High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 7.6.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(PD) No.256 of 20041.Church of South India Trust Association Tiruchirapalli-Thanjavur Diocesan Council represented by its Diocesan Treasurer Mr.R.Sureshkumar2.Church of South India Trust Association Tiruchirapalli-Thanjavur Diocesan Council represented by its Secretary, Paul Vaasanthakumar3.paul Vasanthakumar, Kuruthuva Secretary of Church of South India Trust Association Tiruchirapalli-Thanjavur Diocesan Council.4.Rev.Chinnaparaj, President Dharapuram Diocese... Petitioners/Petitioners/Plaintiffs.vs.1.KovilPillai2.Samiyathal3.Sukumaran4.Dhanapal5.Gnanamani6.Ramani7.The Commissioner Dharapuram Municipality Dharapuram Town8.The District Collector Collectorate, Erode, Dharapuram Taluk & Dist.9.The Tahsildar Taluk Office, Dharapuram Town & Taluk... Respondents/Respondents/Defendants.Revision Petition filed against the order dated 13.1.2004, passed inI.A.No.2128/2003 in O.S.No.249/1990 on the file of the District MunsifCourt, Dharapuram. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners: M/s.F.X.A.F.DennyFor Respondents: Mr.V.Meenakshisundaram1 to 6.ORDER: This Revision Petition has been filed against the order dated13.1.2004, passed in I.A.No.2128/2003 in O.S.No.249/1990 on the file ofthe District Munsif Court, Dharapuram. 2.The plaintiffs in O.S.No.249/1990 on the file of the DistrictMunsif, Dharapuram are the revision petitioners. They are aggrieved bythe order of the trial court dated 13.1.2004 by which the amendmentapplication filed by them in I.A.No.2128/2003 is dismissed.3.The plaintiffs filed O.S.No.249/1990 for a declaration to declarethat the suit properties belong to them and for a mandatory injunction toremove the construction put up by defendants 1 to 6 on the suit scheduleproperties. The plaintiffs' case is that they have been in continuouspossession of the suit schedule property on the basis of the acquisitionproceedings of the revenue authorities dated 2.4.1916. 7th defendant whois the Commissioner of the Dharapuram municipality filed a writtenstatement in March 1992 stating that the suit property belonged tomunicipality and it was acquired for their purpose. 9th defendant who isthe Tahsildar in his written statement filed on 22.12.1998 stated thatthe patta of the suit properties stood in the name of the municipality butthe same was converted into Natham Poramboke by G.O.No.761/RevenueDepartment dated 13.8.96 and therefore it belonged to Government.4.While so, in December 2003, the plaintiffs filed I.A.No.2128/2003under Order 6 Rule 17 CPC to add the following in the body of the plaintat the end of para 7 of the plaint:"The plaintiffs' possession of the suit propertyadmittedly, originates on 2.4.1916. If for any reasonthis Hon'ble court comes to the conclusion that theacquisition proceedings for 6 acres including the suitproperty in the year 1916 did not include the interestof the Methodist Mission, into whose shoes, the Churchof South India had stepped in, the Methodist Missionand subsequently, the Church of South India haveperfected title by adverse possession of the suitproperty right from the date 2.4.1916 till date. Theplaintiffs further submit that the continuation andexclusive possession and enjoyment in the hands of theMethodist Mission land subsequently the CSI which couldbe characterised only as a possession by the churchwhich was constructed in the year 1916 itself, would https://hcservices.ecourts.gov.in/hcservices/ lead to the characterisation of the suit property, onlyas a temple site into which do main the Government hasno locus standi in view of Section 2(1)(e) of the TamilNadu Land Land Encroachment Act 1905".5.Th plaintiffs also wanted an alternative prayer in the prayer columnafter the existing prayer which reads as under: "and alternatively declare that the MethodistMission land subsequently the Church of South India hadperfected title in the suit property by adversepossession right from 2.4.1916 till date."6.This Application was opposed by 1st defendant by filing a counter onthe ground that when the suit was pending for 13 years, the Applicationhas been filed only to further protract the litigation and the alternativeprayer would lead to a new cause of action and alter the character of thesuit.7.The trial court by order dated 13.1.2003 dismissed the Applicationon the ground that it is belated and it would alter the character of thesuit. Aggrieved by the same, the above Civil Revision Petition has beenfiled under Article 227 of the Constitution of India.8.Heard the learned counsel for the Revision Petitioners and thelearned counsel for respondents 1 to 6. I have also perused the documentsand the judgments referred to by them in support of their submissions.9.The learned counsel for the revision petitioners submitted that thetrial court failed to take note of the settled legal principles thatamendment could be ordered at any time on terms and the alternative prayersought for in the amendment in addition to the existing prayer would notalter the nature and character of the suit.10.The learned counsel relied on the following decisions in support ofhis submissions:1)AIR 1997 Mad.368 (Md.Salih v. T.C.Adam)2)1997(2)CTC 12(Muthammal v. Thamburati)3)2004(2)M.L.J.80(Kantharaju v. Dr.N.Kuppuswami) 4)2004(2)M.L.J.211(Sengodan v. Sengodan5)2004(2)M.L.J.411(Sarammal v. Dilshad Begum)6)2004(2)M.L.J.620(Gunaseelan v. Thamilselvi)11.Per contra, the learned counsel for respondents 1 to 6 submittedthat the amendment sought for would definitely alter the nature andcharacter of the suit and the huge delay is rightly put against thepetitioners by the trial court. https://hcservices.ecourts.gov.in/hcservices/

