ORDER

This petition has been filed to set aside the order in I.A.No.4 of 2020 in O.S.No.156 of 2012 on the file of the learned I Additional District Munsif, Tirunelveli.

2.The petitioner herein is the plaintiff and the respondents herein are the defendants in the suit. The petitioner herein has filed a suit in O.S.No.156 of 2012, for mandatory injunction to remove the unauthorized encroachment and construction put up by the defendants 1 and 3 and for permanent injunction. Pending suit, the petitioner herein has filed a petition in I.A.No.4 of 2020 seeking permission to amend the plaint.

3.A Brief substance of the petition in I.A.No.4 of 2020 is as follows:

The plaintiff has filed the suit through his power agent. The suit was filed for mandatory injunction with regard to suit items A to C properties and for an order of permanent injunction against the third defendant. The written statement was filed by the defendants denying the title of the plaintiff and hence, it is necessary to implead a prayer for declaration. A portion of the property has to be recovered and a prayer to that effect is to be included and hence, an amendment is necessary.

4.Brief substance of the counter in I.A.No.4 of 2020 reads as follows:

The house of the defendant was constructed in the year 1944. The pathway wherein the windows and sunshade were constructed, belongs to the defendants. The house was constructed by the father of the defendants, one Jeganathan. The suit is bared by limitation. The amendment will change the entire nature of the suit. Already a petition to amend the suit was filed by the plaintiff and the petition was dismissed by the Court. The petitioner has come to the Court for the second time by seeking the same prayer. The defendant is 90 years old and only with a motive to drag on the matter, the petitioner has filed this petition.

5.After hearing both sides, the trial Court has dismissed the petition.

Against which, the revision petitioner has preferred this Civil Revision Petition.

6.On the side of the revision petitioner, it is stated that the nature of amendment is only to include a prayer for declaration of title as the same was disputed by the defendants. Instead of the second prayer for mandatory injunction, now the prayer has to be amended for recovery of possession, which is not barred by limitation on the date of filing of the petition. The earlier amendment petition was to amend the prayer and also to amend the schedule properties and the same was dismissed by the trial Court and challenging that earlier order, the petitioner has filed a revision petition in C.R.P.(MD)No.778 of 2018 before this Court. The dismissal of the petition will not preclude the right of plaintiff to file the present amendment petition in I.A.No.4 of 2020. The provision under Section 152 r/w. Order 6 Rule 17 of Civil Procedure Code, gives power to the civil Court to permit amendment in the post trial stage. 12 years limitation is available for seeking relief of recovery of possession and that the relief was not time barred at the time of filing of the petition.

7.On the side of the respondents, it is stated that the amendment petition was filed in the year 2020. The suit was filed in the year 2012. The third respondent is the Execution Officer of the temple and there is no encroachment on the property of the revision petitioner. The proposed amendment will take away the admissions made in the plaint. The nature of the suit will be altered. In the suit, it was admitted that there was a common lane. Now the petitioner want to take away the admission made in the plaint.

8.The learned counsel for the respondents would rely upon the judgment passed by the Hon'ble Supreme Court in the case of Ram Niranjan Kajaria and others v. Sheo Prakash Kajaria and others reported in 2015 2 SCC 203, wherein it is stated as follows:

“In the counter affidavit filed before this Court, defendant Nos.5 and 12 have stated as follows:

The alleged letter of 1956 allegedly issued by the w