Madras High Court
K.M.Muthiah Ambalam vs M.Muthiah on 25 June, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/06/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.(MD) No.1705 of 2007 and M.P.(MD) No.1 of 2007 K.M.Muthiah Ambalam ... Petitioner vs. M.Muthiah ... Respondent PRAYER Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the order dated 12.10.2007 made in I.A. No.81 of 2007 in O.S. No.4 of 2006 on the file of the Court of the Subordinate Judge, Devakottai. !For Petitioner ... Mr.S.Raghu ^For Respondent ... Mr.B.Muruganandam * * * * * :JUDGMENT
The petitioner is the plaintiff in the suit. The suit has been filed for mandatory injunction based upon the registered partition deed dated 15.12.1970. It is the case of the petitioner that inspite of the said partition deed, the defendant has encroached upon the suit properties and hence he was constrained to file a suit in O.S. No.4 of 2006 on the file of the Court of the Subordinate Judge, Devakottai.
2. Pending the suit, the petitioner has filed an application for amendment under Order 6 Rule 17 on the ground that the description as mentioned in the plaint has been wrongly mentioned than it was mentioned in the registered partition deed. Therefore under those circumstances, the petitioner filed the said application in I.A. No.81 of 2007 to amend the plaint in so far as the description is concerned. The said application has been opposed by the respondent stating that the petitioner is trying to introduce a new case. The Court below has dismissed the application of the petitioner by holding it is impermissible to allow amendment by changing the description of the suit properties.
3. Considering the facts and circumstance of the case, this Court is of the view that a mere change of the description of the suit property, no prejudice would be caused to the respondent. In the present case on hand, the petitioner seeks his relief based upon the registered partition deed. It is the specific case of the petitioner that contrary to the registered partition deed the respondent has encroached upon the shop allotted to the petitioner. Therefore this Court is of the opinion that there is no change in the cause of action and when the petitioner has stated that there is mistake in the suit properties, amendment ought to have been made. It has been held in the Judgment reported in 2008 2 CTC 224 in Puran Ram vs. Bhaguram and another that even a mistake in the agreement relating to the description of the suit property can be allowed by filing an application under Order 6 Rule 17. The Hon'ble supreme Court has further held that an amendment of plaint relating to the description of the property will have to be allowed in the normal circumstance. Similarly in 2008 3 MLJ 287 Ushadevi vs. Rijwan and others, the Hon'ble Supreme Court has held that the proposed amendment relating to the correction of the description of the suit property will have to be allowed. Therefore considering the above said Judgment of the Hon'ble Supreme Court, this Court is of the view that the revision filed by the petitioner will have to allowed.
4. The petitioner relied on the Judgment reported in 2002 1 MLJ 758, AIR 2009 SSC 1177 and 1995 (II) CTC 196 to contend that under the guise of amendment a new case cannot be substituted. It is seen that on perusal of the said Judgment reported in 2002 1 MLJ 758 Karuppusamu vs. Saravandevi @ Vasanthamani and others, the Hon'ble High Court has held that a new case cannot be substituted but in the present case on hand, the cause of action remains the same and no new new case is sought for by the petitioner since the petition only relies upon the registered partition deed to substantiate his case. Similarly in the Judgment reported in AIR 2009 SSC 1177 the Hon'ble High Court has held that the Court must be extremely liberal in granting the prayer for amendment. It is further held that rejecting an amendment which is required would result in irreparable loss and injury to the party concerned. Therefore the Judgment relied upon by the learned counsel for the respondent in fact supports the case of the petitioner. In the Judgment reported in 1995 (II) CTC 196 an amendment is sought for from mandatory injunction to declaration and possession. Therefore on the facts and circumstances of the case, the Hon'ble High court has held, such an amendment cannot be allowed.
5. Hence taking into consideration of the above said facts the revision filed by the petitioner is hereby allowed. However in view of the fact that the suit has been filed as early as on 07.11.2005, the Trial court is directed to dispose of the suit within a period of four months form the date of receipt of the copy of this order. The respondent is granted four weeks time from the date of receipt of copy of this order to file his additional written statement if any. Consequently the connected miscellaneous petition is closed. No costs.
cs To The Learned Subordinate Judge, Devakottai.