Madras High Court
Perumayee vs Jayarama Gounder on 3 February, 1995
Equivalent citations: (1995)2MLJ363
ORDER Janarthanam, J.
1.The revision petitioner is the defendant, while the respondent is the plaintiff in the suit.
2. The plaintiff filed the suit in O.S. No. 367 of 1989 on the file of District Munsif, Athur seeking the relief of mandatory injunction for the restoration of the mamool cart track, which was in existence, having been obliterated by the defendant.
3. The plaintiff would claim that he purchased the lands in S. Nos. 127/1B2 and 127/3 of Oonathur village from one Arumugham Chettiar, by registered sale deed dated 13.6.1989. The defendant was a competitor for the purchase of those lands and somehow or other, the plaintiff got the sale deed of those lands in his favour. The aggrieved defendant therefore obliterated the mamool cart track, which was passing through his land in S. No. 127/4 (western portion) in order to spite the plaintiff. Consequently, the plaintiff was impelled to resort to the initiation of the proceedings before Court praying for the aforesaid relief.
4. The defendant resisted the claim of the plaintiff by filing written statement, contending that to say that there was a mamool cart track in existence passing through the land of the plaintiff and that the same had been subsequently obliterated by her is shorn of reality of the situation and that therefore, the relief, as prayed for in the suit, is incapable of being granted.
5. When the suit became ripe for trial, the plaintiff filed I.A. No. 1388 of 1994 under 0.6, Rule 17 of the Code of Civil Procedure praying for amendment of the pleadings to the effect that his predecessor- in-title had been enjoying the cart track for well over fifty years, thereby prescribing a right of easement in their favour and that apart, the said cart track was the only cart track, through which ingress and egress could be made to the plaintiff s lands as an easement of necessity.
6. The amendments prayed for had been stoutly resisted by the defendant contending that the same, if allowed, would change the character and nature of the suit, besides introducing a new cause of action.
7. The Court below, on consideration of the materials, however, allowed the amendment as prayed for, giving rise to the present action.
8. The defendant also filed C.M.P. No. 18897 of 1994 praying for stay of all further proceedings, pending disposal of the revision.
9. Even at the outset, I may point out that there are absolutely no merits for the entertainment of this revision. Axiomatic a proposition of law it is that the change of character or nature of the suit cannot be a ground for disallowing the amendment as prayed for. Of course, the change of subject matter of suit or cause of action may be relevant consideration for disallowing the amendment as prayed for. But, in the case on hand, there is no change of the subject mater of the suit. It cannot also be stated that the cause of action also got altered or changed by the allowing of the amendment, as prayed for. The cause of action, arose when the defendant was stated to have obliterated the so-called mamool cart track and denied the ingress and egress to the plaintiff for reaching his land. Of course, the plaintiff had come forward with the amendment belatedly. The party should not suffer by such delay or laches and substantial justice must be rendered to them, by giving them full and free opportunity of pleading their cause before court. That perhaps was the reason for the Court below to have allowed the amendment prayed for. Thus, there is no illegality; much less any irregularity in the order, impugned calling for interference.
10. The revision petition, as such deserves to be dismissed even at the admission stage and the same is accordingly dismissed. Consequently, C.M.P. is also dismissed.