Madras High Court
M.D.Pasupathy Lakshmanan vs Padmavathy on 4 November, 2020
Author: R. Tharani
Bench: R. Tharani
CRP(MD)No.43 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 24.06.2021
Delivered On : 12.11.2021
CORAM:
THE HONOURABLE MRS. JUSTICE R. THARANI
C.R.P.(PD)(MD).No.43 of 2021
and
C.M.P.(MD)No.393 of 2021
M.D.Pasupathy Lakshmanan,
Rep. Through its Power of attorney,
M.D.Annapoorani,
D.No.3/1, Selvavinayagar Kovil Street,
Kilaveerakava puram, Kila veerakava puram,
Kokirakulam,
Tirunelveli District 627 009. ... Petitioner
Vs.
1.Padmavathy
2.G.Manoharan
3.Kailasanathar Kovil
rep. Through
The Executive Officer,
Kokirakulam,
Tirunelveli District. ... Respondents
PRAYER: This Civil Revision Petition has been filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated 04.11.2020
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https://www.mhc.tn.gov.in/judis
CRP(MD)No.43 of 2021
passed in I.A.No.4 of 2020 in O.S.No.156 of 2012 on the file of the learned I
Additional District Munsif, Tirunelveli.
For Petitioner : Mr.V.Meenakshi Sundaram
For Respondents1 and 2 : Mr.H.Arumugam
For 3rd Respondent : Mr.C.Guhaseela Rupan
ORDER
This petition has been filed to set aside the order in I.A.No.4 of 2020 in O.S.No.156 of 2012 on the file of the learned I Additional District Munsif, Tirunelveli.
2.The petitioner herein is the plaintiff and the respondents herein are the defendants in the suit. The petitioner herein has filed a suit in O.S.No.156 of 2012, for mandatory injunction to remove the unauthorized encroachment and construction put up by the defendants 1 and 3 and for permanent injunction. Pending suit, the petitioner herein has filed a petition in I.A.No.4 of 2020 seeking permission to amend the plaint.
3.A Brief substance of the petition in I.A.No.4 of 2020 is as follows:
The plaintiff has filed the suit through his power agent. The suit was filed for mandatory injunction with regard to suit items A to C properties and for an order 2/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021 of permanent injunction against the third defendant. The written statement was filed by the defendants denying the title of the plaintiff and hence, it is necessary to implead a prayer for declaration. A portion of the property has to be recovered and a prayer to that effect is to be included and hence, an amendment is necessary.
4.Brief substance of the counter in I.A.No.4 of 2020 reads as follows:
The house of the defendant was constructed in the year 1944. The pathway wherein the windows and sunshade were constructed, belongs to the defendants. The house was constructed by the father of the defendants, one Jeganathan. The suit is bared by limitation. The amendment will change the entire nature of the suit. Already a petition to amend the suit was filed by the plaintiff and the petition was dismissed by the Court. The petitioner has come to the Court for the second time by seeking the same prayer. The defendant is 90 years old and only with a motive to drag on the matter, the petitioner has filed this petition.
5.After hearing both sides, the trial Court has dismissed the petition. Against which, the revision petitioner has preferred this Civil Revision Petition. 3/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021
6.On the side of the revision petitioner, it is stated that the nature of amendment is only to include a prayer for declaration of title as the same was disputed by the defendants. Instead of the second prayer for mandatory injunction, now the prayer has to be amended for recovery of possession, which is not barred by limitation on the date of filing of the petition. The earlier amendment petition was to amend the prayer and also to amend the schedule properties and the same was dismissed by the trial Court and challenging that earlier order, the petitioner has filed a revision petition in C.R.P.(MD)No.778 of 2018 before this Court. The dismissal of the petition will not preclude the right of plaintiff to file the present amendment petition in I.A.No.4 of 2020. The provision under Section 152 r/w. Order 6 Rule 17 of Civil Procedure Code, gives power to the civil Court to permit amendment in the post trial stage. 12 years limitation is available for seeking relief of recovery of possession and that the relief was not time barred at the time of filing of the petition.
7.On the side of the respondents, it is stated that the amendment petition was filed in the year 2020. The suit was filed in the year 2012. The third respondent is the Execution Officer of the temple and there is no encroachment on the property of the revision petitioner. The proposed amendment will take away the admissions 4/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021 made in the plaint. The nature of the suit will be altered. In the suit, it was admitted that there was a common lane. Now the petitioner want to take away the admission made in the plaint.
