Ramachandran (Died) (R. Rajammal, R. Baranidharan and R. Vaishnavi) vs The Deputy Commissioner, Executive Officer, The Executive Officer, Arulmigu Prasanna and The Assistant Commissioner, H.R. and C.E.

M.M. Sundresh, J.—The plaintiff is the petitioner herein. The suit was filed by the plaintiff in O.S. No. 446 of 2004 seeking the relief of

declaration and permanent injunction against the respondents herein. The declaration has been sought on the ground that the suit property is not the

property of the Religious Institution or Endowment of the defendants. It is the case of the plaintiff that the suit property originally belong to one

Narayana Rao and the plaintiff has become the tenant over the suit property for a long number of years and the said tenancy right has been

converted into absolute right. Hence the suit has been filed on the ground that the plaintiff has acquired title by prescription and adverse possession.

Pending the suit, an application was filed by the petitioner in I.A. No. 401 of 2006 seeking amendment of the plaint on the ground that there

should be declaration that the plaintiff is the owner of the suit property, the relief of mandatory injunction and change in the description of the suit

property, since oversight it has been wrongly given. The Court below has dismissed the said application by holding that the petitioner herein is

trying to create a new case and the application has been filed after a delay of nearly 11/2 years. Challenging the same, the revision has been filed.

The learned Counsel for the petitioner submitted that the suit has been filed based upon the plea of prescription and adverse possession against

the original owner Narayana Rao. Therefore according to the learned Counsel, the inclusion of the ownership in the prayer is nothing a

consequential one and the respondents will not be prejudiced by the same. The learned Counsel also submitted that the said amendment does not

amount to introducing a new case or change in the cause of action. The learned Counsel also submitted that in view of the fact that the petitioner

has been dispossessed. Pending the suit, the suit will have to be amended for mandatory injunction instead of permanent injunction and the

amendment for description of the property has to be allowed, since the same is a typographical error.

The learned Counsel relied upon the judgment reported in 2004 (1) MLJ 100 (Sellammal (now deceased) and Ors. v. M. Natesan), to submit

that pre-trial amendment has to be allowed liberally. The learned Counsel also relied upon the judgment reported in 2008 (3) MLJ 287 (Usha Devi

v. Rijwan Ahamed and Ors.) and 2008 (4) MLJ 258 (Puran Ram v. Bhaguram and Anr.), to content that the description of the property does not

amount to introduce a new case and pre-trial amendment has to be allowed liberally. The learned Counsel also relied upon the judgment reported

in 2007 (6) MLJ 313 (Andhra Bank v. ABN Amro Bank N.V. and Ors.), in support of his case to submit that the merits of the case cannot be

decided in an amendment application.

Per contra, the learned Counsel for the respondents submitted that mutually destructive and contradictory plea cannot be allowed to be raised.

According to the learned Counsel, it is well settled principle of law that a tenant cannot raise the plea of adverse possession. The learned Counsel

further submitted that the plea of amendment regarding mandatory injunction cannot be accepted since it is an attempt to evade the payment of the

requisite Court fee seeking the plea of possession. The learned Counsel also relied upon the judgment reported in 2005 (4) LW 246

(Gnanasekaran v. Mani), to submit that without seeking the relief of possession the plea of mandatory injunction cannot be sought for with sole

view to avoid the payment of Court fee.

In the present case, as rightly contended by the learned Counsel for the petitioner the suit has been filed on the ground that the petitioner was a

tenant of a third party for a long time and thereafter he is enjoying the same as a owner based upon prescription and adverse possession.

Therefore, this Court is of the opinion that the proposed amendment seeking to incorporate the plea of title in the prayer of the plaint cannot be

said as contradictory to the plea taken in the plaint. The contention of the learned Counsel for the respondents that the said plea is contrary to the

plea of tenancy cannot be decided at this stage. In so far as the plea of correction in the description of the suit property is concerned, the same also

will have to be allowed. Changing the description of the suit property would not amount to introducing a new case or change in cause of action.

The Hon''ble Supreme Court in the judgment reported in 2008 (3) MLJ 287, (Usha Devi v. Rijwan Ahamed and Ors.), has held that the prayer

for amendment relating to the correction of the description of the suit property has to be allowed. It is further held that when the proposed

amendment is necessary for deciding the dispute between the parties, the same has to be allowed. The Hon''ble Supreme Court reported in 2008

(4) MLJ 258, (Puran Ram v. Bhaguram and Anr.), has held that the amendment regarding the description of the suit property is a formal

amendment and the Court has to be liberal towards the same.

In so far the plea of mandatory injunction is concerned, as rightly contended by the learned Counsel for the respondents, the said plea cannot be

accepted. In the judgment reported in 2005 (4) LW 246, (Gnanasekaran v. Mani), the Hon''ble High Court has held that in the guise of mandatory

injunction a party cannot be allowed to escape from the payment of Court fee u/s 30 of the Act without seeking the relief of possession. In the said

judgment, it has been held that when a person is dispossessed, the said person will have to ask for possession and not mandatory injunction. On a

reading of the said judgment, this Court is of the opinion that the prayer sought for seeking to include the relief of mandatory injunction cannot be

allowed. However, it is not in dispute that the petitioner has been dispossessed, pending suit. It is also not in dispute that the petitioner has filed a

suit for declaration. A party who has been dispossessed pending the suit is entitled to seek for possession by filing appropriate application. In the

judgment reported in 1993 (1) MLJ 375 (Radhakrishnan v. Auvadai Ammal and Anr.), the Hon''ble High Court has held that in such a situation

the prayer for amendment can be sought for.

It is also a settled principle of law that in the amendment application the merits of the case cannot be gone into. In the judgment reported in 2007

(6) MLJ 313 (Andhra Bank v. ABN Amro Bank N.V. and Ors.), the Hon''ble Supreme Court has held that the merits of the case cannot be gone

into in a application for amendment. Similarly in the judgment reported in 2008 (3) MLJ 287, (Usha Devi v. Rijwan Ahamed and Ors.), the

Hon''ble Supreme Court has held that the merits of the case cannot be gone into while deciding an application for amendment. Admittedly in the

present case the suit is at of pre-trial stage. Therefore as held by the Hon''ble High Court in the judgment reported in 2004 (1) MLJ 100

(Sellammal (now deceased) and Ors. v. M. Natesan), such an amendment will have to be viewed liberally.

Therefore, taking into consideration of the above said facts, the revision is allowed in part in so far as the amendment sought for declaring the

title of the petitioner is concerned and also the correction and change in the description of the suit property is concerned. However in so far as the

amendment sought for by adding the relief of mandatory injunction to file the same is rejected and liberty is give to the petitioner to file appropriate

application before the Court seeking the relief by adding appropriate Court below and as and when such application filed, the Court below is

directed to consider the same in accordance with law without reference to the order passed in I.A. No. 401 of 2006 as well as the order passed

by this Court in this revision. Hence the revision is allowed to the extent indicated above. No costs. Consequently, the connected miscellaneous

petition is closed. The respondents are permitted to file additional written statement if any within a period of six weeks from the date of receipt of

copy of this order and the respondents are permitted to raise all pleas permitted under law.