Madras High Court
K.A.K.Poovanathan vs Indrani on 13 March, 2023
Author: B.Pugalendhi
Bench: B.Pugalendhi
CRP(MD)No.2107 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
CRP(MD)No.2107 of 2022
and
CMP(MD)No.9723 of 2022
1.K.A.K.Poovanathan
2.Kalidasan : Petitioners
Vs.
1.Indrani
2.Rakkammal
3.Rajasekar
4.Balaguru
5.Rajeshwari
6.Chitradeevi
7.Alaguraja
8.Saravana Rani
9.Jagatheesvaran
10.Manoharan
1/15
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2107 of 2022
11.M.Murugan
12.R.Manonmani
13.N.Jayakumar
14.P.Sudhakannu
15.S.Ramanathan
16.A.Krishanan
17.A.Muthupandi
18.Subramanian
19.Stalin
20.Anbarasan
21.Marimuthu
22.Manjula
23.Santhiya
24.N.Jeyakodi
25.M.Jaya
26.S.Hemalatha
27.N.Arumugam
28.R.Balasubramanian
29.Mariselvam
30.Tamil Selvi
2/15
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2107 of 2022
31.Karthika
32.Baskaran
33.Palani Kumar
34.Saravanakumar
35.Dhansekar
Vairam (Died)
36.Gananathan
37.Santhanalakshmi
38.M.Murugesan Pillai
39.M.Sakthi Ganesan
40.M.Sivasubramaniam : Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India to call for the records relating to the fair and decreetal order dated
26.09.2022 passed by the District Munsif cum Judicial Magistrate Court,
Tiruppuvanam, in I.A.No.7 of 2022 in O.S.No.24 of 2019 and set aside the
same.
For Petitioners : Mr.J.John
For Respondents : Mr.K.Jagadeesan
*****
3/15
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2107 of 2022
ORDER
The petitioner, as plaintiff, has filed a suit in O.S.No.60 of 2014 before the District Munsif Court, Manamadurai, for the relief of declaration and injunction as against the defendants 1 to 35 and also for a declaration to declare the sale deeds of the defendants as null and void in respect of the suit schedule properties. By an administrative order, the suit has been transferred from the District Munsif Court, Manamadurai, to District Munsif Court, Tiruppuvanam and renumbered as O.S.No.24 of 2019 and pending at the stage of arguments. While so, the petitioner has filed an interlocutory application in I.A.No.7 of 2022 under Order 6 Rule 17 CPC to amend the prayer by including the relief of recovery of possession. The trial Court, by order dated 26.09.2022, dismissed this application and challenging the same, the petitioner / plaintiff has filed this revision petition.
2.Sum and substance, learned Counsel appearing for the petitioner made his submissions as follows:-
2.1.The suit properties are vacant sites and therefore, at the time of filing of suit, it was filed for declaration, injunction as against the defendants and also to declare the sale deeds as null and void. Pending the suit, the petitioner sought 4/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 for interim injunction in I.A.Nos.109, 110 of 2014, however, the same was dismissed by the trial Court. As against the same, the petitioner preferred C.M.A.No.5 of 2015 before the Sub Court, Sivagangai, which was also dismissed. Challenging the same, the petitioner has preferred C.R.P(MD)No.33 of 2017 before this Court and the same was dismissed on 29.01.2018, with a direction to the trial Court to conclude the trial within a period of three months.
2.2.Excepting the fourth defendant, all other defendants remained ex-
parte before the Court below and the defendants 19, 20, 23, 30 have attempted to put-up some constructions in the second item of the suit property in S.No. 34/1C1 to an extent of 5000 sq.ft., out of one acre. Therefore, the petitioner has lodged a complaint before the Executive Officer of Tiruppuvanam Panchayat, based on which, a notice was issued to the defendants 19, 20, 23, 30, to stop their work. Even thereafter, they resumed the construction activities and therefore, the petitioner has filed W.P(MD)No.18069 of 2016 to demolish the offending constructions put up in the second item of the suit property, wherein, this Court has directed the Executive Officer of Tiruppuvanam Panchayat to initiate action in accordance with law for demolishing the unauthorized constructions and also directed the parties to work out the remedy before the competent civil Court.
5/15https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 2.3.Dehors the order passed by this Court, the Tiruppuvanam Panchayat has granted building plan approval to the defendants on 07.06.2018 and also granted layout approval. Therefore, the same were challenged in W.P(MD)Nos. 13959 of 2018 & 13715 of 2019. This Court disposed of the said writ petitions, directing the parties to work out their remedy before the competent civil Court..
2.4.The petitioner, thereafter, filed the present interlocutory application in I.A.No.7 of 2022 for including the relief of mandatory injunction, recovery of possession as against the defendants, who have put up some constructions during the years 2019, 2020 & 2021. The said application was dismissed by the trial Court holding that the constructions were put up by the defendants 19, 20, 23, 30 in the year 2016 itself and as such, the relief now sought for is hit by limitation. The Court has also dismissed on the ground that the High Court has fixed a time limit in C.R.P(MD)No.428 of 2021, dated 25.10.2021, to dispose of the suit within a period of three months.
Therefore, he prayed for appropriate orders.
3.Learned Counsel appearing for the respondents, on the other hand, made his submissions in line with the impugned order passed by the trial Court. 6/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 He further submitted that the petitioner is aware of the constructions in the year 2016 itself, however, he has filed this application at the fag end of the trial only to drag on the proceedings. The suit was originally filed in the year 2014 and nobody prevented the petitioner from amending the relief in the suit at the relevant point of time itself. As rightly pointed out by the trial Court, the relief now sought for is hit by limitation and therefore, he prayed for dismissal.
