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2006 Supreme(Mad) 2305
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
Sengottuvel & Another - Appellant
Versus
Ponnuvel & Another - Respondents
C.R.P.(PD) No.1432 of 2005
Decided On : 06 September 2006
The court emphasized the need to determine the real question in controversy between the parties to do substantial justice and to avoid uncalled-for multiplicity of litigation when considering amendment applications.
Headnote:
Amendment - Property Dispute - Thiru Alankadu Immudi Ahora Dharma Sivachariar Aiyra Vaisya Madam vs. Udumalpet Samayapuram Ayira Vaisya Sangam, B.K.Narayana Pillai vs. Parameswaran Pillai, Om Prakash Gupta vs. Ranbir B.Goyal, K.Shanmugam vs. S. Lakshmi Ammal
Fact of the Case:
The plaintiff filed a suit for declaration of his right to use and for permanent injunction in respect of a cart track. The defendants prevented the plaintiff from having access to the cart-track and put up a wall over the cart-track, leading to the plaintiff filing an application for amendment of the plaint.
Finding of the Court:
The court allowed the amendment application, considering that the rights of the parties in respect of the cart-track and the wall could be determined at the time of trial and that it was premature to decide the rights of the parties while deciding the amendment petition.
Issues: The main issue was whether the amendment sought to introduce a new case or cause of action, and whether it would alter the nature of the suit.
Ratio Decidendi: The court considered various guidelines and legal principles related to allowing amendments, including the need to determine the real question in controversy between the parties to do substantial justice, the power to take note of subsequent events and mold the relief accordingly, and the purpose of avoiding uncalled-for multiplicity of litigation.
Final Decision: The Civil Revision Petition was dismissed, and the court upheld the lower court's decision to allow the amendment application.
Civil Revision Petition filed against the order dated 30.06.2005 passed by the First Additional District Munsif, Salem in I.A.No.376 of 2005 in O.S.No.438 of 2003, allowing the amendment petition.
2. The brief facts leading to the filing of the Civil Revision Petition are as follows: -
(i) The plaintiff, who is the first respondent in the Revision Petition has filed the suit for declaration of his right to use and for permanent injunction, in respect of cart track. The petitioners 1 and 2 are defendants in the suit. The case of the plaintiff is that he is the owner of the property described as item no.1 in the schedule, pursuant to a deed of partition dated 29.4.1986, registered as document No.477/86. The property described as item no.2 belong to him by virtue of a Will dated 26.6.1992, registered as document No.21/92, executed by his father. The plaintiff is in continuous possession of item no.1 of the suit property, since 29.4.1986 and is also in possession of item no.2 of the suit property from 10.4.1993, after the death of his father. There is a trunk road from Salem to Thiruchengode, on the north – south of the suit property. There is a cart-track, which branches from the said main road towards east, and it runs through the northern extremity of Survey Nos.200/6, 200/9, 200/7, 200/8, 200/9, 200/10, 201/6 and 201/7 of Bairoji village. The said cart-track proceeds towards Bairoji lake and the village of Pudupalayam. The land in Survey No.197 belongs to the 4th defendant. The land situated on the north of cart-track in Survey No.197 belongs to the plaintiff and to the defendants 1 and 2 and the Survey Field Number for the same is 196.
(ii) The plaintiff and his predecessors in title have been using the cart-track from time immemorial, continuously and the plaintiff has prescriptive title by easement. He has to take agricultural produce, mud, manure and cattle only though the cart-track. The said cart-track is the only way to reach Bairoji lake as well as Pudupalayam village.
(iii) The defendants 1 and 2, who are inimically disposed off prevented the plaintiff from having access to this cart–track especially in “BC” portion, which runs through Survey Nos.200/1 and 200/9. The cart-track is shown as “ABCDE” in the sketch annexed to the plaint. On 28.6.2003, defendants 1 to 3 along with rowdy elements prevented him from having access to the cart-track. Since the plaintiff has no other ingress and egress to his property and as much as he has prescriptive title by easement for over a statutory period, he has chosen to file a suit for declaration of his right to use and enjoyment of cart-track and for a permanent injunction restraining the defendants 1 to 3 from interfering with his peaceful possession and enjoyment of the cart–track.
(iv) The petitioner filed a written statement contending inter alia that the plaintiff has no right over the cart–track and that it is a private cart- track of the defendants. The defendants also denied the right said to have been enjoyed by the plaintiff over the cart-track. According to them, the cart– track runs through the defendants' land and that the plaintiff is not using the cart-track. The defendants denied the allegations said to have taken place on 28.6.2003 and had prayed for dismissal of the suit.
3. Pending disposal of the suit, an injunction was granted in favour of the plaintiff in I.A.No.905/2003, which was made absolute. In I.A.No.906/2003, an Advocate Commissioner was appointed to find out the location of the suit cart-track. The said Advocate Commissioner visited the suit property on 30.7.2003 and submitted a report in August 2003, along with the sketch.
4. The plaintiff further contended that since the injunction order was against all the members of the defendants' family, they adopted a circuitous method of causing obstruction to the plaintiff from using Survey No.119/1 of Bairoji village. The plaintiff has obtained Encumbrance Certificate, which shows that S.No.119/01 was
