ORDER
S. Ashok Kumar, J.
1. As against allowing the Interlocutory Application field by the plaintiff for amendment of the Plaint, the defendants have preferred this revision.
2. The suit has been filed by the plaintiff/respondent herein for declaration that it is entitled to claim damages in a sum of Rs. 89,000/=. Pending the suit, the plaintiff filed Interlocutory Application to amend the calculation namely the damages to the articles at Rs. 78,680/= instead of Rs. 89,000/= and for godown at Rs. 1,000/= and for the total loss of Rs. 89,680/=. He has also prayed for paying the court fee of Rs. 6726.50.
3. The revision petitioner/defendant resisted the said application contending that by way of amending the Plaint, the plaintiff is converting the suit as a money suit and as such the present amendment is hit by limitation.
4. The learned trial Judge on a consideration of the pleadings and the averments of the learned Counsel appeared for both sides allowed the said Interlocutory Application holding that the amendment sought for does not amount to alteration of the case or cause of action and it is only an alteration of the prayer relief already sought for in the suit. Aggrieved by the same, the present revision has been filed by the defendant.
5. The learned Counsel for the revision petitioner contended that by allowing the amendment it alters the nature of the suit viz., from the very relief of declaration to a relief of recovery of money which cannot be allowed. The further contention of the learned Counsel is that the suit itself was filed after 5 years of the alleged fire accident which itself is barred by limitation and the amendment now sought for after 17 years of the alleged fire accident of the is certainly barred by limitation and however, the learned District Munsif failed to see that if the present prayer is sought for by a separate suit, the same would not have been entertained and the same principle is applicable to the present circumstance and hence the amendment is not sustainable. The learned Counsel also relied on the judgements reported in 2004 (2) CTC 143, 1998 MLJ page 5 and .
6. In Muni Lal v. Oriental Fire & General Insurance Co. Ltd. and Anr. , the Hon’ble Apex court held thus:
Under Order 6 Rule 17 CPC granting of amendment on such terms as may be just is also a condition for the purpose of determining the real question in controversy between the parties. The amendment to grant consequential relief sought for in this case is as envisaged in proviso to Section 34 of the Specific Relief Act, 1963. That relief was, however, available to him, to be asked for, when the suit was filed. By virtue of the proviso to Section 34 o hat Act, a mere declaration without consequential relief does not provide the needed relief in the suit. It would be for the plaintiff to seek both the reliefs when the suit was filed. The omission thereof mandates the court to refuse to grant the declamatory relief.
Though to render substantial justice without causing injustice to the other party or violating airplay, court would be entitled to grant proper relief even at the stage of appellate forum, in this case granting of amendment of plaint seeking to introduce alternative relief of mandatory injunction for payment of specified amount was bad in law. The alternative relief was available to be asked for when the suit was filed but not made. He cannot be permitted to amend the plaint after the suit was barred by limitation during the pendency of the proceeding nit he appellate court or the second appellate court.
7. As far as the present case is concerned, though the plaintiff has asked for the relief of declaration declaring that the plaintiff is entitled to be indemnified and compensated for the value of the goods and godown which were damaged due to the fire accident that broke out on 24.4.1988 as per the terms of the insurance policy, which only indicates that the plaintiff is to be declared that it is entitled for getting indemnified and compensated for the value of loss and damaged and no separate relief has been sought for for grant of any specific compensation and only after 13 years of the suit, the present I.A., has been taken out to amend the plaint for claiming the compensation amount by paying necessary court fee which is certainly barred by limitation and hit by proviso to Section 34 of the Specific Relief Act, 1963. Under these circumstances, the Interlocutory Application is liable to be dismissed.
8. In the result, applying ratio laid down in the decision cited above, I am of the view that the plaintiff having failed to opt for seeking a separate prayer for compensation at the time of filing of the suit, is not entitled to ask for the same after a period of 17 years. Accordingly, the CRP is allowed and the impugned order passed in I.A. No. 135 of 2005 passed by the trial court is set aside. Consequently, connected Miscellaneous Petition is closed. No costs.