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2017 Supreme(Mad) 570
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, J.
Dhanathammal (Died) and others – Petitioners
Vs.
Venkatesan – Respondent
C.R.P (MD) No. 674 of 2017 and C.M.P (MD) No. 3009 of 2017
Decided On : 06-04-2017
For the Petitioner: Mr. D. Kanagasabai
For the Respondent: Mr. P. Arun Jayatram
The main legal point established in the judgment is that introducing a new case by way of amendment after a long delay and without substantial pleadings cannot be allowed.
Headnote:
Amendment - Civil Suit - 2005-4-L.W.193, 2016 (2) TLNJ 383, 2013-1-L.W.213 - The court discussed the amendment of the plaint seeking relief of declaration and recovery of possession, citing relevant case laws and the legal principles established in those cases.
Fact of the Case:
The suit was filed for bare injunction by the mother of the petitioner against her son, in respect of a property owned by the respondent/defendant. After the mother's death, the legal heirs sought to amend the plaint to include the relief of declaration and recovery of possession, which was dismissed by the court below.
Finding of the Court:
The court found that the amendment sought was belated and would introduce a new case with a new cause of action, and that the relief of declaration of title without challenging the title deed could not be allowed.
Issues: The main issue was whether the amendment of the plaint to include the relief of declaration and recovery of possession should be allowed, and whether it was barred by limitation.
Ratio Decidendi: The court held that a person pursuing a suit must be vigilant enough to seek all reliefs at one stretch and take immediate steps for rectification if there is a genuine cause. The court also emphasized that introducing a new case by way of amendment after a long delay and without substantial pleadings cannot be allowed.
Final Decision: The court dismissed the revision petition and held that it was not inclined to interfere with the order of the trial court, consequently closing the connected miscellaneous petition with no costs.
This Civil Revision Petition has been filed by Under Article 227 of Constitution of India, praying to set aside the Fair and Decretal order passed in I.A.No.460 of 2016 in O.S.No.1802 of 2009 on the file of the Principal District Munsif, Trichirapalli dated 16.11.2016.
2. This suit in O.S.No.1802 of 2009 was filed for bare injunction by the mother of the fourth petitioner herein against one of her son, in respect of the property which stands in the name of the respondent/defendant. The defendant has filed a written statement stating that he is the title holder of the property and he claims ownership of the property. Therefore the suit for bare injunction is not maintainable. The written statement in the suit was filed on 07.12.2010, when the plaintiff/mother was alive. After her death, now legal heirs of the plaintiff have been brought on record. They filed an Interlocutory application seeking to carry out amendment of the prayer in the plaint and relief by including the relief of declaration and recovery of possession in respect of title for which the defendant herein has filed a counter stating that by virtue of filing of the amendment petition that too belatedly long after filing the written statement, would go to show that the revision petitioners wanted herein to introduce a new case with new cause of action. Hence the Interlocutory Application should be dismissed. The court below has accepted the contention of the defendant and dismissed the application.
3. Aggrieved by that the present revision petition has been filed on the ground that it is not a new case introduced by the plaintiffs and the defendant is in no way going to prejudice if such an amendment is allowed to be carried out. The plaintiffs have filed the present application before commencing of the trail and therefore, there is no impediment to consider the amendment petition and allow the same. However, the court below has erroneously dismissed the application, by observing that the said amendment will give rise to a new right to the party which they ought to have bestowed at the time of institution.
4. It is also pointed out by the learned counsel appearing for the revision petitioners that the defendant was not in possession of the property on the date of filing of the suit and there is no wrong in allowing the application to amend the plaint by including the relief of declaration and recovery of possession.
5. In support of his submission the learned counsel appearing for the petitioner has relied upon the judgment reported in 2005-4-L.W.193(chinna Pillai Udayar v. Natesa Udayar & another) in this case, Court has entertained the amendment petition filed after 11 years after the institution of the suit holding that the amendment sought for is only in sequel to the written statement, therefore the impugned order declining amendment causes serious prejudice to the plaintiff, had set aside the impugned order.
6. The other judgment relied upon by the learned counsel for the revision petitioners is reported in 2016 (2) TLNJ 383 (Civil) (G.K. Parthasarathy Vs. K.Gopal & another) in this case, earlier the suit for bare injunction was filed and later, when the plaintiff was dispossessed, pending suit, application to amend the plaint was filed. In the said circumstances, Court has held that there is limitation for recovery of possession under Article 64 of limitation Act. Therefore the application for amending the suit for recovery of possession ought to have been within a period of 12 years from the date of dispossession.
7. The third judgment relied upon by the learned counsel for the revision petitioners is the one reported in 2013-1-L.W.213(Abdul Rehman & Anr. v. Mohd.Ruldu & others) In this case amendment petition was filed in a bare injunction suit to include the relief of declaration of title and for setting aside the sale deeds.
8. The Hon'ble Supreme Court in this case has held that under the proposed amendment, if is to include the relief of declaration of
