IMPORTANT POINT
The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends upon the factual background of that case

JUDGMENT :

R. NARAYANA PISHARADI, J.

1. The petitioner is the plaintiff and the respondents are the defendants in the suit O.S. No. 205/2011 on the file of the Munsiff's Court, Muvattupuzha.

2. The suit is instituted for granting a decree of declaration that the plaintiff has got right to get lateral support to the plaint B schedule way from the adjoining plaint D schedule property owned by the defendants. The plaintiff has also prayed for granting a decree of prohibitory injunction restraining the defendants from committing any act in the plaint D schedule property which would destroy the lateral support to the plaint B schedule way and also restraining the defendants from trespassing into the plaint E schedule property and constructing any way through that property.

3. The defendants filed written statement in the suit, raising also a counter claim. They contended that the plaintiff has got no right over the plaint B schedule way. By way of counter claim, they sought a decree of declaration that they have got right of easement by necessity over the property shown as item No. 2 in the schedule of the counter claim and also for granting a decree of mandatory injunction directing the plaintiff to remove the obstructions made by him in that property.

4. On 21.10.2015, the plaintiff filed an application as I.A No. 2761/2015 (Ext.P4) under Order VI Rule 17 of the Code of Civil Procedure, 1908 (for short ‘the Code’) for amendment of the plaint. By the proposed amendment of plaint, the plaintiff sought a decree of mandatory injunction directing the defendants to construct a wall in the plaint D schedule property for providing lateral support to the plaint B schedule way.

5. The defendants did not file any written objection to Ext.P4 application but contended before the court below that the relief of mandatory injunction sought by the plaintiff by the amendment of the plaint is barred by limitation.

6. As per Ext.P5 order, the trial court dismissed Ext.P4 application on the ground that, the relief of mandatory injunction claimed by the plaintiff by the proposed amendment of plaint, is barred by limitation.

7. The plaintiff has filed this original petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P5 order.

8. Heard learned counsel for the petitioner and also the respondents.

9. Learned counsel for the petitioner contended that it was an inadvertent omission on the part of the plaintiff to seek the relief of mandatory injunction and that the amendment of the plaint, if allowed, will cause no prejudice to the defendants. Learned counsel further contended that the proposed amendment will not change the nature and character of the suit.

10. Per contra, learned counsel for the respondents contended that the cause of action for seeking a decree of mandatory injunction had arisen before the institution of the suit and the amendment of the plaint, seeking a relief which is barred by limitation, cannot be allowed.

11. The suit was instituted on 05.04.2011. The application for amendment of the plaint was filed on 21.10.2015. As per the averments in the affidavit filed in support of the application for amendment, the cause of action for seeking the relief of mandatory injunction arose on 28.03.2011, when the defendants allegedly removed the soil from the plaint D schedule property thereby causing loss of lateral support to the plaint B schedule way.

12. Learned counsel for the respondents would contend that, as per Article 113 of the Limitation Act, the period of limitation for filing a suit for which no period of limitation is specifically provided, is three years from the date on which the right to sue accrues and therefore, the relief of mandatory injunction sought by the plaintiff is barred by limitation. Prima facie, in view of Article 113 of the Limitation Act, the relief of mandatory injunction claimed by the plaintiff by the proposed amendment of plaint is barred by limitation. However, one cannot