B. Shanthilal vs B. Palani

P.R. Shivakumar, J.—The arguments advanced on both sides are heard. The materials produced in the form of typed set of papers are also perused.

The plaintiff in the original suit O.S. No. 8605/2008 pending on the file of the VII Assistant Judge, City Civil Court, Chennai is the petitioner in the present revision. He filed the said suit against the respondent herein for a decree directing the respondent herein to hand over vacant possession of the land, allegedly encroached by him, that was more fully described in the schedule annexed to the plaint.

The suit is being contested by the respondent herein based on his plea that the property described in the plaint schedule belongs to Arulmigu Logavinayagar Temple and he is in possession and enjoyment of the same as a lessee under the said temple. It has also been contended in the written statement that when one Gowri, the mortgagor of the petitioner herein tried to stake claim in respect of the property described in the plaint schedule, the respondent herein had to file a suit against her for permanent injunction not to disturb his peaceful possession and enjoyment of the property described in the plaint schedule in the present suit; that another suit was filed by the said Gowri in respect of the very same property for the very same relief claiming that she was in possession and enjoyment of the same and the respondent herein was making efforts to trespass into the same and that the suit filed by the respondent herein was decreed, as against which no appeal came to be filed, whereas the suit filed by Gowri was allowed to be dismissed for default and no steps for restoration of the same was taken. Under the said circumstances alone, the revision petitioner seems to have approached the trial court with the present suit in O.S. No. 8205/2008 seeking the relief of recovery of possession of the land allegedly encroached by the respondent herein.

When the claim of the person through whom the revision petitioner derived his right as a mortgagee had lost her legal fight in two suits filed earlier, the petitioner seems to have filed the present suit claiming as if he was in possession and enjoyment of the suit property right from the date of execution of a mortgage deed, dated 28.10.1997. The suit filed by the respondent herein against Gowri and the suit filed by Gowri against the respondent were subsequent to the execution of the mortgage deed, based on which, the revision petitioner claims the relief. In those suits, the claim of possession of the respondent as a lessee under the temple was upheld and the relief of permanent injunction not to disturb his possession was granted, whereas the claim of Gowri for a similar injunction based on her contention that she alone was in possession and enjoyment, was negatived.

Having filed the present suit for recovery of possession of the land allegedly encroached by the respondent herein, the revision petitioner filed a petition in I.A. No. 11330 of 2010 on the file of the trial court under Section 151 CPC to permit the revision petitioner herein to withdraw the suit O.S. No. 8605/2008 with liberty to file a fresh suit. The reason assigned therein was that though the description of the property was correctly given in the body of the plaint, while describing it in the plaint schedule, an error had crept in and that the revision petitioner was bound to fail in view of such a technical defect. The said petition, after hearing, came to be dismissed by the learned trial judge by order dated 03.08.2010. The said order was not challenged. On the other hand, the revision petitioner herein chose to file I.A. No. 14659/2010 under Order VI Rule 17 of CPC for amending the plaint schedule.

The said petition was resisted by the respondent herein contending that though the discrepancy was pointed out in the written statement itself, the revision petitioner herein chose to keep quiet till the suit was taken up for trial and only when he faced problem during the cross-examination of DW-1, he chose to file the earlier petition, namely I.A. No. 11330/2010 and that on the dismissal of the said petition, he filed I.A. No. 14659/2010 for amendment of the plaint. It was contended therein that the attempt made by the revision petitioner by filing the said petition was a futile exercise to protract the case and to prevent an early verdict being rendered in the original suit.

The learned trial judge, upon hearing the submissions made on both sides, came to the conclusion that there was no bonafide on the part of the revision petitioner in filing such a petition for amendment at a belated stage and that therefore, the petition was dismissed. The said order of the learned trial judge dated 08.04.2010 is challenged in the present revision.

Initially, the petitioner had obtained an order of interim stay by order dated 20.06.2011 passed by this court. After a lapse of three years and three months, the civil revision petition came to be listed yesterday and at the request of the counsel for the revision petitioner, the revision stands listed today.

It is the contention of Mr. Prakash Goklaney, learned counsel appearing on behalf of the counsel on record for the revision petitioner that the mistake that had crept in while preparing the plaint is apparent, as the property described in the body of the plaint is different from the property described in the plaint schedule and that when two contradictory descriptions of the suit property are provided in the plaint, the court below ought to have allowed the revision petitioner to correct the schedule of property and thereby rectify the discrepancy found in the pleadings.

Per contra, Mr. G. Rajarajan, learned counsel for the respondent, would contend that the petitioner himself was not sure as to what was the property regarding which the relief was sought for and the same was the reason why a different description of property than the one appearing in the body of the plaint came to be incorporated in the plaint schedule. Learned counsel for the respondent also draws the attention of the court to that part of the pleadings in the written statement in which the discrepancy was highlighted and argues; that even after the discrepancy was brought to the notice of the revision petitioner, the revision petitioner simply kept quiet and only at the fag end of the trial of the suit, steps were taken at the first instance to withdraw the suit with liberty to file a fresh suit and then to amend the plaint schedule. It is the further contention of the learned counsel for the respondent that the claim of the petitioner that he was in possession and enjoyment of the suit property (either the property described in paragraph 3 of the plaint or described in the plaint schedule) is false and the same is the reason why contradictory and conflicting pleas came to be made in the plaint. The learned counsel for the respondent has also pointed out the fact that the revision petitioner/plaintiff is not the owner of the property and he is only a mortgagee and that the mortgage created in favour of the revision petitioner has been described to be a simple mortgage. The learned counsel for the respondent has also pointed out that the plaint averment in paragraph 4 is to the effect that the revision petitioner/plaintiff was in possession and enjoyment of the property mortgaged to him as on the date of the plaint, but a contradictory plea was made in the prayer by seeking a direction to the respondent to hand over vacant possession of the land allegedly encroached upon by him. The learned counsel for the respondent further contends that if at all a portion of the property alone had been encroached, the revision petitioner/plaintiff could have given that encroached portion alone as the suit property with proper description and boundaries. On the other hand, without making necessary plea, the prayer for recovery of vacant possession came to be made and that in view of the vagueness in the pleading, the revision petitioner is bent on protracting the case as long as possible.

