(Civil Revision Petition filed under Article 227 of the Constitution of India against the fair and decreetal order in I.A. No.623 of 2004 in O.S. No.113 of 2003 dated 16.02.2005 on the file of the District Munsiff’s Court, Cuddalore.)

The present Civil Revision Petition is filed against the fair and decreetal order in I.A. No.623 of 2004 in O.S. No.113 of 2003 dated 16.02.2005 on the file of the District Munsiff’s Court, Cuddalore.

2. The brief facts necessitated for disposal of this C.R.P. is as under:

The Plaintiff is the petitioner. The property described in the schedule belonged to one Anbazhagi, wife of S.K.Velayuda Mudaliar. The plaintiff purchased the said property from the said Anbazhagi on 18.10.1997 for a sum of Rs.66,000/-. The defendant is the respondent who is the owner of the Flat No.111 which is situated on the South of Kumar Salai, East of Plot No.112, West of Plot No.110 and North of Plot No.117. The defendant is an adjacent owner. The plaintiff is the owner of Plot Nos.112 and 117. According to the plaintiff, the defendant claims right over the disputed area i.e., a right to the extent of 30 feet in Plot No.117 which belonged to the plaintiff. Also, the defendant has been trying to raise a compound wall in the suit property. If the defendant is allowed to construct the compound wall, it would cause great inconvenience and it will also cause loss which could not be compensated at all. Hence, the plaintiff filed the suit and prayed to pass an order of permanent injunction as against the defendant and his men from interfering with the possession and enjoyment of the suit property by the plaintiff. The said plaint was filed in March 2003. The defendant filed the written statement on 23.06.2003 denying the allegation made in the plaint and also stated that he was in possession of the suit property. The plaintiff filed an I.A. No.623 of 2004 before the Principal District Munsif Court, Cuddalore for amendment of the plaint and prayer in the amendment plaint was for declaration and for possession of the suit property. The defendant, immediately filed a counter and resisted the I.A and contended that he has been in possession and enjoyment of the property from his purchase and the averment in the written statement also makes it clear to that effect. The defendant further stated that the plaintiff is not in possession at all at any point of time. The said I.A. was taken up by the lower Court and was dismissed on the ground that it was filed after the trial commenced and no proper reason was given for the belated filing of the amendment petition.

3. The learned counsel for the plaintiff submitted that the amendment was sought in respect of ancillary relief only and the matter relating to declaration of title is already in the original plaint and therefore there is no change of cause of action and the Court must see that there should not be multiplicity of proceedings. Further it is stated that there is no prejudice caused to the respondent and hence the Court below ought to have allowed the amendment. He also relied on the Supreme Court judgment reported in (2002) 4 CTC 189, in the case of Sampath Kumar Vs. Ayyakannu and Another.

4. The learned counsel for the respondent submitted that the plaintiff is never in possession of the property and it was also stated clearly in the written statement. The Trial Court also commenced the trial and only after the trial has been commenced, the amendment petition was filed and hence it is not sustainable in law.

5. We heard the counsel appearing for both the sides. Upon consideration of the statements and the reading of the impugned order on record, the points arise for consideration are:-

a) After commencement of the trial and after the examination of P.W.1, whether the amendment application filed, could be allowed?

b) In refusing the amendment is there any improper exercise of discretion warranting interference?

The following dates are very relevant for the purpose of this