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Judgment
R. Banumathi, J.—This Civil Revision Petition is directed against the order dated 31.01.2002 passed by XIV Assistant Judge, City Civl
Court, Chennai made in I.A.No. 4403 of 2001 in O.S.No. 7033 of 1997, dismissing the Amendment Application filed under Order VI Rule 17
C.P.C. The Plaintiff is the Revision Petitioner.
O.S.No. 7033 of 1997:- The Plaintiff has filed this Suit for declaring that he is the Tenant in respect of land to an extent of 10 Sq.meters near
the Anchor Gate of the Madras Port Trust, Madras - 1 and for Injunction restraining the Defendants from in any manner interfering with his
peaceful possession and enjoyment of the Schedule mentioned property. Case of the Plaintiff is that he was provided 10 Sq.metres for funning a
Snack Kiosk within the premises of the Madras Port Trust. He was allotted the space and using the funds raised by the Members of the Plaintiff
Society, the Plaintiff started the business providing employment for nearly 10 youngsters. The Plaintiff incurred expenditure for laying Water Pipe
Lines and for getting Electricity Supply at his cost. To run the snack kiosk, the Plaintiff has also put up a permanent structure with rolling shutters
by incurring considerable expenditure. In the year 1992, the Plaintiff was sought to be vacated by the Defendants on the alleged plea that the space
was required by the Port Trust for its developmental activities. Thereupon, the Plaintiff had filed Writ Petition, challenging the threatened action.
Since the threatened action was not pressed, the Plaintiff had later withdrawn the Writ Petition. In September - October 1996, the Defendants
informed the Plaintiff to vacate the premises by 30.11.1996 on the alleged ground of health hazard and detrimental to development of Port Trust.
The Plaintiff made a representation dated 15.11.1996 to the Defendants. But, the said representation has not been considered by the Defendants.
The Second Defendant had issued a Notice on 21.12.1996 to the Plaintiff to vacate the premises on or before 31.03.1997. By a further Notice
dated 09.04.1997, the Second Defendant had asked the Plaintiff to vacate the premises on or before 30.06.1997. Since the Plaintiff is having
exclusive possession of the area allotted to them where they have put up permanent super structure, incurring considerable expenses, the Plaintiff
has filed this Suit for declaring him as Tenant in respect of the land to an extent of 10 sq.meters near the Anchor Gate.
Denying the allegations in the Plaint, the Defendants - Madras Port Trust had filed the Written Statement contending that the Plaintiff was only a
Licensee for running snack kiosk. The terms and conditions of the allotment of the licence of the space are contained in the proceedings of the Port
Trust. The Plaintiff is bound by the terms and conditions of the Allotment. Their licence shall be renewed from time to time.
The Assistant Health Officer, Corporation of Madras reported that Bunks and Eating Houses in the vicinity of Harbour area are throwing
garbages and waste materials over Rajaji Salai and affecting conservation. Apart from being health hazard to the public life, in view of the
enormous increase in the operations of the function of additional buildings, all the shops and other structures put up in the area of Anchor Gate
spoil their appearance polluting the environment. The shops cause gathering of persons and also give shelter for anti-social elements, which is to be
prevented. Hence, after duly considering the entire matter, the shops and the allottees near the Anchor Gate were required to vacate the same.
Accordingly, the allotment of the space to the Plaintiff was terminated by the proceedings dated 31.10.1996. The Plaintiff was required to vacate
and hand over the space on or before 30.11.1996. On request from the Plaintiff, the time for vacating the space was extended. Lastly, by the
proceedings dated 05.07.1997, the plaintiff was requested to vacate the space on or before 30.09.1997. Without complying with the same, the
Plaintiff has filed the vexatious Suit. The Plaintiff only a licensee, who is governed by the terms and conditions of the Allotment. It is also covered
by the specific provisions of Scale of Rates framed under the Madras Port Trust Act. At no time, the Defendants gave permission to the Plaintiff
for construction of the super structure in the manner done by the Plaintiff. In any event, on termination of licence, the Plaintiff is liable to render
vacant possession. The Suit for Declaration that he is the Tenant is not maintainable.
