Vadivel vs Natarajan and Others

M. Chockalingam, J.—This revision petition is preferred by the plaintiff in a suit in O.S.No.67 of 1992 pending on the file of the learned

District Munsif, Dharampuri.

Originally, the said suit was filed for declaration of title which consequential permanent injunction. The suit was contested by the respondents

defendants by filing a written statement and issues were framed. Pending the suit, the instant application in I.A.No.350 of 1996 was filed by the

plaintiff, seeking amendment of the plaint to introduce two new prayers, namely, recovery of possession and mandatory injunction. After hearing

the objections raised by the respondents/defendants, the application was dismissed, which has brought forth this civil revision petition.

What was contended by the revision petitioner/plaintiff before the Court below and equally here also is that at the time of filing of the suit, an

interlocutory application was filed for permanent injunction and after disposal of the same by the Trial Court, a civil miscellaneous appeal was

preferred wherein, the first appellate forum found that a part of the property was in possession of the plaintiff, while the remaining part was with the

defendants. Under the stated circumstances there arose a necessity for the plaintiff to amend the plaint for the purpose of recovery of possession of

that part of the property what was found to be in possession of the defendants. Added further the learned Counsel that during the pendency of the

proceedings, there was an installation of pipelines by the defendants and hence, by granting of mandatory injunction, the defendants should be

directed to remove the same.

Opposing the contentions, the learned Counsel for the respondents would urge that the lower Court was perfectly correct in dismissing the

application, since the date of taking of possession by the defendants is not averred in the affidavit and an Advocate Commissioner appointed by

the Court, on inspection of the property has filed a report stating that the pipeline were in existence even at the earliest and thus, now the relief of

mandatory injunction is hopelessly barred by limitation, and hence, the amendment should not be allowed. Therefore, the lower Court''s order has

got to be sustained.

After careful consideration of the rival submissions, the Court has to necessarily agree with the contentions put forth by the plaintiffs side. It was

a suit for declaration and for consequential permanent injunction. It is not in dispute that after the disposal of the interlocutory application for interim

injunction, a C.M.A. was preferred, wherein a part of the property was found to be in possession of the defendant and a part of the property was

found in the possession of the plaintiff. In respect of that defendant, now the plaintiff has come forward with the instant application for amendment

to include the relief of recovery of possession, and hence, that has got to be ordered. It cannot be stated in view of the above that the character of

the suit is changed. Insofar as the question as to the mandatory injunction is concerned, the Court is of the view that even as to the question of

limitation has got to be raised, the defendants could well raise the same in the additional written statement and it has got to be adjudicated upon by

the Trial Court. The Counsel for the revision petitioner relied on a decision of the Supreme Court in Ragu Thilak D-John V. S.Rayappan and

others, (2001) 2 SCC 472, wherein the Honourable Supreme Court has held that ""Civil Procedure Code, 1908-Order VI, Rule 17 - Amendment

of plaint - relief sought barred by limitation - where it is arguable that relief sought by way of amendment would be barred by law of limitation, held

amendment should still be allowed and the disputed matter made the subject matter of an issue"". Hence, in view of the abovesaid decision of the

Supreme Court, insofar as the question of the limitation in respect of the second prayer for mandatory injunction is concerned, the defendants are

at liberty to raise the same in the additional written statement and the lower Court is also directed to try the same and decide the issue. Under the

stated circumstances, the order of the lower Court is set aside. The lower Court is directed to permit the plaintiff to amend the plaint accordingly

and give sufficient time to the defendants to file a written statement and frame necessary issues and dispose of the same in accordance with law.

In result, the I.A. 350 of 1996 is allowed. The civil revision petition is allowed, leaving the parties to bear their costs. Consequently, connected

C.M.P. is closed.