IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 24.11.2008
Coram
The Honourable Mr.Justice S.RAJESWARAN
C.R.P.(PD) No.2424 of 2008 and M.P.No.1 of 2008
Varadharaju ... Petitioner
Vs.
1. Chinnapillai
2. Nagarajan
3. Selvam ... Respondents
Civil Revision Petition has been filed Under Article 227 of the Constitution of India against the order dated 26.06.2008 passed in I.A.No.208 of 2008 in O.S.No.167 of 2001 on the file of the District Munsif, Sankari.
For Petitioner : Mr.N.Manokaran
For Respondents : Mr.V.Bharadhidasan
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O R D E R
This Civil Revision Petition is filed against the order dated 26.06.2008 passed in I.A.No.208 of 2008 in O.S.No.167 of 2001 on the file of the District Munsif, Sankari.
2. Plaintiff in O.S.No.167 of 2001 is the revision petitioner before this court. The suit in O.S.No.167 of 2001 has been filed by the petitioner/plaintiff for permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property. Written statement was filed by the third defendant and adopted by the defendants 1 & 2 and thus the suit is being contested. Additional written statement has also been filed by the third defendant and adopted by the defendants 1 & 2. During trial, an application in I.A.No.208 of 2008 was filed by the petitioner/plaintiff under Order VI Rule 17 C.P.C. for amending the plaint to include two other survey numbers as the suit property, i.e., 75 cents have been separated into three sub divisions. The said application was resisted by the respondents/defendants by filing a counter by the third defendant and adopted by the first and second defendants. The trial court by order dated 26.06.2008 dismissed the application. Aggrieved by the same, the above revision petition has been filed under Article 227 of the Constitution of India.
3. This Court on 25.07.2008 ordered notice and granted interim stay. The respondents have entered appearance through counsel.
4. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondents. I have also gone through documents filed in support of their submissions.
5. The learned counsel for the petitioner submits that the petitioner/plaintiff filed a suit for permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit property comprised in S.F.No.255/8 measuring an extent of 75 cents. In the plaint, the survey No.255/8 alone was mentioned by the plaintiff. During trial, the respondents said that the suit property has been sub divided into three survey numbers. The Survey No.255 was divided into several sub divisions and patta was issued. Patta has been issued in respect of S.F.No.255/8 measuring an extent of 59 cents S.F.No.255/7, 6 cents and S.F.No. 255/10 an extent of 10 cents. Therefore, the plaintiff filed an application in I.A.No.208 of 2008 for amending the plaint to include two other survey Nos. i.e., 255/7 and 255/10. According to the learned counsel, though the two survey No.255/7 and 255/10 are sought to be included, the total extent of the suit schedule property remains same, i.e., 75 cents which had been divided into three sub divisions as stated above and there is no change in the boundaries also. Hence, according to the learned counsel for the petitioner, the trial court committed an error in dismissing the application, warranting interference by this court under Article 227 of the Constitution of India.
6. Per contra, the learned counsel appearing for the respondents/defendants submits that the amendment application has been filed by the plaintiff after a delay of seven years which is an abuse of process of law. According to him, the trial court has considered the facts and circumstances of the case and rightly dismissed the application. Hence, he adds that there is no illegality nor infirmity in the order.
7. I am unable to accept the submissions made by the learned counsel appearing for the respondents/defendants.
8. The suit is for permanent injunction filed by the petitioner/ plaintiff, wherein the plaintiff/petitioner herein filed an application in I.A.No.208 of 2008 for amending the plaint to include the two Survey Numbers, viz., 255/7 and 255/10. According to the petitioner, total extent of 75 cents of the plaintiff’s property in S.No.255 have been sub divided into three sub divisions, as 255/8, 255/7 and 255/10. Further, the extent of the suit property remains the same excepting including these two survey numbers. Further, it is trite law that amendment of pleadings which are necessary for determining the issues, should be allowed, provided there is no change in the nature and character of the suit. In this case, due to sub division effected there is change in the survey numbers and the amendment ought to have been allowed. The trial court on a thorough misconception of facts and law, dismissed the application which is liable to be set aside. Hence, the order passed by the trial court in I.A.No.208 of 2008 dated 26.06.2008 is set aside.
9. In the result, the Civil Revision petition is allowed. Connected miscellaneous petition is also closed.
10. However, since the amendment application has been filed after a delay of seven years, I direct the petitioner/plaintiff to pay a sum of Rs.500/- to the learned counsel appearing for the respondents/defendants within a period of one week from today. On such payment being made to the learned counsel for the respondents/ defendants, and the proof of payment shown, the trial court shall permit the petitioner to carry out the amendment in the plaint immediately. The respondents/ defendants are at liberty to file additional written statement if any, on the amended plaint within a period of 15 days from the date of carrying out the amendment in the plaint.
11. Further, as the suit is of the year 2001, the District Munsif, Sankari is hereby directed to dispose of the suit within a period of four months from the date of receipt of a copy of this order.
24.11.2008
S.RAJESWARAN,J.
vaan
Index : Yes/No
Internet: Yes/No
vaan
To
The District Munsif, Sankari
CRP(PD)No.2424 of 2008
24.11.2008
C.R.P.(NPD) No.1239 of 2007
29-11-2007