I.A.No. 4403 of 2001:- During the pendency of the Suit, the Plaintiff had filed this Application under Order VI Rule 17 C.P.C for amending the
Plaint. According to the Plaintiff, for running his business he has put up a permanent structure and rolling shutters in consultation with the Assistant
Traffic Manager. Since the Defendants have alleged that the Plaintiff is only a Licensee and the Allotment is termed as Licence and in view of
putting up of the Super Structure, the Licence had become irrevocable. It is the further case of the Plaintiff that the Allotment was not under Clause
5(c) of Chapter I, Book II of Trust''s Scale of Rate and the same is applicable only to persons requiring allotment of space for the storage of their
goods on the particular premises. On those allegations, the Plaintiff has filed the Amendment Application to amend the Plaint that the terms of
Allotment is not under Clause 5 of Chapter I and also for the alternative declaration that the Plaintiff acting upon the Licence has executed a work
of Permanent character incurring expenditure and the licence is irrevocable u/s 60(b) of the Indian Easements Act.
Resisting the Application, the Defendants have filed the Counter Statement contending that the Plaintiff is bound by the terms and conditions
referred to in the order of Allotment and he is also bound by Clause 5(c) of Chapter I, Book II of Trust''s Scale of Rate and these conditions and
terms were framed under Sections 48 and 49 of the Madras Port Trust Act and the Supreme Court has also upheld the same. While so, it is not
open to the Plaintiff to allege that the grant was a Licence and that u/s 60(b) of the Indian Easements Act, the Licence had become irrevocable. So
far as the super structure is concerned, the Plaintiff had never applied for permission to construct the same. The Plaintiff is liable to be vacated on
termination of his licence and the Plaintiff is bound to hand over vacant possession after removing the super structure. Section 60(b) of the Indian
Easements Act is not applicable. The proposed Amendment introduces a new case and therefore, the Application cannot be allowed.
Upon consideration of the averments in the Affidavit and in the Counter Statement, the Trial Court dismissed the Application mainly on the
ground that the proposed Amendment introduces a new case. Learned Judge was of the view that earlier the Plaintiff claimed as himself as a
Tenant and by the proposed Amendment, the Plaintiff seeks to term the Allotment as Licence and that the proposed Amendment that ""the Licence
had become irrevocable"" is contradictory to the earlier plea.
Aggrieved over the dismissal of the Application, the Plaintiff has preferred this Civil Revision Petition. Assailing the Impugned Order, learned
counsel for the Revision Petitioner has contended that the lower Court has not properly appreciated the contentions of the parties. The lower
Court ought to have allowed the Application since the proposed Amendment would avoid multiplicity of proceedings. It is further submitted that
the Trial Court has not taken note of the proposed Amendment in the light of the super structure put up by the Plaintiff and the irrevocable nature
of the Licence u/s 60(b) of the Indian Easements Act. Contending that the proposed Amendment does not change the substratum of the Plaint,
learned counsel for the Revision Petitioner urged that an opportunity is to be given to the Plaintiff to put forth his alternative case, which does not
introduce a new case.
Drawing the attention of the Court to the Allotment of Open Space for Snack Kiosk, learned counsel for the First Defendant / Madras Port
Trust has submitted that by the proposed Amendment, the Plaintiff seeks to introduce a new case. It is submitted that the Licence was valid only
upto 1997 and thereafter, the time was extended only at the request of the Plaintiff. Drawing the attention of the Court to the conditions of Licence
and Termination of Licence (by the proceedings dated 18.10.1997), learned counsel for the Defendants has submitted that as per the terms and
conditions of Licence, the Licensee is to demolish and to remove the super structure within 30 days of Termination of the Licence. Contending that
by the proposed Amendment, the Plaintiff seeks to introduce totally a new and inconsistent case, learned counsel for the First Defendant has
submitted that the order of dismissal passed by the Trial Court is well in accordance with the terms and conditions of Allotment and that the
Impugned Order does not suffer from any jurisdictional error warranting interference.
