ORDER
Abdul Hadi, J.
1. Aggrieved by the dismissal of I.A. No. 20826 of 1991 for amendment of the plaint in O.S. No. 5799 of 1986 on the file of VIII Assist-‘ ant City Civil Judge, Madras, the plaintiff has preferred this civil revision petition.
2. The suit was originally for a permanent injunction to restrain the 1st defendant from interfering with the plaintiff’s possession of the suit property. The suit property is a land of an extent of 55 x 13 1/2 and building thereon at New Door No. 72, Medavakkam Tank Road, Kilpauk, Madras. In the abovesaid application, on the ground that on 24.9.1986 the 1st defendant trespassed into the suit property and forcibly removed the superstructure and threw away all the belongings of the plaintiff and on the ground that the 1st defendant has denied the title of the plaintiff to the suit property, the plaintiff sought for amendment of the plaint, seeking a declaration that the plaintiff is the sole and absolute owner of the suit property and to direct the 1st defendant to put the plaintiff in possession of the said property. The court below has dismissed the said application on the ground that it is very much belated since the suit has been filed on 4.8.1986 and the application was filed only in 1991.
3. Learned counsel for the petitioner argues that even though there was a gap of five years between the date of the suit and the date of the application, even in 1987 itself there was a complaint of criminal trespass in relation to the abovesaid happening on 24.9.1986 and a criminal case before the 5th Metropolitan Magistrate, Egmore for criminal trespass in C.C. No. 8027 of 1987 is pending. The affidavit in support of the application also states that it is only the respondents who filed Crl. M.P. No. 2681 of 1989 in this Court under Section 482 of the Code of Criminal Procedure for quashing the said C.C. No. 8027 of 1987 and also got a stay. In the above circumstances, learned Counsel for the petitioner represents that on the ground of delay alone the application could not be dismissed since amendment could be allowed at any time as per O.6, Rule 17 of the Code of Civil Procedure.
4. On the other hand, learned Counsel for the 1st respondent (1st defendant) argues as follows: The petitioner cannot at all claim the abovesaid declaration relief, on his own plea in the plaint. According to the averments in paragraph 3 of the plaint, which has not been sought to be amended, the 2nd defendant alone is the absolute original owner of the suit property and the 2nd defendant had borrowed a sum of Rs. 1 ,800 on 17.9.1978 from the plaintiff, and as security for the repayment of the said sum, the 2nd defendant had given possession of the suit property to the plaintiff. Further, the learned Counsel points out that even as per the allegations in the plaintiff’s affidavit in support of the abovesaid application, the superstructure over the suit land did not exist since it had been removed. For all these reasons, learned Counsel submits that the plaintiff cannot ask for a declaration at all, on his own plea both in the plaint and in the affidavit in support of the application. Learned counsel for the 1st respondent also submits that the abovesaid declaration is also barred by limitation as per Article 58 of the Limitation Act since the period of limitation is only three years from the date when the right to sue accrues. In this connection, the learned Counsel points out the following allegation in the written statement:
…the plaintiff had given a signed letter on 14.5.1986 accepting this defendant’s ownership of the portion in his occupation and his intent to vacate immediately on getting alternate accommodation.
So, according to the learned Counsel, the time begins to run at least from 14.5.1986. So, the proposed amendment sought to be made in 1991 should not be allowed.
5. Learned counsel for the 1st respondent also submits that this civil revision petition should not be entertained since there is no error of jurisdiction under See 115 of the Code of Civil Procedure. In this connection, he relies on the decision in A. Haleem v. M.S. Tajudeen (1993)1 L.W. 502. He also points out that for both the declaration relief and the possession relief prayed for, necessary additional court-fee has not been paid. He also submits that prejudice will be caused to the 1st defendant if the proposed amendment is allowed since in 1987 a new building has been put up on the land in question by the 1st defendant. In this connection he relies on the decision in Kanailal v. Jiban .
6.1 have considered the rival submissions. So far as the declaration relief prayed for in the proposed amendment is concerned, in view of the abovesaid admissions in the plaint as well as in the affidavit in-support of the application, as stated above, that relief cannot be asked for by the plaintiff. But, in so far as the possession relief is concerned, I hold the amendment has to be allowed since all that the plaintiff alleges is that pending suit the 1st defendant has trespassed into the property and forcibly evicted the plaintiff from the property. No doubt this allegation is factually denied by the 1st defendant, whose contention is that the 1st defendant was in possession even prior to the suit, of the suit property including thereon put up by the 1st defendant and that subsequently in 1987, a new building was also put up. But, in considering such an amendment application, the court should not go into the merits of the disputed questions of fact. That could be gone into only at the time of the trial of the suit. But, as I have already stated this principle could be applied only with reference to the possession relief, where there is dispute between the parties. With reference to the declaration relief, even as per the plaintiff’s own allegation, he is not having the title to the suit land and even with reference to the superstructure over the said land, the allegation is that the said superstructure put up by the plaintiff had been completely removed by the 1st defendant. Therefore, the plaintiff cannot have the proposed declaratory relief.
7. Coming back to the proposed amendment relating to possession relief the settled law is that in an injunction suit, if the allegation is that the defendant has trespassed into the property, pending suit and taken possession of the property, the court could very well mould the relief and grant the relief of possession even without amendment of the plaint. While so, there can be no bar for granting the proposed amendment seeking the possession relief based on the alleged possessory title of the plaintiff. In view of the abovesaid settled law, I think that order of the court below suffers from material irregularity in the exercise of jurisdiction Section 115 of the Code of Civil Procedure empowers this Court to revise such orders. A. Ha teem v. M.S. Tajudeen (1993)1 L.W. 502 will have no application to the present case. I am also unable to accept the contention of learned Counsel for the 1st respondent that prejudice would be caused to the 1st defendant if the proposed amendment is allowed with reference to possession relief. If really the illegal trespass pending suit is true, then the 1st defendant cannot advance this argument of prejudice. But the question whether there was illegal trespass or not has to be gone into only at the time of the trial of the suit. So, there can be no bar for allowing the abovesaid amendment relating to possession relief alone. Simply on. the ground of delay, the amendment relating to possession relief cannot be refused particularly when it is found that as early as 1987 the plaintiff has taken criminal action for the alleged trespass.
8. Accordingly, the civil revision petition is partly allowed only with reference to the abovesaid possession relief. In other words, the order of the Court below is modified and the abovesaid application is allowed partly. The proposed amendments excepting that which deals with the abovesaid declaratory relief, are allowed. It is needless to say that the plaintiff has also to necessarily amend consequently the relevant paragraphs in the plaint dealing with cause of action and court-fee and pay court-fee for the possession relief sought for. No costs.