Madras High Court
M. Saminathan vs Vijayalakshmi on 5 February, 2007
Equivalent citations: 2007(2)CTC44, (2007)2MLJ393
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
ORDER S. Ashok Kumar, J.
1. The plaintiff/appellant pending the Appeal Suit No. 150 of 2003, filed the I.A.299 of 2005 under Order 6, Rule 17 CPC to amend the plaint relief from Permanent Injunction to one of Mandatory Injunction and the same has been dismissed by the learned Subordinate Judge, Kallakurichi. As against the same, the present revision has been filed.
2. The plaintiff in his petition stated that he purchased the suit property from one Perumal in the year 1993 under Ex.A.1 and constructed a terraced house. In the south eastern portion he has constructed a septic tank. Subsequent to his purchase, the respondent/defendant purchased the eastern property from the very same Perumal in the year 1994 under Ex.B.1. The defendant attempted to encroach upon the eastern portion of the plaintiff's property. Immediately he file d the suit claiming the relief of permanent injunction. Since caveat was pending, he was not able to get any interim relief. Taking advantage of the same, the defendant has put up his compound wall over the septic tank itself and the Advocate Commissioner, appointed by the Court found that the wall over his septic tank is a new one which is fortified by his report and plain in Exs.C.1 and C.2.
3. According to the plaintiff/appellant/revision petitioner, only after filing of the suit, the defendant put up the compound wall in his property. Having regard to the said fact, the trial court itself observed that the relief of permanent injunction is not open to the plaintiff and he should have prayed for the relief of mandatory injunction.
4. The defendant/respondent herein contested the said application stating that amendment of plaint at the appellate stage after period of limitation is not maintainable since the plaintiff was aware of the construction made by the defendant even about 11 years back.
5. The learned Subordinate Judge, Kallakurichi, dismissed the said amendment petition holding that even the trial court held that the wall was constructed by the defendant much earlier to the filing of the suit and he should have sought for the relief of mandatory injunction instead of permanent injunction, yet knowing this fact, he filed the suit for permanent injunction and only after 11 years at the appellate stage he filed the amendment petition which is not maintainable under Order 6 Rule 17 CPC. Challenging the same, this revision has been filed.
6. Learned Counsel for the revision petitioner/plaintiff contended that the observation of the trial court that the suit was filed after construction of the compound wall is not based on any evidence or pleadings and even a cursory glance of the written statement filed by the defendant would vouchsafe the same. He also relied on the decision of this Court reported in 2002 (4) CTC 257 in support of his contention that amendment of pleadings can be done at any stage of the proceedings and the plea of limitation cannot stand in the way of allowing such amendment if the particular facts and circumstances of the case so warrants to subserve ultimate justice.
7. On the other hand, learned Counsel for the respondent/defendant contended that it is the plaintiff who encroached to a length of 1 1/2 feet by constructing a septic tank, that the defendant constructed bath room, latrine and wall only within her property and the construction was complete even prior to the filing of the suit. The Advocate Commissioner inspected the suit property as early as on 7.11.1994 and filed his report that the construction alleged by the plaintiff was already complete. The trial court rightly dismissed the suit finding that there is no encroachment by the defendant. The Interlocutory Application filed by the plaintiff at the appellate stage is time bared and the proposed amendment would completely alter the nature and character of the suit apart from taking away the right accrued to her and the same has been rightly negatived by the appellate court.
8. I have heard the rival submission of both the learned Counsels. Admittedly, the trial court also taking note of the Advocate Commissioner's report and plan, came to the conclusion that the defendant had not encroached any portion of the plaintiff's property, that the defendant had put up construction only within her property limits, and therefore the suit for bare injunction is not maintainable in view of the fact that the construction was complete even prior to the suit and thereby dismissed the suit. Against which, the plaintiff filed the Appeal Suit and pending the appeal, he filed the I.A., for amendment of the prayer in the suit from one of permanent injunction to mandatory injunction. It is also not in dispute that the Advocate Commissioner appointed by the trial court after inspection found that there is no encroachment by the defendant and the compound wall is a old one which means that the wall has been constructed even prior to the institution of the suit. The trial court also observed that even at the time of construction of septic tank by the plaintiff abutting his property limit, the defendant objected the same and the plaintiff permitted her to constructed the wall on the septic tank.