Upon consideration of the contentions of both parties, the Impugned Order, the terms and conditions of the Allotment and other materials
available on record, the following points arise for consideration in this Civil Revision Petition.
i. In the circumstances of the case, whether the proposed Amendment to amend the Plaint for alternative prayer for Declaration that the Plaintiff
has executed the work of Permanent character and the Licence is irrevocable can be allowed?
ii. Whether the Impugned Order, declining to Amend the Plaint and finding that it introduces a new case suffers from any material irregularity
warranting interference?
From the Plaint Document No. 2, it is seen that permission was granted to the Plaintiff for putting up a snack Kiosk outside the Anchor Gate
(by the proceedings dated 29.08.1990). The Allotment was subject to the condition that the land under occupation will be under allotment on
monthly licence basis as laid down in 5(c) of Chapter - I, Book - II of Trust''s Scale of Rates. The Licence Fee is payable every month. It is also
seen that the Licence is to be renewed every month Seven days in advance for each calendar month. The renewal is to be applied on the
prescribed ""Space Licence Renewal"" Form available at the Office of Port Trust. In the said Letter of Allotment, it is also stated that the Plaintiff is
to vacate the space if required by the Port for its developmental activities as is seen from the following:
...You will have to vacate the space if required by the Port for its developmental activites immediately as the monthly licence lapses automatically
at the end of every month as per Clause 5(c)(v), Chapter I, Book II of Trust''s Scale of Rates....
Thus, it is clearly mentioned in the Allotment Order that the Plaintiff / Licensee shall have to vacate the space if required by the Port Trust for its
developmental activities. The Licence lapses automatically at the end of every month as per Clause 5(c)(v) Chapter I, Book II of Trust''s Scale of
Rates. Without mincing words, it is made clear that the Allotment is only Licence and that the Plaintiff is a Licensee. But, the Plaintiff has filed the
Suit for Declaring him as a Tenant. Even in the letter of Allotment of open space, the Plaintiff is only termed as a Licensee and the rent payable is
Licence Fee. Even then, the Plaintiff has filed the Suit for declaring him as the Tenant. However, it is the matter for adjudication in the Suit.
Even according to the Plaintiff, the Allotment of open space was by the Allotment Order dated 29.08.1990. The Allotment itself has been
made ""subject to the condition in Clause 5(c) Chapter I, Book II of Trust''s Scale of Rates"". By the Letter, the Plaintiff has also agreed to be
bound by Clause 5(c) Chapter I, Book II of Trust''s Scale of Rates. While so, the Plaintiff has filed the Amendment Application seeking to amend
the Plaint stating that the Allotment was not under Clause 5(c) of Chapter I, Book II of Trust''s Scale of Rates. According to the Plaintiff, Clause 5
is applicable only to the persons requiring allotment of space for the storage of their goods on the particular premises. The allotment being for the
purposes of running a Tea Stall, snack Kiosk, does not fall under the said clause. This proposed Amendment is totally contradictory to the
Plaintiff''s case, introducing entirely a new case.
The Plaintiff had alleged that for running a Tea Stall / snack kiosk, he had put up super structure of permanent character and that the Licence
had become irrevocable. In the proposed Amendment Application, the Plaintiff contends that the Licence had become irrevocable u/s 60(b) of the
Easements Act. The Plaintiff seeks for an alternative declaration that the Plaintiff acting upon the Licence has executed a work of permanent
character, incurring expenditure in the Execution and that the Licence has become irrevocable u/s 60(b) of the Indian Easements Act. This
Amendment is also contradictory to the earlier plea that he is only a Tenant. No doubt, as per the terms and conditions of Allotment, the
Defendants have put forth the defence plea that the Plaintiff was only a Licensee. The Plaintiff cannot abandon his case and adopt the case of the
Defendants.
