P. Joseph vs M.T. Santiagu

S.S. Subramani, J.—Plaintiff in O.S. No. 752 of 1997 on the file of the 1st Additional District Munsif Court, Dindigul is the Revision

Petitioner. The petitioner filed a petition in I.A. No. 141 of 1999 to amend the plaint. His application was dismissed. Plaintiff filed a suit for

recovery of money by sale of the mortgaged property. The mortgage that is sought to be enforced was unregistered and consequently plaintiff

could not get a decree, as if there is a valid mortgage. Plaintiff therefore wanted to amend the plaint seeking personal decree against the defendant

and making use of the unregistered mortgage deed as an agreement of loan.

The lower Court dismissed the application on the ground that it is belated and also on the ground that the nature of the suit is changed.

Though notice was served on the respondent and his name printed in the cause list, no attempt was made by him to contest the case. On going

through the order passed by the lower court and after hearing counsel for petitioner and perusing the records, I find that the order of the lower

Court requires interference. Since the mortgage deed is unregistered, at the most it could be said that plaintiff cannot enforce, as if it is a mortgage.

But it could be taken as an agreement of loan and the loan could be proved on the basis of admission in the document itself. As there is no change

of cause of action nor in the nature of the suit, the finding of the lower Court that that plaintiff is not entitled to amend the plaint is not correct.

Hence the order of lower Court is set aside and this Revision is allowed. Petitioner is directed to incorporate the amendment within one month

from the date of production of copy of this order before the lower Court. After incorporating the amendment, the respondent will be given an

opportunity to file additional written statement to the amended portion of the plaint. This Revision is allowed accordingly. Consequently, C.M.P.

No. 20770 of 1999 is closed.