9. As regards limitation also though there are case laws to the effect that the courts should not look into the aspect of limitation to sub-serve ultimate justice to the parties and to avoid multiplicity of proceedings while dealing with applications under Order 6, Rule 17 CPC, and amendment can be allowed at any stage of the proceedings, the same cannot be taken as an yardstick to apply to all cases as there is no strait jacket formula and the exercise of discretion of the court cannot be disputed. Therefore, taking into consideration of the facts and circumstances of the present case, this Court is of the considered view that the amendment sought for in the present case to amend the very prayer in the plaint viz., instead of permanent injunction to mandatory injunction, cannot be allowed since, if the same is allowed, it would greatly prejudice the defendant and take away the valuable right accrued to the defendant. Apart from that as rightly contended by the learned Counsel for the defendant it alters the very nature and character of the suit.
10. In , (Ganesh Rai and Anr. v. First Addl.District Judge, Ghaziupr and Ors.) it has been held as follows:
It is settled that amendment necessary for the purpose of determining the real questions in controversy can be allowed. No amendment should be allowed merely because the other side can be compensated by costs. Where a party has been unsuccessful on a plea, a new plea by him cannot be said to be necessary for the purpose of determining the real question in controversy. It is incumbent upon the Court to see that amendment besides being necessary for the purpose of determining the real matter in controversy must not cause injustice to the other side. Under the cover of seeking amendment it s not open to any party to substitute a new cause of action or to change the nature of the suit or to substitute the subject matter of the suit except when the court thinks it just and necessary. Further, a new case based upon the facts which were available to the plaintiff at the time of the original plaint and which were not added in the original plaint, cannot be permitted to be set up by way of amendment at appellate stage. So also, where a fresh suit on an amended plaint would be barred by limitation, the court is right in taking the view that the injury cannot be compensated by costs an the amendment in such circumstances deserves to be refused.
In the present case also construction of compound wall even prior to the institution of the suit as found by the trial court based on evidence, cannot be said to be a new fact after filing of the Plaint and the same cannot be permitted to be set up by way of amendment at appellate stage.
11. Learned Counsel for the respondent also relied on the judgment (Faqir Chand through LRs. v. Lila Ram through LRs.) wherein the Delhi High Court held that limitation of three years under Art.113 will apply for filing suit for seeking mandatory injunction. In the present case as alleged by the respondent, there is a delay of 11 years in seeking the amendment to convert the suit as one of mandatory injunction.
12. In AIR 1983 SC 452 (Krothapalli Satyanarayana v. Koganti Ramaiah and Ors.) a Division Bench of the Andhra Pradesh High Court in an identical case, held thus:
Where the defendant had constructed the wall in the passage used as lane for passing and respassing by the plaintiff and also by dumping some earth in the passage obstructed the plaintiff from passing and repassing with cattle and carts from the lane, and the plaintiff approached the court after 9 years from his knowledge as to the construction of wall and even in that year he did not seek the prayer for removal of wall which prayer was for the fist time introduced 4 years thereafter, the court declined to direct the defendant to remove the wall and clear the passage of encroachment as the plaintiff was guilty of acquiescence.
In the case on hand also, the plaintiff is guilty of acquiescence since he was very well aware of the fact of beginning of construction even at the time of institution of the suit.
13. The decision of this Court in 2002(4) CTC 257 relied upon by the learned Counsel for the revision petitioner is to the effect that in the second appeal stage an amendment to the plaint seeking for mesne profits can be allowed as such amendment ought to be allowed as objects of courts and rules of procedure are to decide the rights of the parties and not to punish them. This decision is not helpful as the relief of mesne profits has been granted by this Court as a consequential and additional relief while confirming the decrees of the trial court as well as appellate court in the Second Appeal.
14. So also, the decision of the Apex Court in (Lakhi Ram (dead) through LRs. v. Trikha Ram and Ors., wherein the Apex Court granted to introduce the averment regarding his readiness and willingness to perform his part of the contract in a specific performance suit, at the appellate stage, as the same does not change the cause of action. But such is not the case here. The other decisions relied on by the learned Counsel for the revision petitioner are also on different set of facts and law and the same are distinguishable.
15. For the reasons stated above, this CRP is dismissed confirming the order of the lower court. Consequently connected Miscellaneous Petition is also dismissed. No costs.