Madras High Court
Vellathuraipandi vs Lakshmanapandiyan on 9 October, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 09.10.2014 Coram The Honourable Ms. JUSTICE V.M.VELUMANI C.R.P.(MD)No.1473 of 2014(PD) & M.P.(MD) No.2 of 2014 Vellathuraipandi ... Petitioner Vs 1. Lakshmanapandiyan 2. J.V.P.Moses ... Respondents Petition filed under Article 227 of the Constitution of India against the fair and decretal order, dated 01.02.2014 made in I.A.No.422 of 2013 in O.S.No.419 of 2010 on the file of Additional District Munsif Court, Sankarankovil. !For Petitioner : Mr. Nallathambi ^For Respondents : M/s. A.Hafiza Date of reserving the Judgment : 25.09.2014 Date of pronouncing the Judgment : 09.10.2014 :ORDER
This civil revision petition has been filed against the fair and decretal order, dated 01.02.2014, made in I.A.No.422 of 2013 in O.S.No.419 of 2010 on the file of Additional District Munsif Court, Sankarankovil.
2.The petitioner is the plaintiff, whereas the respondents are the defendants in O.S.No.419 of 2010 on the file of Additional District Munsif Court, Sankarankovil. The petitioner filed O.S.No.419 of 2010 for the decree of declaration and for injunction in respect of two suit scheduled properties restraining the respondents, their men from interfering with their possession and enjoyment of the suit scheduled properties. The respondent filed written statement in the month of December 2010 denying the averments made in the plaint. After framing issues, the trial was commenced. The evidence on behalf of the petitioner was closed and posted for evidence on the side of respondents. At that stage, the petitioner filed I.A.No. 422 of 2013, for amendment of the plaint to include the relief of mandatory injunction and for recovery of possession.
3.According to the petitioner, after the commencement of trial, the respondents trespassed into the suit property and put up stone pillars and fenced the suit property. After fencing the suit properties, the respondents filed an application in I.A.No.245 of 2013, for appointment of an Advocate Commissioner on false allegations. The petitioner filed counter affidavit in the said Application, setting out the correct facts. The Advocate Commissioner was appointed and he inspected the suit property. At the time of inspection, the petitioner pointed out that stone pillars and fencing were put up recently i.e., within one month before the date of inspection by Advocate Commissioner. The Advocate Commissioner recorded the same. The respondents have put up the stone pillars and fencing after the commencement of the trial. Therefore, the petitioner filed I.A.No.422 of 2013 for amendment to include the prayer for mandatory injunction and for recovery of possession. The petitioner also filed application in I.A.No.423 of 2013 for re-opening the case. The respondents filed counter affidavit stating that in the written statement filed on 03.12.2010 itself, the respondents denied the averments of the petitioner that he is in possession. On the other hand, they asserted that they are in possession of the suit property and already they have put up stone pillars and fenced the properties. The Advocate Commissioner did not state that the stone pillars and fencing were put up recently. The petitioner was not in possession for more than 12 years before filing of the suit. The petitioner has not taken any steps to amend the plaint as on 03.12.2010 itself. The respondent have stated that they are in possession and put up fencing. Application filed after the commencement of trial is not maintainable.
4.The learned Trial Judge after considering all the materials on record and decision of this Court reported in [(2011) 1 MLJ 491 (Angamuthu Vs. Saroja and others)] dismissed the application. Against the said order of dismissal on 01.2.2014, the petitioner has filed the present Civil Revision Petition.
5.Heard the learned counsel for the petitioner and the learned counsel for the respondents.
6.The learned counsel for the petitioner argued that the respondents trespassed into suit property only after commencement of the trial and put up stone pillar and fenced the property only in the month of October 2013. Therefore, the learned Judge ought to have allowed the application for amendment. The amendment, he sought for is based on subsequent event and report of the Advocate Commissioner reveals that construction put up by respondents recently. The learned Judge erred in holding after the amendment of CPC in the year 2002, no amendment of pleadings after commencement of the trial can be permitted. The learned Judge ought to have seen that the amendment to include the prayer for mandatory injunction and recovery of possession will not change the nature of the suit. The learned counsel further contended that in any event, the learned Judge ought to have allowed the amendment on payment of cost. The learned counsel for the petitioner relied on the decisions reported in [2013 (3) MLJ 797 (S.Arumugam V.Sathy)] and [AIR 2008 SC 1147 (Usha Devi V.Rijwan Ahmad)]. Relying on the said decision, the learned counsel for the petitioner argued that the bar to allow the amendment after commencement of trial is not absolute and is only conditional. If the Court is convinced that in spite of due diligence, the party could not have raised the matter before the commencement of the trial, it is open to the trial Court to allow the amendment, which can be allowed by imposing suitable cost.
7.Per contra, the learned counsel for the respondents argued that even before the filing of the suit, petitioner was aware of the fact that the respondents are in possession and enjoyment of the suit property and they have fenced the suit property with stone pillars. In any event, the written statement was filed on 03.12.2010 itself, the respondents have stated that they are in possession and enjoyment of the suit property and they have put up stone pillars and fenced the suit property. After the commencement of the trial, the petitioner has filed the application for amendment. As per the proviso to Order 6 Rule 17 CPC, no application for amendment shall be allowed if the trial is commenced unless the courts below comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. For this proposition, the learned counsel for the respondents relied on an order of this Court, dated 29.11.2013, made in CRP(PD)No.1351 of 2013.
8.I have carefully considered the materials on record, pleadings, Judgments and arguments of learned counsel for petitioner and the respondents.
9.From the records, it is seen that in the written statement filed on 03.12.2010, the respondents have stated that they are in possession and enjoyment of the suit property, put up stone pillars and fenced the suit property. The petitioner was never in possession and enjoyment of the suit property. In spite of the same, the petitioner did not file any application for amendment of the plaint to include the prayer for mandatory injunction and for recovery of possession. This clearly shows that the petitioner was not diligent enough to assert his right as per the proviso to Order 6 Rule 17 C.P.C. After commencement of trial, amendment can be ordered only if the Court comes to the conclusion that in spite of due diligence, party could not have raised the matter in Court before the commencement of trial. But in the present case, the petitioner was not diligent to file an application for amendment of plaint to include the prayer of mandatory injunction and for recovery of possession. The two judgments referred to by the learned counsel for the petitioner do not advance the case of the petitioner. On the other hand, those two judgments and judgments relied on by the learned counsel for respondents advances the case of the respondents only. The learned Judge has applied the proviso to Order 6 Rule 17 CPC and has also considered the Judgments relied on before him in the proper perspective.
10.Hence, the impugned order does not warrant interference of this Court. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To The Additional District Munsif Court, Sankarankovil.