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2014 Supreme(Mad) 4157
High Court of Judicature at Madras
K. RAVICHANDRABAABU, J.
K. Mayakannan & Another
Versus
S. Elumalai & Another
C.R.P.(PD).No. 3429 of 2014 & M.P.No.1 of 2014
Decided on: 19-11-2014
For the Petitioners:N. Suresh, Advocate.
For the Respondents:R1, S. Vijayakumar, Advocate, R2, No appearance.
Headnote:
Civil Procedure Code - Order 6 - Rule 17 - Peaceful possession enjoyment of suit property - Permanent injunction - Seeking for declaration of his title to suit property - Counsel appearing for petitioners submitted that admission made by plaintiff already in original plaint cannot be permitted to be taken away by allowing amendment - It is his further contention that while describing suit property in plaint schedule plaintiff has admitted that suit property lies property of first defendant and that it measures feet East to West on Northern feet on Southern side - Having made such description in suit schedule plaintiff cannot be permitted to alter same by way of amendment as such alteration would amount to withdrawal of admission already made by plaintiff - He further contended that first defendant has also filed a suit in against plaintiff in respect of disputed feet property wherein interim injunction is granted and therefore at this stage amendment ought not to have been allow - He further submitted that at most plaintiff can withdraw present suit and file a proper suit and however he is not entitled to file amendment petition - In support of his submissions he relied on decision of Honorable Supreme Court reported and decisions of this Court reported – Held, Other decision reported in relied on by counsel for petitioners is also not applicable to facts and circumstances of present case in view of fact that facts of said case before Honorable Supreme Court would disclose that defendant therein wanted to substitute original written statement with a fresh written statement which in effect is withdrawing admission made by defendant in favor of plaintiff in original written statement - Therefore it was found therein that any admission made by defendant in written statement should not be withdrawn - Other decision relied on by counsel for petitioners is reported in - A perusal of facts of that case would show that amendment was sought at stage of appeal by plaintiff who lost suit before trial Court - Therefore said decision is also not factually applicable to present case as admittedly present amendment is a pre-trial amendment - Court have already pointed out that description of suit property is sought to be altered by minor corrections and such description made originally cannot be construed as admission of rights of other side - Even otherwise it is contended by learned counsel for first respondent that amended description of suit property is supported by documents already filed by plaintiff along with original plaint and therefore contention of defendants that there is some admission by plaintiff is also not correct - In any event as defendants have an opportunity to file their written statement denying all contentions and claim made by plaintiff their rights are not at all prejudiced especially when present amendment is a pre-trial amendment which Court below has rightly considered and allowed with which court find no infirmity or irregularity - Civil Revision Petition dismissed
The defendants 1 and 2 are the revision petitioners herein. The first respondent as plaintiff filed O.S.No.373 of 2012 on the file of the District Munsif Court, Villupuram, seeking for declaration of his title to the suit property and for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property. The plaintiff filed an application under Order 6 Rule 17 CPC for amendment of the plaint only in respect of the description of the property referred to in the plaint schedule. The said application was resisted by the first defendant. The trial Court allowed the application by holding that it is pre-trial amendment and the defendants have not yet filed the written statement. The Court below further observed that granting of an amendment really subserves the ultimate cause of justice and avoids further litigation. Challenging the said order, the present Civil Revision Petition is filed by the petitioners-defendants 1 and 2.
2. Mr.N.Suresh, learned counsel appearing for the petitioners submitted that the admission made by the plaintiff already in the original plaint cannot be permitted to be taken away by allowing the amendment. It is his further contention that while describing the suit property in the plaint schedule, the plaintiff has admitted that the suit property lies West of the property of the first defendant and that it measures about 15 feet East to West on the Northern side and 13-1/2 feet on the Southern side. Having made such description in the suit schedule, the plaintiff cannot be permitted to alter the same by way of amendment, as such alteration would amount to withdrawal of admission already made by the plaintiff. He further contended that the first defendant has also filed a suit in O.S.No.110 of 2013 against the plaintiff in respect of the disputed 3 feet property wherein interim injunction is granted, and therefore, at this stage, the amendment ought not to have been allowed. He further submitted that at the most, the plaintiff can withdraw the present suit and file a proper suit and however, he is not entitled to file the amendment petition. In support of his submissions, he relied on the decision of the Honourable Supreme Court reported in 2013 (9) SCC 349 (S.Malla Reddy Vs. Future Builders Coop. Housing Society) and the decisions of this Court reported in 2013 (4) CTC 443 (Anthonysamy Vs. Christoraj) and 2013 (3) MWN (Civil) 13 (D.Lalitha and others Vs. Rangasan and others).
3. Per contra, Mr.S.Vijayakumar, learned counsel for the first respondent submitted that there is no admission made by the plaintiff as contended by the defendants. What is sought to be amended is only the boundaries and extent, that too in the description of the suit property in the plaint schedule. He further submitted that as the amendment is sought to be made at the pre-trial stage, the Court has rightly allowed the amendment, since pre-trial amendments are to be liberally considered and allowed. The defendants have not filed written statement so far, and therefore, their right is not at all prejudiced in any manner. Even if they have filed the written statement, yet they are entitled to file the additional written statement in pursuant to the amendment. It is further contended by the learned counsel for the first respondent that the amendment sought for by the plaintiff is supported by the suit documents filed already along with the original plaint, and therefore, the plaintiff has not introduced any new case.
4. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
5. The suit is one for declaration of title and for permanent injunction in respect of the suit property. While describing the suit property, the Western boundary of the same was described as "West of the property of the first defendant". Now, by way of amendment, the plaintiff wants to delete the said description and in its place, wants to add "West
