Madras High Court
K.Anandakumar vs B.Ponnumani on 20 March, 2019
Author: S.Ramathilagam
Bench: S.Ramathilagam
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH
COURT
DATED: 20.03.2019
CORAM
THE HONOURABLE MRS.JUSTICE S.RAMATHILAGAM
CRP(MD).No.2712 of 2018(PD)
and
C.M.P.(MD).No.11883 of 2018
K.Anandakumar ... Petitioner/Petitioner/Plaintiff
Vs.
1.B.Ponnumani
2.B.Vellimalai
3.B.Lakshmanan ... Respondents 1 to 3/Respondents
1 to 3/Defendants
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, against the fair and decreetal order
dated 10.10.2018 in I.A.No.685 of 2018 in O.S.No.167 of 2013
on the file of the Principal District Munsif Court, Dindigul.
For Petitioner : Mr.R.J.Karthick
For R1 and R3 : Mr.H.Lakshmi Shankar
For R2, R4 and R5: No appearance
http://www.judis.nic.in
2
ORDER
This Civil Revision Petition has been preferred against the fair and decreetal order dated 10.10.2018 in I.A.No.685 of 2018 in O.S.No.167 of 2013 on the file of the Principal District Munsif Court, Dindigul.
2.The revision petitioner herein, who is the plaintiff has filed an I.A., under Order 6 Rule 17 r/w Section 151 of C.P.C., for recovery of possession and to amend the plaint.
3.In the said I.A., the plaintiff has stated that he filed the suit for permanent injunction in respect of Survey No.123/45 and now, the suit property is in possession and enjoyment of the plaintiff. It is further stated that already an Advocate Commissioner was appointed to inspect the suit property and after completion of inspection, he has filed his report. Already the said suit was dismissed for non appearance of the plaintiff and thereafter, it was restored to file.
4.The contention raised by the plaintiff in the I.A is that during first week of July 2011, the defendants made http://www.judis.nic.in 3 construction in the suit property taking advantage of the absence of the plaintiff. Hence, the plaintiff seeks to demolish the construction made by the defendants and the plaint has to be amended for the relief of Mandatory Injunction and also for possession of the suit property. Therefore, the plaintiff sought for amendment with regard to the relief of mandatory injunction and for delivery of possession.
5.The respondents/defendants has filed their counter statement stating that filing of I.A has totally changed the cause of action itself and no document has been filed by the plaintiff for the relief of mandatory injunction. As the trial has been commenced, the present I.A filed by the petitioner/plaintiff belatedly. When the Advocate Commissioner has filed his report as early as in the year 2011 itself, the filing of the present I.A by the petitioner in the year 2018 belatedly is not a genuine one.
6.The trial Court after observing the contentions raised by both sides and considering the fact that when the defendants made construction during the year 2011, the http://www.judis.nic.in 4 plaintiff has filed a petition to remove and demolish the said construction and after 7 years the said I.A has been filed to amend the plaint, which is barred by limitation, as it is filed beyond three years and only with an intention to drag on the proceedings, the plaintiff has filed the present I.A., dismissed the same.
7.Aggrieved against the said order, the present Civil Revision Petition has been filed by stating that the reasons stated by the trial Court is not a fair one and the limitation is a question of law and it has to be decided only by way of trial. When there is an encroachment made by the defendant by way of making construction in the suit property, the relief sought by the plaintiff by way of amendment is very much essential. Therefore, the dismissal of the said application does not a fair and perfect order.