4.This Court paid it's anxious consideration to the rival submissions and also to the materials placed on record.
5.The petitioner / plaintiff has filed a suit in O.S.No.60 of 2014 before the District Munsif Court, Manamadurai, for the relief of declaration, injunction as against the defendants and also to declare the documents which were registered in the name of the defendants as null and void. After the establishment of the Court at Tiruppuvanam, the suit was transferred to the file of the District Munsif Court, Tiruppuvanam and renumbered as O.S.No.24 of 2019.
6.Pending the suit, the petitioner has filed an application for interim injunction and the same was rejected by the Courts and a direction was issued by this Court for early disposal of the suit proceedings. It appears that pending 7/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 the proceedings, the petitioner has submitted a representation to the Executive Officer of Tiruppuvanam Panchayat that the defendants are attempting to put up some constructions in the disputed suit schedule property without any permission. The Tiruppuvanam Panchayat has also issued a stop work notice and this petitioner has filed a writ petition in W.P(MD)No.18069 of 2016 to conduct an enquiry and to demolish the unauthorized constructions, wherein, this Court has directed the Executive Officer of the Tiruppuvanam Panchayat to take action for demolition of unauthorized constructions.
7.The petitioner has also filed another writ petition in W.P(MD)Nos. 13959 of 2018 & 13715 of 2019, wherein, this Court has permitted the petitioner to work out his remedy before the civil Court. Thereafter, the petitioner has moved the interlocutory application in I.A.No.7 of 2022 under Order 6 Rule 17 CPC to amend the prayer by including the relief of mandatory injunction and recovery of possession. The same was rejected by the trial Court on the ground that the suit is at the stage of arguments and the application for amendment was filed at the fag end of the trial. The trial Court further held that though the petitioner came to know about the construction on 27.02.2016, he has filed the interlocutory application for amending the relief only in the year 2022, by which time, the three years limitation period has already been over. 8/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022
8.The Hon'ble Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd., & Another [2022 LiveLaw (SC) 729], has framed certain guidelines with regard to amendment as follows:-
“70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview.
The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived.
(ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and 9/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022
(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).
(iv) A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.
(vi) Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.
(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to 10/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897).”
9.The fact remains that the petitioner, pending the suit, has approached the Executive Officer of Tiruppuvanam Panchayat as well as this Court, right from the year 2016, that the defendants 19, 20, 23, 30 are attempting to put up 11/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022 some constructions in the suit schedule property. Stop work notice was issued by the Panchayat, direction was issued by this Court to take action against the unauthorized construction and thereafter, layout approval was granted. Taking note of these developments, this Court directed the petitioner to work out his remedy before the civil Court and accordingly, he has moved the interlocutory application for including the relief of mandatory injunction and recovery of possession. Therefore, it cannot be viewed that the relief now sought for is hit by limitation. To be noted, the petitioner has already sought for the relief of declaration and injunction and excepting the fourth defendant, all other defendants remained ex-parte before the trial Court.
10.For the foregoing reasonings and discussions and taking note of the ratio laid down by the Hon'ble Supreme Court in the Life Insurance Corporation of India's case (supra), this Court is inclined to interfere with the order impugned. Accordingly, the order dated 26.09.2022 passed by the learned District Munsif cum Judicial Magistrate, Tiruppuvanam, in I.A.No.7 of 2022 in O.S.No.24 of 2019, is hereby set aside and the petition in I.A.No.7 of 2022 is allowed.
12/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022
11.This Court, while entertaining the civil revision petition, by order dated 19.10.2022, has granted an order of interim stay of all further proceedings in the suit in O.S.No.24 of 2019 on the file of the District Munsif cum Judicial Magistrate Court, Tiruppuvanam. This order dated 19.10.2022 was also duly intimated to the trial Court by the petitioner's Counsel, by way of filing a memo on 20.10.2022. However, the trial Court has dismissed the suit for default on 27.10.2022 and it appears, now, the suit has been restored.
12.Learned Counsel for the petitioner represented that despite the order of interim stay granted by this Court and the memo filed by him, the trial Court has proceeded with the trial and dismissed the suit for default. Therefore, he is not having confidence to proceed with the trial before the District Munsif cum Judicial Magistrate Court, Tiruppuvanam and prayed for transferring the suit to some other Court.
13.On the representation made by the petitioner's Counsel, this Court has called for an explanation from the concerned District Munsif and the same was also received. The explanation offered by the learned District Munsif cum Judicial Magistrate, Tiruppuvanam, dated 08.11.2022, stands recorded. 13/15 https://www.mhc.tn.gov.in/judis CRP(MD)No.2107 of 2022
14.Considering the manner in which the case is being dealt with, this Court directs the Principal District Judge, Sivagangai, to transfer the suit in O.S.No.24 of 2019 from the file of the District Munsif cum Judicial Magistrate Court, Tiruppuvanam to any other Munsif Court in the District. The Transferee Court, on receipt of records from the District Munsif cum Judicial Magistrate Court, Tiruppuvanam, shall endeavor to expedite the proceedings and shall dispose of the suit as expeditiously as possible, preferably within a period of six months.
In fine, this civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petition stands closed.
Index : Yes / No 13.03.2023
gk
Note: Mark a copy of this order to
The Principal District Judge,
Sivagangai.
To
The District Munsif cum Judicial Magistrate,
Tiruppuvanam.
14/15
https://www.mhc.tn.gov.in/judis
CRP(MD)No.2107 of 2022
B.PUGALENDHI, J.
gk
CRP(MD)No.2107 of 2022
13.03.2023
15/15
https://www.mhc.tn.gov.in/judis