule property and illegally demolished the building. Therefore he sought amendment of the plaint, by taking into account the events subsequent to the filing of the suit, seeking relief of recovery of possession of the 7 cents of land described in the plaint schedule with mesne profits at Rs. 100/- per annum, a decree for Rs. 30,000/- being damages for value of the building demolished by the respondents with interest thereon at 6% per annum and for a compensation of Rs. 1500/- for violating the injunction order passed by the lower court.
3. The respondents resisted the application and contended that if the amendment is allowed, the entire nature and character of the suit will be changed and will introduce a new cause of action for the plaintiff.
4. The lower court accepted the contention of the respondent and disallowed the amendment sought for, finding that the revision petitioner can redress his grievances by filing a separate suit.
5. It is not in dispute that the above suit is filed by the revision petitioner seeking permanent prohibitory injunction against the respondents from causing any damage to the building situated in the plaint schedule property or demolishing the building alleging that he is the absolute owner of the property and the building as per a settlement deed executed by the first respondent, his mother, the owner of the property and he has obtained a temporary injunction against the respondents in the suit. It is also the common case that the respondents have filed O.S. 2123/1998 against the revision petitioner and both the suits were tried jointly by the lower court. After the revision petitioner’s evidence was closed and the respondents evidence was in progress, the above petition to amend the plaint is filed by the revision petitioner alleging that the respondents have trespassed upon the plaint schedule property during the pendency of the suit and in violation of the injunction order, demolished the building and therefore the revision petitioner is entitled to relief in the suit in accordance with the events occurred after filing of the suit and therefore the plaintiff is entitled to amend the plaint as sought for by him.
6. The contention of the respondents is that they have not trespassed upon the property and the building was collapsed. They have also contended that the revision petitioner has absolutely no right in the plaint schedule property or the building situated therein since the gift deed executed in his favour is already revoked by the first respondent and she has executed a gift deed in respect of the property in favour of the second respondent. It is also contended that the gift deed executed by the first respondent in favour of the second respondent after cancelling the settlement deed executed by the first respondent in favour of the revision petitioner is not challenged and therefore the revision petitioner cannot claim any right in the property.
7. At this stage we are not concerned with the merits of the contentions put forward by both sides in the suit and the only question to be considered is whether the revision petitioner/plaintiff is entitled to seek the amendment in the plaint as set forth in the above petition. It is not disputed that the building situated in the plaint schedule, property which was in existence at the time of filing of the suit is not existing now. The fact that an interim injunction was obtained by the revision petitioner against the respondents from trespassing upon the property and causing any damage or demolition of the building during the pending of the suit is not disputed. The question whether the building is demolished by the respondents by trespass as alleged by the revision petitioner or it collapsed as contended by the respondents is to be decided by the trial court on evidence. By way of amendment sought to be incorporated, the revision petitioner seeks only the remedies that are available to him subsequent to the institution of the suit. Such amendment of the plaint necessitated due to the subsequent events alleged to have occurred after filing of the suit can be allowed under Order VI Rule 17 of the C.P.C.
8. In the decision reported in Kannan and Ors. v. Chirudu and Ors. (1959 K.L.T. 807), this court has held that in a suit for declaration of title and for injunction restraining the defendants from committing any waste in the plaint schedule property, amendment of plaint seeking a decree for possession on the allegation that subsequent to the suit the defendants are preventing the plaintiff from entering upon the property and virtually deprived their possession under Order IV, Rule 17 of C.P.C. is permissible.
9. In the decision reported in Narayanan Nair v. Appu and Ors. (1972 K.L.T. 406) this court has held that in a suit for permanent injunction to restrain the disbursement of compensation amount to the defendant, the plaint can be converted into one for recovery of amount if the amount is already disbursed before a temporary injunction was granted, under Order VI Rule 17 of C.P.C.
10. In this case, the very contention of the revision petitioner is that subsequent to the institution of the suit, the respondents have trespassed upon the plaint schedule property and committed waste in violation of the temporary injunction passed by the court. Therefore the amendment of the plaint as sought for by the revision petitioner seeking recovery of possession of the plaint schedule property with mesne profits, damages for demolition of the building and also for violation of the injunction order is perfectly maintainable since all those reliefs are in respect of the events that are alleged to have occurred subsequent to the institution of the suit.
11. The proposition that no amendment of pleadings can be allowed, if the amendment drastically changed the nature and character of the suit and will introduce a new cause of action is of no dispute. But it is clear that by the amendment sought for by the revision petitioner, the nature and character of the suit will not be changed and it will not introduce a fresh cause of action to the detriment of the respondents/defendants.
12. If the lower court found that the application is belated, the delay could have been compensated by awarding costs to the opposite side. The contention of the respondents that if the amendment sought for is allowed the disposal of the suit will be delayed since the respondents will have to file additional written statement and adduce further evidence is not sustainable. Filing of additional written statement and adducing further evidence, if necessary, is the necessary concomitant of the amendment of the plaint to be allowed. Hence the lower court was in manifest error in disallowing the amendment sought for in the plaint. Hence this revision petition is allowed, the impugned order is set aside and the amendment sought for in the plaint is allowed. The lower court is directed to proceed with the suit in accordance with law, including the payment of additional court fee by the revision petitioner, filing an additional written statement by the respondents and adducing further evidence by the parties etc.
ORDER ON CMP NO. 1539 OF 2000 IN C.R.P. 760/2000
DISMISSED