12.I have considered the rival submissions carefully with regard tofacts and citations.13.A perusal of the judgments cited by the learned counsel for thepetitioners would bring out the following principles that are governingthe Application filed under Order 6 Rule 17 CPC:1)Amendment to the pleadings cannot be turned down by courts merely on thescore that they introduce an inconsistent plea or a new cause of action. 2)The true test is whether the amendment is foreign to the subject matterof the suit and if not whether it would be in the interest of justice togrant it. 3)Amendment may be allowed irrespective of law of limitation, if the causeof action is not going to be changed and in the interest of justice.4)Since the amendment of the plaint being the discretion of the court, itneed not be refused on technical grounds.5)Alternative relief sought by way of amendment can be allowed even ifbelated, but the other side should be compensated with costs.6)Allowing of this Application is a rule and rejection is an exception.7)Pre-trial amendment are to be allowed more liberally than those whichare sought to be made after the commencement of trial or after theconclusion thereof.8)If it is permissible for the plaintiff to file an independent suit,there is no difficulty in accepting his Application for amendment ofplaint.14.Now let me consider the facts of the present case in the light ofthe above well settled legal principles.15.The main prayer in the suit is for a declaration to declare thatthe suit property belongs to the plaintiffs on the basis of theiruninterrupted possession. The municipality in their written statementcontended that the property belonged to them and the Tahsildar on22.12.1998 filed a written statement stating that the property belonged tothe Government. In such circumstances, the amendment Application wasfiled for an alternative prayer of perfection of title by adversepossession and also a descriptive para to be added in the plaint to thiseffect.16.It is true that the suit has been pending from 1990 onwards, butthe written statement of the Tahsildar was filed only in December 1998.Further, delay alone is not the criterion to reject an Application filedunder Order 6 Rule 17 CPC. If the proposed amendment does not bring in a https://hcservices.ecourts.gov.in/hcservices/ new cause of action or does not alter the nature and character of thesuit, the same could be allowed, even if it is belated by ordering cost tothe other side by way of compensation.17.The trial court observed that the trial has commenced and the suitis posted for cross-examination of defendants 7 to 9 and therefore theamendment Application if allowed would further delay the proceedings.This reasoning given by the trial court is not correct as amendment couldbe ordered at any time at any stage of the proceedings for the purpose ofdetermining the real questions in controversy between the parties.Further in my considered view the proposed alternative prayer and theaddition of description in the plaint would not alter the nature andcharacter of the suit and in fact it is in consonance with the pleadingsof the plaintiffs pleading that they have been in possession of theproperty right from 2.4.1916. It is also pertinent to add that neitherthe Government nor the municipality have filed a counter opposing theamendment application.18.Hence I am inclined to interfere with the orders of the trialcourt. Accordingly the order of the trial court dated 13.1.2004 is setaside and I.A.No.2128/2003 is allowed as prayed for on condition, theplaintiffs/revision petitioners should pay a sum of Rs.3,000/- torespondents 1 to 6 herein within 3 weeks from the date of receipt of theorder. On such compliance of the payment of Rs.3,000/, the trial courtis directed to permit the revision petitioners/plaintiffs to carryout theamendment. On such amendment is being carried out, the defendants in thesuit are at liberty to file additional written statements, documents, ifany and to let in further evidence in this regard. It is also made clearthat if the plaintiffs/revision petitioners fail to comply with thedirection of payment of cost within the time stipulated above, the CivilRevision Petition shall stand dismissed and the order of the trial courtdated 13.1.2004 is restored automatically without further reference tothis court.19.Considering the fact that the suit has been pending for the past 17years, the trial court is directed to show utmost urgency and conduct theproceedings preferably on day-to-day basis and dispose of the suit itselfwithin 8 months from today.20.With the above directions, the above Civil Revision Petition isallowed. No costs. C.M.P.No.2776/2004 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsks https://hcservices.ecourts.gov.in/hcservices/ To1. The District Munsif,Dharapuram.+ 1 CC to Mr.F.X.A.Denny, Advocate SR NO 32844C.R.P.(PD)256/04.bv[co]gp/21.6