As per clause 5(c) Chapter - I, Book II of the Trust''s Scale of Rates, the Licensee shall not put up any super structure. The said condition is
as under:-
...The licensees shall not construct or put up any buildings, erection or convenience on space occupied under permit except on the written
permission of the Traffic Manager. The licensees shall agree to remove such building, erection or convenience on the space, restore the space to its
original condition at the time of termination of the licence and if the licenses fail, the Trust will arrange for removal of such erection at the cost, risk
and responsibility of the licensees....
Even if any such construction is put up by obtaining permission, the Licensee shall demolish and remove the super structure at his cost. The
above condition further reads:-
...The licensee shall demolish and remove the super structure at his cost within 30 days of termination of the licence. If not so demolished,
removed and the space rendered vacant the licensor shall demolish and remove the superstructure and the cost thereof shall be recovered and
remove the superstructure and the cost thereof shall be recovered from the licensee and the licensee shall also forefeit the security deposit....
When the terms of allotment is subject to the above conditions laid in Clause 5, the Plaintiff cannot contend that he has put up superstructure of
permanent character and that his licence has become irrevocable u/s 60(b) of the Indian Easements Act. This proposed Amendment also
introduces a totally new case.
Learned counsel for the First Defendant has submitted that the Licence was terminated even by the proceedings dated 31.10.1996 and the
Plaintiff was required to vacate the space. After considering the representation of the Plaintiff dated 15.11.1996, he was permitted to continue to
be in occupation upto 31.03.1997. Thereafter, upon considering the representation of the Plaintiff, he was allowed to continue upto 30.06.1997.
Inspite of the same, the Plaintiff had not vacated the space. By the proceedings dated 05.07.1997, the Plaintiff was again asked to vacate space on
or before 30.09.1997. Without complying with the request and handing over the open space, the Plaintiff has filed the Suit. The merits of this
contention is to be determined only at the trial stage. Suffice it to point out that the proposed Amendment introduces a new cause, causing
prejudice to the Defendants Port Trust.
Submitting that the proposed Amendment can be allowed at any stage of the proceedings to clarify any averments lacking in relevant
particulars, learned counsel for the Revision Petitioner has relied upon the decision reported in Fritiz T.M. Clement and Another Vs. Sudhakaran
Nadar and Another, . In the said decision, the omissions and mistakes which crept into the Plaint inadvertently were allowed to be corrected by
the Amendment. In the case in hand, the proposed Amendment is not an Amendment seeking to clarify omissions and mistakes nor to correct the
mistake which crept in the Plaint inadvertently. But, as discussed earlier, the proposed Amendment seeks to introduce entirely a new case, which
cannot be allowed.
The Proposed Amendment is not an Additional approach on the same set of facts. But, it introduces entirely a new case. The Plaintiff''s
contention that terms of Allotment is not bound by Clause 5(c) Chapter I, Book II of Trust''s Scale of Rates and that he has put up super structure
of permanent character and the Licence has become irrevocable are entirely contradictory to the earlier plea, wherein he has filed the suit for
declaring him as a Tenant. The Trial Court has rightly declined the proposed Amendment. The Impugned Order does not suffer from any material
irregularity or jurisdictional error. This Civil Revision Petition has no merits and the same is bound to fail.
For the foregoing reasons, the order dated 31.01.2002 of the XIV Assistant Judge, City Civl Court, Chennai made in I.A.No. 4403 of 2001
in O.S.No. 7033 of 1997 is confirmed and this Civil Revision Petition is dismissed. The XIV Assistant Judge, City Civil Court, Chennai is directed
to expedite the Trial in O.S.No. 7033 of 1997 and dispose of the Suit in accordance with law. It is further ordered that the Trial Court may not be
influenced by any of the views expressed in this order. In the circumstances of the case, there is no order as to costs. Consequently, the connected
C.M.P.No. 8993 of 2002 is closed.