IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.09.2010
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD)No.823 of 2008
and
M.P.No.1 of 2008
K.Subramaniam ... Petitioner
Vs.
R.Boopalan ... Respondent
Civil Revision Petition has been filed against the Fair order and Decretal order dated 11.01.2008 made in I.A.No.18901 of 2007 in O.S.No.159 of 2002 on the file of the learned VIII Assistant City Civil Judge, Chennai.
For Petitioner : Mr.N.Seshadri
For Respondent : Mr.K.G.Vasudevan
O R D E R
The Plaintiff in O.S.No.159 of 2002 on the file of the VIII Assistant City Civil Court is the revision petitioner before the Court.
2. He is aggrieved by the order of trial Court dated 11.01.2008 dismissing the application filed by him under Order 6 Rule 17 of C.P.C. In I.A.No.18901 of 2007.
3. The brief facts are as follows:
The plaintiff filed O.S.No.159 of 2002 for a judgment and decree against the defendant for a declaration that the plaintiff is entitled to run the business of casting works exclusively under the name and syle of “General Casting Works” at NO.69, Demellows Road, Chennai -600 112 and for consequential injunction restraining the defendant from interfering with the bussiness of casting of works run by the plaintiff in the same name at the same place. Written statement was filed by the defendant and the trial has already commenced. At that time, the plaintiff filed I.A.No.18901 of 2007 under Order 6 Rule 17 to amend the plaint.
4. In the affidavit filed in support of amendment petition, it was stated that when the defendant attempted to dispossess him, he filed the suit on 2.02.2001, but during the pendency of the suit, the defendant dispossessed him and illegally entered into the premises. So he sought the following amendments.
1. On 23.01.2002 the defendant entered into the premises and dispossessed me, the cause of action prayer may be amended as the cause of action arose at Madras on 23.01.2002, when the defendant entered into the premises illegally.
2. The prayer column may be amended as (aa) directing the defendant to quit and deliver vacant possession.
3. The Court Fee position may be amended, the plaintiff values the suit for the purposes of Court Fee and Jurisdiction as R.11,400/- and pays a Court Fee of Rs.855/-. Under Section 30 of Tamil Nadu Court Fee and Suit Valuation Act.
5. This petition, was resisted by the defendant by filing a counter and on 11.01.2008 the trial Court dismissed the amendement petition and aggrieved by the same the above Civil Revision Petition has been filed by Article 227 of the Constitution of India.
6. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. I have also gone through the documents available on record.
7. Admittedly the suit was filed for a declaration and for consequential injunction. The injunction is to protect the premises which is being run by him. It was specifically averred in the plaint that the plaintiff is running the business in his father’s business. This was denied by the defendant in the written statement by stating that he is keeping all the keys of the said premises as he has control over it and in fact he is running the businss under the same name at the same place. It was now admitted by the plaintiff himself that during the pendency of the suit, i.e., on 23.01.2002, the defendant entered into the premises and dispossessed him and therefore the cause of action arose on 23.01.2002 itself, when the defendant entered into premises illegally.
8. The first plaintiff was examined on 21.11.2006 and during the cross examination on 21.01.2007, he specifically stated that Ramalingam died on 03.07.2001 and on and from that date he was not able to enter into Company. However the suit was filed on 21.12.2001 and the same was numbered on 08.01.2002. Therefore ever according to the plaintiff on the date of filing the suit he was not in possession and what was stated in the plaint with regard to possession did not tally with the evidence given by him.
9. The trial Court has correctly relied on this fact to reject the amendment petition.
10. In the written statement also, the defendant contended that the plaintiff was not in possession, which was now confirmed by the plaintiff himself. If that being so, the amendment itself is to fill up the lacunae which could not be permittd by the Court. Having known fully well at the time of filing the suit itself that he was not in possession of the property, still the plaintiff chose to plead as if he was in possession. Now admitting that he was not in possession, he now wanted to plead that he was dispossessed during the pendency of the suit, which is again not correct. In such circumstances, I do not find any bonafide on the part of the plaintiff and in fact he is taking the Courts for a ride by blowing hot and cold, which cannot be permitted by Court of law.
11. Yet another reason for rejecting the amendment petition is that the trial has commenced and in fact completed and the suit is posted for judgment. No acceptable explanation has been given by the plaintiff for filing the amendment petition so belatedly, eventhough he admitted that he was dispossessed on 23.01.2002. If he was dispossessed on 23.01.2002, he should have approached the Court for filing necessary amendment petition within a reasonable time or atleast before the commencement of trial. But he waited endlessly and chose to file the amendment petition at the fag end of November 2007 and no reason whatsoever was given by the plaintiff for filing the petition belatedly.
12. In the result, I find no merits in the Revision Petition and I concur with all the reasons given by the trial Court for rejecting the
S.RAJESWARAN, J.
cse
amendment petition. Though a number of judgments have been cited on behalf of the plaintiff, I find them not useful to the case of the petitioner in view of the peculiar facts of the present case.
In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
28.09.2010
Index : Yes/No
Internet: Yes/No
cse
To
The VIII Assistant City Civil Judge,
Chennai.
Pre-delivery order made in
C.R.P.(PD)No.823 of 2008
and
M.P.No.1 of 2008