Amendment of plaint disallowed.

1. Plaintiff in O.S.No.566 of 1993 on the file of Additional District Munsifs Court, Bhavani is the revision petitioner herein.

2. The suit is one for permanent prohibitory injunction to restrain the defendants and their men from interfering with the existing cart track ‘A, B, C, D, E, F’ or altering the existing ‘A, B, C, D, E, F’ track thereby causing dominition of the extent in the blue marked portion in the plaint plan and directing defendants to pay the costs of the suit and afford such other necessary orders as the court may deem fit and proper.

3. In the body of the plaint, plaintiff has stated that there is a cart track ‘ABCDERF’ in the property as marked in the rough plan filed along with the plaint, which is the access to his property. In para.4 of the plaint it is further stated that defendants are also entitled as of right to use the ‘ABCDERF’ cart track by virtue of the recitals in the partition deed No.531 of 1974.

4. Reason for filing the suit was that defendants under the pretext of using the cart track are encroaching upon plaintiffs property. In para.5, it is further said that plaintiff is not preventing the defendants from using the red marked portion namely ‘ABCDERF’ cart track.

5. Written statement was filed by the defendants admitting that they are also entitled to make use of the cart track and they did not intend to widen the same as alleged in the plaint. It is also said that due to misunderstanding between parties, they were also compelled to file another suit as O.S.No.634 of 1993 before the same court. Cause of action for that suit was the attempt made by plaintiff to obliterate the cart track.

6. Nearly five years after filing written statement, petitioner filed I.A.No.219 of 1999 to amend the plaint. In the amendment application, plaintiff has stated that the cart track exclusively belongs to him and defendants have no manner of right to make use of the same and they have some other cart track for their use. he also wanted some other amendments to be incorporated in the plaint. In the affidavit in support of the application, he accused his advocate, who has drafted the plaint and said that the plaint was ill-drafted either due to the inability of counsel in understanding the case or by oversight and therefore the amendment is necessary.

7. The application was seriously opposed by the respondents and by the impugned order, the application was dismissed, which is challenged in this revision.

8. At the time of admission itself I heard the entire revision and I do not think that there is any merit in this case.

9. Under O.6, Rule 17, of the Code of Civil Procedure an amendment is to be allowed only for the purpose of determining the real questions in controversy between the parties. What is the right of defendants over the cart track is not a matter in controversy, since plaintiff himself admitted that they are entitled to make use of the same. The only controversy was that under the guise of making use of the cart track, defendants are attempting to interfere in the possession of plaintiff over the rest of his properties. That is denied by defendants. Regarding that allegation, he does not require any amendment.

10. In a recent decision of Honourable Supreme Court, Heera Lal v. Kalyan Lal , (1998)1 S.C.C. 278 their Lordships considered the question has to whether inconsistent plea could be incorporated by amendment, where admission could be allowed to be retracted in pleadings. In para.9 of the judgment, their Lordships held thus,

“9. Now, it is easy to visualize on the facts before this court in the said case that the defendant did not seek to go behind his admission that there was an agreement of 25.1.1991 between the parties but the nature of the agreement was sought to be explained by him by amending the written statement by submitting that it was not an agreement of sale as such but it was an agreement for development of land. The facts of the present case are entirely different and c