IMPORTANT POINTS
Without the amendments sought for being allowed, the suit would be rendered purposeless and otiose, particularly when the boundaries of the plaint schedule properties were not able to be identified even by the learned Advocate Commissioner. It is thus that the First Appellate Court has held that 'the lapse on the part of the plaintiffs' cannot be the sole ground disentitling from having the amendments allowed at the appellate stage, since otherwise, the real questions in controversy between the parties cannot be adjudicated or settled.

JUDGMENT :

The singular aspect on which this appeal pirouettes is if an Appellate Court can permit amendments to pleadings at the stage of appeal, in the face of the introduction of the proviso to Order VI Rule 17 of the Code of Civil Procedure (“CPC” for brevity hereinafter), through the amendment in the year, 2002.

2. The Appellate Court, in this case, allowed the application for amendment of the plaint and its schedule on the application of the plaintiffs, who had lost the suit; consequently, remanding the matter to the Trial Court for its fresh disposal, based on such amendment.

3. The order of the Appellate Court has been assailed by the defendants in the suit through this FAO, contending for the position that amendment to the pleadings, as now permitted by the Appellate Court, are impermissible after the proviso to Order VI Rule 17 of the CPC had been brought in through the CPC Amendment Act, 2002 (Act 22 of 2002); and wherefore that the order of remand for fresh disposal of the suit is untenable.

4. A quick glance through the most essential facts first would be necessary.

5. The respondents herein, who are the plaintiffs before the Munsiff's Court, Alathur, filed O.S.No.6/2009 against the defendants/appellants before this Court, under an apprehension that the latter are likely to trespass into the plaint schedule property and thus sought for a decree of perpetual prohibitive injunction against them.

6. For the sake of convenience and ease, I will hereinafter refer to the parties as they are ranked in the Suit.

7. According to the plaintiffs, the plaint schedule property originally belonged to late Sri.K.P.Velu under a partition deed, as per which, portions were set apart for himself and his son Sri.Sankaranarayanan. They say that a ceiling case had, thereafter, been initiated against Late.Sri.K.P.Velu before the Taluk Land Board, Alathur; and that he had surrendered certain extents of his property retaining the balance. They say that Sri.K.P.Velu died in the year 1976 and that during his life time, he had executed a registered Will, bequeathing all his properties in favour of his four daughters. The plaintiffs say that one and two among them are the sons of one of the daughters of Sri.K.P.Velu, while the 3rd among them is his elder daughter. They assert that defendants 1 to 3 do not have any rights over the plaint schedule property but are raising untenable claims over it, thus attempting to trespass into it, constraining them to have filed the Suit.

8. The plaintiffs concede that the defendants 1 to 3 are the successors-in-interest of Sri.Velayudhan, who obtained certain portions of the excess land surrendered by late K.P.Velu, through an assignment deed and that the same is situated adjacent to the plaint schedule property. They allege that the attempt of defendants 1 to 3 is to trespass into the plaint schedule property, taking advantage of the fact that it is situated conterminously to theirs and therefore, prayed that the Suit be decreed.

9. The defendants, who are the appellants in this FAO, filed a written statement contending to the contrary and specifically that the description and identity of the plaint schedule property is incorrect and vague. They contended that no such property is in existence and that neither late Sri.K.P.Velu or his family members have any right over the same after 01.01.1970, because it stood vested with the Government under the provisions of the Land Reforms Act. As regards their title, they contended that the 1st defendant's husband, late Sri.Velayudhan, had 'kudiyiruppu rights' over 53 cents of property; while late Sri.Kasu, who is the predecessor-in-interest of defendants 2 and 3, had tenancy rights over 52 cents of property lying on the south of late Sri.Velayudhan's holdings.

10. The defendants further say that the afore mentioned Sri.Velayudhan and Sri.Kasu had approached Land Tribunal, Alathur and had obtained assignment of the 'jenmam rights' of their respective areas, as per purchase cer