8.The learned counsel appearing for the respondent has relied upon the order of this Court in the case of S.AHAMED MEERAN VS. S.KUMARASWAMY reported in 2006(1)CTC 55, wherein it is held that no application for amendment can http://www.judis.nic.in 5 be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. The relevant portions are extracted hereunder:
“19.Order 6, Rule 17, C.P.C., has been amended by the C.P.C., Amendment Act with effect from 1.7.2002. A new proviso has been added to the rule, namely that no application for amendment of the pleadings shall be allowed after the trial has commenced, unless the Court come to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of Trial. In Kasiappa Gounder, S/o.Manthiriappa Gounder, Periya Thadagam, Verapandi, Coimbatore Taluk, 2005(3) CTC 412 and P.Subba Naicker v. Veluchamy Naicker and three others, 2004 (1) CTC 742, this Court has held that after the Trial of the case, no application for Amendment of the pleadings shall be allowed. In the decision Rethinam alias Anna Samuthiram Ammal Vs. Syed Abdul Rahim, 2005(3) CTC 321, P.K.Misra, J. referring to Section 16 of the Code of Civil Procedure (Amendment) Act 2002, held that in respect of the Plaint or Written Statement filed before 1.7.2002, the Proviso to Order 6, Rule 17, C.P.C would have no applicability. In the said http://www.judis.nic.in 6 decision, the learned Judge has held:
“6.Section 16 of the Code of Civil Procedure (Amendment) Act, 2002, contains provisions relating to Repeal and Savings. Provision under Section 16, so far as relevant for the present purpose, is as follows:
“16.Repeal and Savings._(1).............. (2)..................
(a)
(b)the, provisions of Rules 5, 15, 17 and 18 of Order 6 of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c)..........
The aforesaid provision makes it clear that the provisions of Order 6, Rule 17, which had been omitted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and which had been inserted by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 shall not apply to http://www.judis.nic.in 7 in respect of any pleadings filed before the commencement, of Section 16 of the Code of Civil Procedure (Amendment) Act 1999 and Section 7 of the Code of Civil Procedure (Amendment) Act 2002. As already indicated, the Code of Civil Procedure (Amendment) Act 1999 and the Code of Civil Procedure (Amendment) Act 2002 came into force with effect from 1.7.2002. From the bare reading of the provisions contained in Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002, it is clear that such amended provision as contained in proviso shall not apply to in respect of any pleadings filed before the commencement of the amended Code. Pleadings in this context obviously include the Plaint and Written Statement. Therefore, in respect of the Plaint or Written Statement filed before 1.7.2002, the proviso to Order 6, Rule 17, C.P.C., would have no applicability..........” Learned Single Judge has also expressed the view that Section 16 of the Code of Civil Procedure (Amendment) Act, 2002 was not brought to the notice of the Court in the case P.SUBBA NAICKER V. http://www.judis.nic.in 8 VELUCHAMY NAICKER AND THREE OTHERS, 2004(1) CTC 742. Considering the facts and circumstances of this case, this Court is not expressing any view on the contra views.
20.Suffice it to point out, that even de hors the Code of Civil Procedure (Amendment) Act, 2002, (the Proviso to Order 6 Rule 17 C.P.C.,) the Amendment application filed belatedly after the conclusion of the Trial cannot be entertained. In view of the conclusion of the Trial and other circumstances, valuable rights have been accrued to the contesting Defendants. By allowing the proposed Amendment, serious prejudice would be caused to the Defendants. Learned District Munsif has not taken note of the belated stage in which the Amendment Application was filed. The order directing to pay Rs. 1000 as costs would not compensate the serious prejudice caused to the Defendants. The Impugned Order suffers from material irregularity and is liable to be set aside.” http://www.judis.nic.in 9
9.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and also perused the materials placed before this Court.
10.The learned counsel appearing for the petitioner submitted that after completion of inspection made by the Advocate Commissioner, the encroachment has been made by way of construction and hence, the necessity arise for him to amend the relief in the original suit.
11.On the other hand, it is vehemently opposed by the respondents that those constructions were made in the suit property as early as in the year 2011, and thereafter nothing prevented him for taking steps, whereas, only after 7 years, the petitioner/plaintiff had filed the present I.A., that too, at the time of commencement of trial. The petitioner has not stated any reasons with regard to the constructions were made in the year 2011 and preferring such an amendment application during the time of trial, belatedly. When the original suit is for the relief of permanent injunction and the petitioner has not filed any objection to the Commissioner http://www.judis.nic.in 10 report, has filed the present I.A., is a belated one and hence, the order of the trial Court is very much reasonable.
12.In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.
20.03.2019 Index:Yes/No Internet:Yes/No Ns To
1.The Principal District Munsif Court, Dindigul.
2.The Record Keeper, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 11 S.RAMATHILAGAM, J.
Ns CRP(MD).No.2712 of 2018(PD) and C.M.P.(MD).No.11883 of 2018 20.03.2019 http://www.judis.nic.in