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High Court Of Orissa
K. P. MOHAPATRA
GOPAL CHANDRA - Appellant
Versus
L.I.C.OF INDIA - Respondent
CIV. REVN. 679 Of 1981
Decided On : 07/31/1984
AMENDMENT OF PLAINT - SUIT FOR INJUNCTION - DAMAGES - SUBSEQUENT EVENTS - CHANGE OF CAUSE OF ACTION - LIMITATION - O. 6, R. 17 C. P. C. - S. 40 SPECIFIC RELIEF ACT, 1963 - In a suit for permanent injunction, damages can be claimed either in addition to, or in substitution of such injunction. Subsequent events can be taken into consideration for amendment of the plaint. The proposed amendment will not substitute a new cause of action whereby the character of the suit will be changed. The claim of damages is not necessarily barred by limitation so that such a claim cannot be introduced by way of amendment.
Fact of the Case:
Plaintiff filed a suit for permanent injunction to restrain the defendant from making further constructions of projections and cornices, for mandatory injunction to remove those which have already been constructed and for screening or closure of windows and openings. The defendant denied the plaint averments and asserted that there was no danger to the plaintiff's western wall being soaked and damaged by rain water or otherwise. During pendency of the suit, a Civil Court Commissioner was deputed for local inspection who submitted his report that there were projections and constructions over them close to the western wall of the plaintiff's building. There was a crack from the bottom to the top on the said western wall. The plaintiff filed a petition under O. 6, R. 17 C. P. C. for amendment of the plaint to add facts about damage to the wall and floor of his building as a result of the projections and constructions of the defendant's building on the first, second and third floors, claim of damages of Rs. 500/- and claim of pendente lite damages at the rate of Re. 1/- per day since 1st January 1979 till removal of the illegal constructions.
Finding of the Court:
The court allowed the amendment of the plaint. It held that in a suit for permanent injunction, damages can be claimed either in addition to, or in substitution of such injunction. Subsequent events can be taken into consideration for amendment of the plaint. The proposed amendment will not substitute a new cause of action whereby the character of the suit will be changed. The claim of damages is not necessarily barred by limitation so that such a claim cannot be introduced by way of amendment.
Issues: 1. Whether in a suit for permanent injunction damages can be claimed. 2. Whether subsequent events can be taken into consideration for amendment of the plaint. 3. Whether the proposed amendment will substitute a new cause of action whereby the character of the suit will be changed. 4. Whether the claim of damages is barred by limitation so that such a claim cannot be introduced by way of amendment.
Ratio Decidendi: 1. Section 40 of the Specific Relief Act, 1963 allows for damages to be claimed in a suit for permanent injunction or mandatory injunction, either in addition to, or in substitution of such injunction. 2. Subsequent events can be taken into consideration for amendment of the plaint, in order to shorten litigation, preserve rights of both the parties and to subserve the ends of justice. 3. The amendment will not substitute a new cause of action whereby the character of the suit will be changed, as the further fact sought to be introduced is not completely a new fact unconnected with the averments already made in the plaint. 4. The question of limitation for the claim of damages is a pure question of fact which is to be investigated and adjudicated at the time of trial.
Final Decision: The Civil Revision was allowed. The plaint was amended accordingly. Parties were directed to bear their own costs.
K. P. MOHAPATRA, J.
( 1 ) THIS revision is from the order passed by the learned Munsif, First Court, Cuttack, rejecting the plaintiff's petition under O. 6, R. 17 C. P. C. for amendment of the plaint.
( 2 ) THE plaintiff instituted Title Suit No. 95 of 1977 against the defendant, the Life Insurance Corporation of India for permanent injunction to restrain it from making further constructions of projections and cornices, for mandatory injunction to remove those which have already been constructed and for screning or closure of windows and openings. The plaintiff has his double storied old residential building described in schedule 'a' of the plaint. The defendant has been constructing a multistoried building on schedule 'b' land of the plaint on the adjoining west of schedule 'a' property within the municipal area of Cuttack. According to the plaint averment, the defendant has violated different provisions of the Orissa Municipal Act and did not leave a space of more than 3 feet width on the eastern side of the wall of the building under construction at the base. Further, while constructing the upper storeys of the said building, the defendant made projections and constructed lavatories above them almost adjoining the plaintiffs wall on the western side completely covering the vacant space at the base. As a result, the old western wall of the plaintiffs building has been endangered, in so far as, rain water will fall thereon and cause serious damage to it which might ultimately collapse.
( 3 ) THE defendant in the written statement categorically denied the plaint averments and inter alia asserted that prior to the construction of the new multistoried building on schedule 'b' land of the plaint, there existed an old building adjacent to the plaintiff's building. For construction of the multistoried building the old building was demolished except the old eastern wall there adjacent to the plaintiff's western wall of the building. That being the position, there is absolutely no danger to the plaintiff's western wall being soaked and damaged by rain water or otherwise.
( 4 ) DURING pendency of the suit, a Civil Court Commissioner was deputed for local inspection who submitted his report dated 30-6-1980. In the report he stated that the defendant has constructed a new building with four storeys. In between the buildings of the plaintiff and the defendant there is a vacant space at the base. But on the first, second and third floors of the building there are projections and constructions over them close to the western wall of the plaintiff's building. There is a crack from the bottom to the top on the said western wall.
( 5 ) THE plaintiff filed the petition under O. 6. R. 17 C. P. C. for amendment of the plaint on 12-8-1981. By amendment, he sought to add some more facts, such as, damage to the wall and floor of his building as a result of the projections and constructions of the defendant's building on the first, second and third floors, claim of damages of Rs. 500/- and claim of pendente lite damages at the rate of Re. 1/- per day since 1st January 1979 till removal of the illegal constructions. The amendment was opposed on the grounds that if allowed, the character of the suit will be changed because, thereby a totally different cause of action will be introduced and further the claim of damages being barred by limitation could not be allowed. The learned lower court took the view that in a suit for injunction, a claim for damages by way of amendment would introduce a new cause of action and thereby change the character of the suit. Therefore, he disallowed the amendment.
( 6 ) MR. S. K. Dey appearing for the petitioner urged that the proposed amendment will not change the character of the suit because, in view of the facts already stated in the plaint and the subsequent events as reported by the civil court commissioner, the claim for damages is permissible according to law. Mr. S. P. Misra appearing for the opposite party,
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