Lakshmanan vs Vellaiyan and 7 others

P. Sathasivam, J.—Plaintiff in O.S. No. 638 of 90 on the file of Additional District Munsif, Salem, aggrieved against the Order in I.A. No.

340 of 96 dismissing the said petition filed under Order 6, Rule 17, read with S. 151, C.P.C., for amendment of the plaint has filed the present revision in this Court. Originally the petitioner/plaintiff filed the said suit for declaration and permanent injunction against the defendant for declaring his title to the suit property and also for permanent injunction. In the affidavit filed in support of the said application for amendment it is contended that in I.A. No. 961 of 90 be obtained an order of injunction against the respondents. While the injunction is in force the respondents/defendants trespassed into the suit property on 7-7-90 in an extent of 14 cents and they are still remaining in the suit property. A criminal complaint has also been given against the respondents. Since the respondents have trespassed and occupied an extent of 14 cents in the suit property unlawfully subsequent to the filling of the suit, the present petition, namely, I.A. 340 of 96 is filed to amend the plaint to seek the relief of recovery of possession of the said 14 cents in the suit property from the respondents/defendants. No doubt a counter affidavit has been filed by the first respondent opposing the relief being granted in favour of the petitioner. They mainly contended that the present claim is barred by limitation and not maintainable at this juncture.

I have heard Mr. R.M. Krishna Raju learned counsel for the petitioner and Mr. D. Sivakumar, learned counsel for R-1 to R-7 and Mr.

Arumugham for R-8.

The court below in the facts and circumstances of the case passed the following Order:

This is suit of the year 1990. Written statement filed on 1-4-91. Issues framed on 22-1-92 and posted for trial on 12-3-92 and was posted for trial in the list on 9-10-95, on which date petition was filed and suit was removed from the list. And again posted in the list on 1-3-96 on which date this petition was filed for amendment. The plaintiff had opportunity to amend the plaint and seek possession of the suit property when the defendant denied the plaintiff possession in the written statement and from 1-4-1991 till 1-3-1996 there is a delay of more than 5 years and in these circumstances the contention of the respondents that this petition is highly belated in well founded and justified. Hence in the interest of

justice, this petition is dismissed.

It is true that it is not open to the party to amend his plaint if the cause of action is going to be changed. No doubt, it is also true that if the rights

of the defendants, namely, bar of limitation is taken away by allowing the amendment, the same cannot be permitted. But in this case the petitioner has specifically averred that subsequent to the institution of the suit, the defendants trespassed and occupied an extent of 14 cents in the suit property unlawfully. This has been admitted by the defendants in their counter affidavit filed in the said petition. However, the only objection is that the present claim is barred by limitation. At this juncture, it is useful to refer the recent decision of A.R. Lakshmanan, J., reported in Coimbatore

Seva Nilayam represented by its Secretary, T.V. Thilliammal, Coimbatore v. R. Narayanaswami Naidu (1993-1-M.L.J.17) (Notes of Recent

Cases). The facts in the said case and that of the present case are almost identical. After referring to the facts of the case (similar to our case) and after referring to Order 6, Rule 17 C.P.C., the learned Judge has held thus:

It is well settled by catena of decisions of this Court and also of the Apex Court that by merely allowing an application for amendment, there is no adjudication of the merits of the amended pleas introduced, that the merits of the amended pleas have got to be adjudicated upon after allowing the opposite side to put forth additional pleadings in answer to the same and that certainly the additional pleadings may take in also the plea of bar of

limitation. It is also well settled that the Court may in appropriate cases allow the amendment even after the statutory period of limitation. In the instant case, the suit was originally filed by the petitioner for declaration of title and for recovery of possession of the suit property. Since the petitioner was dispossessed of the land subsequent to the filing of the suit the proposed amendment petition was filed praying for delivery of

possession. To such a suit, as held by the Supreme Court in the decision reported in Abdul Waheed Khan Vs. Bhawani and Others, of the

Limitation Act applies. By allowing the amendment, no injury or injustice is caused to the respondents herein. No jurisdictional error is also involved in this case because of the amendment being ordered.

In view of the factual and legal position, I am of the view that the order of the Court below cannot stand. The question of limitation should not have been decided by the Court below at present, because it is a question to be decided on merits with oral and documentary evidence. For adjudicating an amendment application we are governed and concerned only by Order 6, Rule 17 of the Code of Civil Procedure. In the present

case, the amendment application should have been allowed, since it is not going to change the nature of the suit, nor does it affect thee rights of the

defendants. The defendants can put-forth all their contentions even if the amendment is allowed. The order of the court below is, therefore set aside and the Civil Revision Petition is allowed. However, there will be no order as to costs. Consequently, C.M.P. No. 11099 of 96 is dismissed.