8.The learned counsel for the respondents would rely upon the judgment passed by the Hon'ble Supreme Court in the case of Ram Niranjan Kajaria and others v. Sheo Prakash Kajaria and others reported in 2015 2 SCC 203, wherein it is stated as follows:
“In the counter affidavit filed before this Court, defendant Nos.5 and 12 have stated as follows:
The alleged letter of 1956 allegedly issued by the widow of Mahabir Prasad used in the arbitration proceedings where she was not a party admitting relinquishment of the share of her husband and thereafter admitting such letter in the original pleading is not what the answering respondents want to resile and/or withdraw from but by the present amendment had only ought to explain the circumstances in which such letter has been written.”
9.On the side of the revision respondents, it is stated that the earlier prayer is for permanent injunction, now the prayer sought for is recovery of possession. The prayer now sought for is contradictory to the earlier prayer. The entire nature of 5/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021 the plaint will be changed. Already the petitioner has filed three amendment petitions. After eight years from the date of filing of the written statement, the petitioner wants to include a prayer for declaration of title. After contest, the first amendment petition and the second amendment petition were dismissed. The relief sought for is already barred by limitation. The petitioner has filed a Transfer Original Petition to drag on the case.
10.On the side of the revision petitioner, it is stated that to avoid multiplicity of cases, the amendment sought for has to be allowed. The second amendment petition was dismissed, merely because the first amendment petition was dismissed. Only when the amendment is allowed, the real dispute between the parties can be settled. The trial has not commenced.
11.It is seen that the plaint was amended on 22.03.2012. The written statement of the first defendant was filed on 09.07.2012. The written statement was filed by the third defendant in Augest 2012. In the written statement, the defendants have denied the title of the plaintiff. An advocate Commissioner has visited the suit property and has submitted his report and plan. On 09.10.2017, the petitioner has filed an amendment petition in I.A.No.238 of 2017 and the same was dismissed. 6/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021
12.In this petition, the petitioner wants to remove relief B in the plaint. In the original plaint, the prayer B is to direct the first respondent to remove the unauthorized encroachments 24.3 inch from south to north 4 inch from east to west. Now the petitioner wants to remove the prayer and to insert a prayer as follows:
“declaring that the plaint “B” schedule property absolutely belonged to the plaintiff; which forms part of the plaint schedule property and consequential relief of recovery of possession of the same to the plaintiff from the first defendant after removing the unauthorized encroachments made thereon, within a date to be fixed by this Honourable Court.
2.Add the following after “B” schedule.
“24'.3' feet x 4' feet – 97.2 sq. feet of land market value Rs. 10,000/-.
3.Delete the following words in para 9 in 4th line of the plaint after the work “ relief (b)” and before the word “ for the relief c” and add the following in that place.
“ valued at Rs.10,000/- and a Court fee of Rs.750/- is paid under Section 25(a)”
13.Already an amendment petition in I.A.No.238 of 2017 was filed and the same was dismissed on 14.12.2017. There is no explanation for the delay in 7/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021 filing the amendment petition. The amendment for including a prayer for declaration of title was already dismissed by the trial Court in I.A.No.238 of 2017. Then again the Revision petitioner has sought for the same relief in this petition.
14.In the original suit, the plaintiff sought for only a permanent injunction against the third defendant. Now the plaintiff want to amend the case for declaration of title and for recovery of possession. The plaintiff cannot take two contradictory stands in the same suit. The entire nature of the case may change by introducing this amendment. Though written statement questioning the ownership, was filed in the year 2012, the petitioner has not chosen to file the amendment petition within a reasonable time. The reason for the long delay of nine years in filing the amendment petition was not explained by the revision petitioner. There is no B schedule property in the original suit as on the date of filing of this petition. The second amendment sought for by the petitioner is regarding the B schedule property. When there is no B schedule property in the suit, there is no necessity for any such amendment. Since the earlier amendment petition in I.A.No.238 of 2017 was dismissed by the trial Court, the petitioner cannot raise the same issue again. Hence, the prayers sought for by the petitioner in I.A.No.4 of 2017 are not maintainable. 8/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021
15.In the above circumstances, this Civil Revision Petition is dismissed and the order passed in I.A.No.4 of 2020 in O.S.No.156 of 2012 on the file of the learned I Additional District Munsif, Tirunelveli is confirmed. No Costs. Consequently, connected miscellaneous petition is closed.
12.11.2021
Index :Yes/No
Internet :Yes/No
MRN
Note : In view of the present lock down owing to COVID – 19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.
To
1.The I Additional District Munsif, Tirunelveli.
9/10 https://www.mhc.tn.gov.in/judis CRP(MD)No.43 of 2021 R. THARANI,J.
Mrn C.R.P.(PD)(MD).No.43 of 2021 12.11.2021 10/10 https://www.mhc.tn.gov.in/judis