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HIGH COURT OF JUDICATURE AT MADRAS
P.R. SHIVAKUMAR, J.
Chitra – Petitioner
Versus
Kannan – Respondent
C.R.P. (PD) No. 2560 of 2011 & M.P. No. 1 of 2011
Decided On : 30-01-2015
Tamil Nadu Court Fees and Suit Valuation Act 1955 - Section 27(c) - Limitation Act 1963 - Specific Relief Act - Section 34 – Civil Procedure Code - Order 6 - Rule 17 - Constitution of India, 1950 - Article 227 - Perpetual injunction - Peaceful possession and enjoyment of suit property - Immovable property - Petitioner herein is plaintiff in above said suit and respondent herein is sole defendant in said suit - Suit came to be filed by revision petitioner for a bare perpetual injunction not to interfere with her peaceful possession and enjoyment of suit property described in plaint schedule - Claim was based on plaint averment that she purchased property from rightful owner by a sale deed and that ever since purchase she had been in possession and enjoyment of same - No averment was found incorporated in plaint indicating that title of the plaintiff was in dispute - Hence suit was valued under Section 27(c) of Tamil Nadu Court Fees and Suit Valuation Act 1955 – Held, So far as enlargement of scope of suit and alleged alteration of nature of suit are concerned above said discussions shall be enough to demonstrate that there is no enlargement of scope of suit except elucidation of issue in controversy by seeking a specific prayer for declaration of title - Nature of suit does not get changed by introduction of prayer for declaration - Petitioner shall have to pay Court fee under Section 25(b) of Tamil Nadu Court Fees and Valuation Act, 1955 if prayer is amended - Whereas substantially same shall be result if an issue regarding title based on plea raised by respondent defendant is framed as an issue even without a prayer for declaration in which event Court fee shall be paid under Section 27(a)(2) of Tamil Nadu Court Fees and Suits Valuation Act - End results shall be one and same because Court fee to be collected shall be on half of value of property which is subject matter of suit - So far as inclusion of a paragraph in plaint narrating how plaintiff would trace her title is concerned it shall be more helpful to respondent defendant to have the scope of plea made by plaintiff in support of her claim for title expressly stated - Even without such a plea based on denial of title made by defendant plaintiff can adduce evidence in support of her claim that she derived valid title - Besides throwing light on issue proposed amendment would lend help to Court to know real issue in controversy and decide same in present suit itself thereby avoiding multiplicity of proceedings - Judgment relied on by counsel for respondent can be distinguished on facts and same also will not be in any way helpful to case of respondent - For all reasons stated above this Court comes to conclusion that trial Court has failed to exercise jurisdiction conferred on it and it is a fit case in which order of trial Court has to be corrected by this Court in exercise of its power of Superintendence over Subordinate Courts under Article 227 of Constitution of India – Petition allowed
P.R. SHIVAKUMAR, J.
1. This Revision has been filed under Article 227 of the Constitution of India questioning the legality of the order dated 09.11.2010 made by the trial Judge, namely, the learned 3rd Additional District Munsif, Kallakurichi, in I.A. No. 2245 of 2010 in O.S. No. 40 of 2008 on the file of the said Court.
2. The petitioner herein is the plaintiff in the above said suit and the respondent herein is the sole defendant in the said suit. The suit came to be filed by the revision petitioner for a bare perpetual injunction not to interfere with her peaceful possession and enjoyment of the suit property (immovable property) described in the plaint schedule. The claim was based on the plaint averment that she purchased the property from the rightful owner by a sale deed dated 21.08.2002 and that ever since the purchase, she had been in possession and enjoyment of the same. No averment was found incorporated in the plaint indicating that the title of the plaintiff was in dispute. Hence, the suit was valued under Section 27(c) of the Tamil Nadu Court Fees and Suit Valuation Act 1955.
3. The respondent herein/sole defendant, who entered appearance after receiving summons, filed a written statement on 10.04.2008. In the written statement, he denied and disputed not only the plaintiff's possession and enjoyment of the suit property as claimed by her in the plaint, but also the title of the revision petitioner/plaintiff. Of-course, thereafter for about 2 years, the revision petitioner/plaintiff did not come forward with an application to amend the plaint so as to include a prayer for declaration of title. While preparing the case for trial, as per the legal advise received by her, I.A. No. 2245 of 2010 came to be filed under Order 6 Rule 17 CPC for amendment of the plaint by including an additional prayer for declaration of title and also a paragraph in the plaint narrating how the petitioner herein/plaintiff would trace her title.
4. The petition was resisted on the grounds (1) that the petition was belated; (2) by the proposed amendment, the scope of the suit was sought to be enlarged; (3) the nature of the suit itself was sought to be changed. The learned trial Judge after hearing by an elaborate order which is impugned in this revision, dismissed the said petition sustaining the above said contentions raised by the respondent herein/defendant.
5. It is the contention of the learned counsel for the petitioner that the Court below committed an error in holding that the amendment petition was belated, without taking into consideration the fact that the prayer for amendment was necessitated by the stand taken by the respondent herein/defendant denying the title of the petitioner herein/plaintiff in respect of the suit property. The further contention of the learned counsel for the petitioner is that the proposed amendment of the plaint, by including an additional prayer for declaration of title and by incorporating necessary pleadings as to how the petitioner/plaintiff would trace her title to the suit property, would not enlarge the scope of the suit, in so far as the suit for injunction based on title would necessarily involve a question of title when the title of the plaintiff is disputed by the defendant. According to the submissions made by the learned counsel for the petitioner, this aspect was not taken into consideration by the learned trial Judge. The next contention of the learned counsel for the petitioner is that the finding of the Court below that the nature of the suit itself was sought to be changed by the proposal, amendment cannot be countenanced.
6. Per contra the learned counsel for the respondent would contend that the suit for declaration is governed by Article 58 of the Limitation Act or in the alternative, governed by Article 113 of the Limitation Act and that the petition for amendment filed by the revision petitioner/plaintiff, much after the filing of the written statement, would be an attempt t
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