Madras High Court
Muniswami vs M.Manickam on 27 June, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27 .06.2008
CORAM:
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
C.R.P.No.1355 of 2006
M.P.No.1 of 2006
Muniswami ... Petitioner
Versus
1.M.Manickam
2.Mani
3.Karunakaran
4.Kumar ... Respondents
(Respondents 2 to 4 are not
necessary parties and they
are given up in C.R.P.)
Civil Revision Petition is filed under Article 227 of the Constitution of India against the fair and decretal order dated 28.07.2006 made in I.A.No.363 of 2006 in O.S.No.79 of 2003 on the file of the District Munsif, Sholinghur.
For Petitioner : Mr.P.Gururamachandran
For Respondents : Mr.R.Margabandhu for R-1
O R D E R
Challenging the fair and decretal order dated 28.07.2006 and made in I.A.No.363 of 2006 in O.S.No.79 of 2003 on the file of the District Munsif, Sholinghur, this Civil Revision Petition is filed.
2. Brief facts which are necessary for the disposal of the Civil Revision Petition are as follows:
The first respondent has filed O.S.No.79 of 2003 on the file of the District Munsif, Sholinghur seeking for a declaration and permanent injunction restraining petitioner and respondents 2 to 4 herein, from interfering with his peaceful possession and enjoyment of suit properties and for cost and other reliefs. According to the first respondent, the common Well described in the suit schedule, belongs to him and his two elder brothers viz. Gopal Reddy and Ganesa Reddy. All of them are in joint possession and enjoyment of the suit common well. The first respondent and his brothers have divided their joint family properties orally and since then they are in possession and enjoyment of their respective shares including the common Well. There was no sufficient water in the Well fitted with an electric motor pumpset and in order to cultivate loads in S.F.No.359/2B, the first respondent/plaintiff shifted the electricity service connection bearing S.C.No.60 from the said well to the suit well situated in S.F.No.359/2C, by obtaining necessary permission from the Tamil Nadu Electricity Board.
3. Pending suit, to rectify the mistake caused due to oversight in the pleadings, the plaintiff filed an application in I.A.No.363 of 2006 under Order 6 Rule 17 C.P.C to amend the plaint by deleting the word "suit well" and sought for substitution of the word "Well in S.F.No.359/2-B" etc. Petitioner/first defendant filed his counter affidavit and contended that the application in I.A.No.363 of 2006 under Order 6 Rule 17 C.P.C to amend the plaint has been filed belatedly, which is against law. As regards the contention of the plaintiff that he has mistakenly mentioned the word "suit Well" instead of "Well in S.F.No.359/2B" etc. in the plaint due to oversight, the first defendant in his counter affidavit has objected that it is not believable. He has further contended that the amendment application has been filed only after filing of the written statement and therefore the same is liable to be dismissed.
4. After hearing the arguments advanced by both parties and perusing the documents, the learned District Munsif, Sholingur, Vellore allowed the application on the ground that if the petitioner is aggrieved by the amendment, it is open to him to file additional objections narrating his case. Aggrieved by the said order, this Civil Revision Petition is filed.
5. The learned counsel appearing for the revision petitioner would contend that the amendment sought for is highly belated and that it would change the cause of action and the reliefs sought for in the plaint. Having filed the proof affidavit and subjected the witness for cross-examination the application is belated. To substantiate the above contention he relied on a judgment of this Court in D.Ramanujam vs. R.Panneerselvam reported in 2006 (3) CTC 27, wherein this court has held that when the trial had already commenced and if an amendment petition was filed, without giving any valid reason for not filing `the same before the commencement of trial, the same is liable to be rejected. The court further held that after trial has commenced, the court does not allow any amendment petition, unless the court is satisfied that inspite of due dilligence, the party could not have raised the matter earlier. He further contended that the plaintiff after having admitted that the suit Well as a common Well, cannot lateron claim exclusive ownership of the same by way of amendment, which would amount to change of cause of action and nature of the case. For the above reasons, he prayed for rejection of the amendment.
6. Per contra, learned counsel appearing for the respondent would contend that it is well settled law that amendment with regard to the pleadings can be permitted, even at the stage of appeal. He would further contend that if the amendment sought for is not allowed, the respondent would be put to irreparable loss and hardship. On the other hand, it would be helpful to decide the dispute involved in the case. In support his above contention, he relied on a decision of this court, in S.Muthuraman (died) and two others vs. Dhanaradja and 11 others reported in 1999 (11) CTC 250.
7. It is seen from the material on record that the amendment sought for by the respondent is with regard to S.F. number etc. Of course proper survey number to the Well should have been noted before filing of the suit, but mere change of survey number would not alter the nature and character of the case. Even though the respondent in so many words has not explained reasons to amend the plaint, after the commencement of trial to the satisfaction of the Court, having regard to the fact change of survey number is not so material to alter the nature and character of the suit, and if sufficient opportunity is given to both parties to substantiate their case, the dispute raised in the suit would be resolved.
8. Therefore in the context of the rule,this court is of the view, that the trial court has rightly discussed the above points and allowed the application permitting the plaintiff to carry out the amendment. I do not find any valid reasons to interfere with the order of the lower court. Hence this civil revision petition is dismissed. No costs. Consequently the connected M.P.No.1 of 2006 is also dismissed. No costs.
27.6.2008 vk
Internet : Yes / No
Index : Yes/No
To
The District Munsif,
Sholinghur.
S. MANIKUMAR, J.
vk
Pre-delivery order in
C.R.P.PD.No.1355 of 2006
27.06.2008