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Mr. Ekambaram vs Masilamani on 9 January, 2009

Madras High Court
Mr. Ekambaram vs Masilamani on 9 January, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:09.01.2009

Coram:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

C.R.P.(PD)No.2448 of 2008
and
M.P.No.1 of 2008

Mr. Ekambaram				...  Petitioner 
vs.

Rani Ammal (died)
1. Masilamani
2. Chandrababu
3. Kamalanathan
4. Damodaran
5. Vasu
6. Susila
7. Chandra
8. Vanaja
9. Dhanasekaran
10. Valliammal
11. Ramu
12. Lakshmi				...  Respondents
	
This civil revision petition is  preferred to set-aside the order and decreetal order dated 19.09.2007 passed in I.A.No.1028 of 2007 in O.S.No.91 of 2002 by the learned District Munsif, Madurantakam and dismiss the same by allowing this C.R.P.
	For Petitioner	: Mr. N.Nagusah
	For Respondents	: Mr. Raghu
					

O R D E R

Animadverting upon the order dated 19.09.2007 passed by the learned District Munsif, Madurantakam in I.A.No.1028 of 2007 in O.S.No.91 of 2002, this civil revision petition is focussed.

2. Heard both sides.

3. A summation and summarisation of the case of the revision petitioner as stood exposited from the records could be portrayed thus:

The respondents 1 to 8/plaintiffs filed the suit for injunction as against the revision petitioner and respondents 9 to 12. During the pendency of the suit, the plaintiffs filed I.A.No.1028 of 2007 seeking amendment so as to get incorporated the prayer for possession and declaration. The trial Court also allowed the application, despite objection raised by the revision petitioner. Being aggrieved by and dissatisfied with the order of the Court below, this revision petition has been filed on various grounds.

4. The learned counsel for the petitioner placing reliance on the grounds of revision would develop his argument to the effect that admittedly and indubitably, as on the date of the filing the suit and for that matter long before filing of the suit itself, the petitioner had come into possession and enjoyment of the suit property and he continues to be so; while so the plaintiffs were not justified in filing the suit for permanent injunction; the plaintiffs were not legally correct in seeking amendment of the plaint so as to replace the prayer for permanent injunction with that of the prayers for declaration of title and for possession, which amount to changing the nature of the suit and also changing the entire cause of action.

5. I find considerable force in the submission made by the learned counsel for the petitioner. It is a trite proposition of law that amendments could be allowed for amending the plaint, but if the nature of the amendment sought is such that it is capable of changing the nature of the suit as well as the cause of action and also if it is in the form of capitalising one’s own laches, then such amendments should not be allowed.

6. Here as on the date of filing of suit, to the knowledge of the plaintiffs themselves, the defendants have been in possession and enjoyment of the suit property and in such a case, the amendment sought was totally untenable and the lower Court without adhering to all these salient points, simply allowed the I.A.1028 of 2007 in toto, which warrants interference. The learned counsel for the petitioner, would submit that in the I.A.No.1028 of 2007, the petitioner also made a prayer for rectifying the survey number from 99/5 to 99/9 and 99/10. The petitioner being

G.RAJASURIA,J.,

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dominus litis it is upto him to prove the case before the lower Court and hence to that much extent alone amendment is permitted. Accordingly, in the order dated 19.09.2007 of the lower Court, except the above said amendment, the rest of the prayers for declaration and possession are set aside. This civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.

7. In this factual matrix, it is for the plaintiffs to work out their remedy before the lower Court in respect of their existing prayer for injunction in the suit.

09.01.2009
Index :Yes
Internet:Yes

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To

1. The District Munsif, Madurantakam

C.R.P.(PD)No.2448 of 2008
and M.P.No.1 of 2008

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