Posted On by &filed under High Court, Madras High Court.

Madras High Court
Parvathi Achi And Ors. vs Sundaram And Ors. on 12 March, 1926
Equivalent citations: 97 Ind Cas 727
Author: Devadoss
Bench: Devadoss


Devadoss, J.

1. The only point argued in this second appeal is that the lower Appellate Court should have allowed the plaintiffs to amend their plaint. The lower Appellate Court held that the appellants were not entitled to any indulgence as they failed to apply to the first Court notwithstanding the contention raised by the respondents that the plaintiffs were not in possession of the property in dispute. The suit as framed was one for the issue of a permanent injunction. The defendants in their written statement pleaded that the plaintiffs were not in possession and that the suit for injunction was not maintainable and an issue was specifically raised in the first Court and was tried, and the Court found that the plaintiffs were not in possession of the property. The plaintiffs could have asked the first Court to allow them to amend the plaint by asking for possession and they failed to do so. The contention of Mr. Venkatarama Iyer for the appellants is that another suit was filed for possession on the ground of title and that the plaint in that suit was returned and for some reason or other was not represented. If that was so the present plaintiffs ought to have applied for amendment of the plaint seeing that the other suit which they wanted to proceed with could not be continued on account of something which happened before the trial of this suit. No doubt, Courts should not refuse petitions for amendment without proper grounds but where the plaintiff is negligent or where he insists upon proceeding with a suit notwithstanding the objection raised by the defendant and fails, the Court should hesitate to grant an application of this kind at the mere request of the plaintiff. In this case the plaintiffs ought to have known that they had not possession of the suit property and inasmuch as the defendants contested the fact that they were in possession at the earliest opportunity, they should have asked for the leave of the Court to amend the plaint by adding a prayer for possession. For reasons best known to themselves, they had not done so and in the lower Appellate Court they asked for leave to amend the plaint. In proper cases, no doubt, the plaint could be amended even in second appeal, but this will depend upon the circumstances of the case. In this case I am satisfied that the plaintiffs would not suffer irreparable damages by the request not being granted. If advised they could file another suit for possession of the property on the ground of title. That being so, I cannot hold that lower Appellate Court was wrong in refusing to grant the prayer of the plaintiffs to amend the plaint. This is the only point argued in second appeal and the point is not sustainable.

2. In the result the second appeal fails and is dismissed with costs.

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