Madras High Court
P. Subba Naicker vs Veluchamy Naicker And Three Ors. on 24 December, 2003
Equivalent citations: 2004(1)CTC742
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. Aggrieved by the order of the learned District Munsif dated 12.8.2003, made in I.A.No. 681 of 2003 in O.S.No. 124 of 2002, refusing to amend his plaint, the petitioner/plaintiff has filed the present Revision under Article 227 of the Constitution of India.
2. The petitioner/plaintiff filed a civil suit in O.S.No. 124 of 2002 on the file of District Munsif, Koilpatti seeking a declaration that the suit second schedule property which is a path-way is common and for a consequential injunction restraining the respondents from transferring with his right to same as a path-way. The petitioner has also claimed that the suit third schedule property which is a open space was retained in common between them and the respondents and the same has to be used as a common area. According to the petitioner, he is entitled to light and air and to drain water from his house through the suit third schedule property and the channel situate thereon in to the street on the south. The respondents while admitting his right over the suit II schedule however, denied that the suit III schedule was kept as a common path-way. They claimed that the northern half belonged to him and the southern half belonged to them. They also admitted the petitioner's right of draining rain water. According to the petitioner, in view of the stand taken by the respondents he was advised to seek an amendment of the prayer in his plaint thereby introducing an alternative relief of easement over the suit III schedule. The said application was resisted by the respondents contending that petitioner cannot be allowed to claim both ownership and a right of easement. The learned District Munsif who heard the application, dismissed the application for amendment holding that the character of the suit is changed by the amendment. Against the said dismissal, the petitioner has filed the above revision under Article 227 of the Constitution of India.
3. Though it is contended that the proposed amendment in the plaint will not alter the cause of action or introduce a new plea, as rightly objected by the respondents, the petitioner cannot be allowed to claim both ownership and a right of easement. This aspect was rightly considered and rejected by the learned District Munsif. I am in agreement with the said conclusion and there is no ground for interference.
4. Apart from the above factual details, it is to be noted that after the Amendment Act, 2002 (which came into force with effect from 1.7.2002, no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Admittedly, the petition for amendment-I.A.681/2003 was filed only on 30.6.2003 i.e., well after the amendment Act, 2002. As a matter of fact, only when P.W.1 was in the witness box, the plaintiff thought of filing petition for amendment and filed the same on 30.6.2003. In the light of the proviso to Rule 17 of Order 6 of the Code of Civil Procedure and of the fact that the petitioner has not satisfied the Court that he is entitled to file such a petition even after the commencement of the trial, as rightly argued by the learned counsel for the respondent, the application for amendment is liable to be rejected. Even otherwise, I am satisfied with the reasoning of the learned District Munsif in dismissing the application for amendment.
5. In the light of what is stated above, I do not find any error or infirmity in the order impugned for interference; accordingly the Civil Revision Petition fails and the same is dismissed. No costs. Consequently, C.M.P.No. 17255 of 2003 is closed.