Madras High Court
A. Kumar vs P. Muthupandi And A. Perachi on 31 January, 2002
ORDER A. Ramamurth, J.
1. The defendant in O.S.No.297 of 2001 on the file of Principal District Munsif Court, Tuticorin, has preferred the revision petition aggrieved against the orders passed in I.A.No.1158 of 2001 in I.A.No.1067 of 2001 dated 03.09.2001.
2. The case in brief is as follows:- The respondents / plaintiffs filed a suit for permanent injunction against the 1st defendant restraining the 1st defendant from locating his liquor retail vending shop at door No.36/5 Pushpam Complex, Ettayapuram Road, Polenaickenpettai, Tuticorin, or any other building within 50 metres from the temple where the plaintiffs' worship. The plaintiffs also filed I.A.1067 of 2001 to claim an order of temporary injunction. The defendant filed a counter and opposed the application, wherein it is stated that the shop was opened on 02.08.2001 itself.
3. The petitioners / plaintiffs filed I.A.1158 of 2001 alleging that the suit was filed on 02.08.2001 and obtained interim injunction; but, however, on 04.08.2001, the respondent obtained an antidated licence and immediately opened the shop. The plaintiffs originally filed the petition to restrain the first defendant from opening liquor retail shop. Now, the prayer has to be amended to restrain the respondent from vending liquor within the vicinity of the temple in view of the changed circumstances and therefore sought permission to amend the prayer in I.A.No.1067 of 2001 as detailed therein as follows: "restraining the respondent from vending liquor in retail shop" instead of "restraining the respondent from opening liquor retail shop".
4. The first defendant filed a counter to the amendment application. The plaintiff has to file only a separate petition under Order 39 Rule 1 and 2 of Civil Procedure Code. Further, there is no such prayer in the suit already filed. The plaintiff cannot seek the relief or temporary or interim injunction when such relief cannot be granted in the suit. The allegation as if the amendment sought does not change the nature and character of the proceedings is false. The relief prayer is a distinctive relief. If amendment is allowed, the defendant will be put to irreparable hardship and injury.
5. The learned District Munsif after hearing the parties, allowed the application for amendment and aggrieved against this, the 1st defendant has come forward with the present revision petition.
6. Heard the learned counsel for the parties.
7. The points that arise for consideration are (1) Whether the order passed by the court below is proper and correct ? And (2) To what relief ?
8. Points: It is admitted that the respondents / plaintiffs filed a suit against defendants 1 to 6 to pass a decree of permanent injunction restraining the 1st defendant from locating his liquor retail vending shop at door No.36/5 Pushpam Complex, Ettayapuram Road, Polunaickenpettai, Tuticorin or in any other building within 50 metros from the temple where the plaintiffs' worship. The plaintiffs for themselves and as representatives of worshippers of Arulmighu Pothi Vinayagar Temple, Ettayapuram Road have filed the suit. They also filed I.A.No.1067 of 2001 claiming the order of temporary injunction pending disposal of the suit, reiterating the very same contentions. The revision petitioner / first defendant opposed the application and contended that the shop in question was already opened on 02.08.2001; but, however, the plaintiffs filed reply counter for the same and later filed I.A.No.1158 of 2001 for amendment of I.A.1067 of 2001 to permit them to amend the same that instead of restraining the 1st defendant from opening liquor retail shop, it should be amended as restraining the respondent from vending liquor in retail shop. The revision petitioner / first defendant filed a counter and contended that the petitioner has to file only separate petition under Order 39 Rule 1 and 2 of Civil Procedure Code for granting a relief and there is no such prayer in the suit itself. As such, the petitioner cannot seek the relief of temporary or interim injunction when such relief cannot be granted in the suit. The proposed amendment cannot be allowed. The learned District Munsif after hearing the parties allowed I.A.No.1158 of 2001 to amend the prayer in I.A.1067 of 2001, which necessitated the revision petitioner to file this revision petition.
9. Learned counsel for the revision petitioner / 1st defendant mainly contended that the trial court has no power or jurisdiction to order amendment of a prayer in an interlocutory application, which is beyond the scope of the relief prayed for. According to the learned counsel, the suit is one for bare injunction and this being so, there cannot be an order of temporary injunction restraining the 1st defendant from selling the liquor in the shop. In short, according to the learned counsel, there was no amendment of plaint and this being so, when such a relief cannot be granted to a party in the suit, such a relief cannot be granted to them in the interlocutory application.
10. The learned District Munsif allowed the amendment on the ground that as the shop was opened, in view of the subsequent event, it was allowed. He also pointed out that the amendment has to be allowed liberally to avoid delay in disposal of the matter. However, the learned counsel for the petitioner relied on the decision reporte3d in ABOOBUCKER ..vs.. KUNHAMOO (AIR 1958 MADRAS 287) that an interim relief granted during the pendency of a suit should not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to that relief.
11. Learned counsel also placed reliance on SREE JAIN SWETAMBAR TERAPANTHI VID (S) ..vs.. PHUNDAN SINGH AND OTHERS that "no relief should be granted in interlocutory proceedings beyond the scope of the suit. It may be noted that the present suit out of which the appeal has arisen was filed by the appellant Society for declaration and injunction". The analogy in this decision also can be made applicable to the case on hand. As adverted to, the main prayer in the suit was to restrain the 1st defendant and his men from locating the liquor shop in the particular place. Now, in view of the proposed amendment, it is evidently clear that interim order was sought for to restrain the 1st defendant from selling the liquor in the said place. Admittedly, there is no such prayer in the suit.
12. Learned counsel for the respondent relied on the decision reported in ESTRALLA RUBBER ..vs.. DASS ESTATE (P) LTD. under Order 6 Rule 17 of Civil Procedure Code, amendment of pleading by defendant ought to be allowed where purpose of proposed amendment is to elaborate the defence and take additional pleas in support of the case. There is no dispute about this principle, but it has no application to the case on hand.
13. Learned counsel also relied on the decision reported in RAGU THILAK D.JOHN ..vs.. S.RAYAPPAN AND OTHERS ((2001) 2 SCC 472) that the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that was sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made subject matter of the issue after allowing the amendment prayed for. There is no dispute about this principle and it has no application to the case on hand.
14. It is therefore evidently clear from the decisions cited and also discussion that when the relief in the main suit is one, a different relief cannot be sought for in the interim application. There is no prayer in the plaint that the 1st defendant should be restrained from selling liquor in the particular shop; but sought only permanent injunction restraining the 1st defendant from opening the liquor shop in a particular place. Under the circumstance, I am of the view that there is much force in the contention of the learned counsel for the petitioner. The court below has not properly appreciated the nice distinction relating to amendment of prayer in the petition while keeping the main prayer in the suit unamended. Moreover, the relief which cannot be granted as it is based upon the averments in the plaint, it cannot be granted as an interim relief also in the interlocutory application. Hence, I am of the view that the order passed by the court below is liable to be set aside.
15. For the reasons stated above, the revision petition is allowed and the order passed by the court below is set aside and I.A.1158 of 2001 is dismissed. However, it is made clear that if and when the plaintiffs moved an application for amendment of the plaint, it is open to the court below to consider the same and dispose it in accordance with law. No costs. Consequently, CMPs 21293 and 22410 of 2001 are closed.