The above said submissions made on both sides are taken into consideration by this court.

Of course, the contention of the learned counsel for the revision petitioner, at the outset, may seem to be appealing, provided he happened to be the owner or a usufructuary mortgagee of the property regarding which the relief is sought for. In the plaint itself a clear admission has been made that the mortgage executed by Gowri is a simple mortgage. The mortgage deed is dated 28.10.1997 and the amount secured is Rs. 2,00,000/-, which is agreed to be paid with an interest at the rate of 24% per annum. Having taken a plea that he got a simple mortgage deed executed in his favour, the revision petitioner also has taken a stand that he was put in possession of the property on the very same day. What was the basis on which he was put in possession of mortgaged property (suit property) has not been explained. Again in paragraph 4 of the plaint, the revision petitioner herein/plaintiff has made a plea that the property was in his possession as on the date of plaint. The relevant sentence in the plaint is reproduced herein:

"It is respectfully submitted from the date of mortgage the said property is in the possession of the plaintiff. Taking advantage of the position that the mortgagor is unavailable, the defendant is attempting to grab the property."

However, in the latter part of the very same paragraph, the revision petitioner/plaintiff chose to state that the plaintiff gave a letter on 30.05.2006 to the Tahsildar, Guindy-Mambalam Taluk, Chennai to conduct a survey for ascertaining the exact extent of land encroached by the respondent herein/defendant and the Tahsildar has provided the plaintiff with a sketch showing the exact encroached portion. Even then, there is absence of clear plea, as to on which date the respondent/defendant encroached upon the property and whether the entire property was encroached upon or a part of the property alone was encroached?

Even in the paragraph providing for the cause of action, no date has been given as the date on which the alleged encroachment was made. The recitals in the latter part of paragraph 4 of the plaint goes contra to the earlier part of the same paragraph in which pleading has been made as if the revision petitioner/plaintiff was in possession as on the date of plaint. In paragraph 3 of the plaint, the property mortgaged by Mrs. Gowri in favour of the revision petitioner has been described as "a thatched house and ground measuring 600 sq. ft. bearing door No. 22/1, New Street, Maduvankarai, Velachery, Chennai-600 032 comprised in Survey No. 98/1, Block No. 6, T.S. No. 23". In the plaint schedule, the property has been described as "a land of an extent of 800 sq. ft. and hut situated at new No. 98 old No. 48, Pillayar Koil Street, Maduvankarai, Guindy, Chennai-600 032" for which four boundaries have also been provided.

A comparison of the description of the property in the schedule and the description of the property which was the subject matter of the mortgage as provided in paragraph 3, will make it clear that the property, which was the subject matter of the mortgage, was not shown as the suit property and a different property had been shown as the suit property. When the discrepancy in the extent itself was pointed by the respondent/defendant in his written statement, the petitioner/plaintiff could have verified and filed necessary petition for correcting the mistake, if any. On the other hand, he had simply prolonged the case and at the fag end of the trial, he has chosen to take steps for withdrawal of the suit with liberty to file a fresh suit and on his failure to get such an order, filed a petition for amendment of the plaint schedule. If the plaint schedule is allowed to be amended, it shall have the effect of allowing the petitioner to change the very cause of action itself and the property regarding which the relief was sought for.

Even now, the petitioner is not clear as to whether the entire property has been encroached upon or only a portion of the property has been encroached upon by the respondent/defendant. Having made a plea that the Tahsildar, after measurement, has given a plan showing the encroached portion, the petitioner ought to have filed the suit only in respect of the encroached portion for recovery of possession and injunction in respect of the remaining portion which according to him, is in his possession. The failure to do so will make it clear that the pleading in the plaint is vague enough, which is now sought to be rectified to some extent by filing the present petition for amendment of the plaint schedule. Even by the proposed amendment, the revision petitioner has not come forward to show the exact portion of alleged encroachment and the remaining portion in his possession. On the other hand, he wants to show the entire property, which is the subject matter of the mortgage, as the property regarding which the relief of recovery of possession is sought for. If such contradictory pleas are allowed to be made by an amendment at the moment when the trial is almost at the fag end, the same will amount to allowing the petitioner to practise abuse of process of court.

For all the reasons stated above, this court comes to the conclusion that there is no merit in the revision and the order of the learned trial judge dated 08.04.2011 dismissing I.A. No. 14659/2010 in O.S. No. 8605/2008 seeking amendment, cannot be said to be erroneous, capable of being interfered with by this court in exercise of its power of superintendence over the subordinate courts under Article 227 of the Constitution of India.

In the result, the civil revision petition fails and the same is dismissed. In view of the fact that the suit is in the part-heard stage, the learned trial judge is directed to proceed with the trial and complete the trial as expeditiously as possible, in any event not later than three months from the date of receipt of a copy of this order. While deciding the suit, the learned trial judge shall not be influenced by any of the observations made in the impugned order of the trial court or made in this order and decide the suit purely on the merits of the case. No cost. Consequently, the connected miscellaneous petition is closed.