Allowed

Arulmighu Aathimooleswarar v. Gurumoorthy

Madras HC4 Apr 2014CRP/411/2007

Case brief

AI extract

What is this about?

High Court allowed a civil revision petition permitting the amendment of a plaint despite the trial's commencement. The appellant claimed encroachment during pendency, seeking recovery of possession alongside an existing permanent injunction suit. Citing precedents to avoid multiplicity of suits, the court set aside the trial court's dismissal and granted permission to amend.

What did the court decide?

Civil Revision Petition allowed; Impugned order in I.A.No.391 of 2006 set aside; Permission granted to amend the plaint.

Arulmighu Aathimooleswarar Vs Gurumoorthy — Contract and Commercial Disputes | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated: 04.04.2014

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CORAM:

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The Hon'ble Mr. Justice R.KARUPPIAH

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Civil Revision Petition No.411 of 2007

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Arulmighu Aathimooleswarar Thirukoil, Agaram, Represented by its Executive Officer,K. Sivakumar, Having office at Arulmighu Muthukumrasamy Thirukoil, Big Bazaar Street, Protonovo & Post, Chidambaram Taluk. .. Petitioner/Plaintiff vs Gurumoorthy .. Respondent/Defendant

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The Civil Revision Petition filed under Article 227 of the Constitution of India against the fair order and decretal order dated 20.12.2006 passed in I.A.No.391 of 2006 in O.S.No.11 of 2006 on the file of the District Munsif-cum-Judicial Magistrate Court, Portonovo.

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For Petitioner ... Mr.R.Sunil Kumar For Respondent ... No Appearance (Notice served) O R D E R

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The civil revision petition has been filed against the fair order and decretal order dated 20.12.2006 passed in I.A.No.391 of 2006 in O.S.No.11 of 2006 on the file of the District Munsif-cumJudicial Magistrate Court, Portonovo.

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2.The revision petitioner herein is the plaintiff and the respondent herein is the defendant in O.S.No.11 of 2006.

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https://hcservices.ecourts.gov.in/hcservices/

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3.The revision petitioner/plaintiff filed a suit in O.S.No.11 of 2006 on 28.3.20006 seeking a relief of permanent injunction against the respondent herein. The respondent/defendant filed a written statement. The trial Court after framing the issues posted the matter for trial. After the commencement of the trial and after chief examination of P.W.1, the revision petitioner has filed an application in I.A.No.391 of 2006 seeking the relief to amend the plaint on 4.12.2006.

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4.In the affidavit filed in support of the application, it is stated that the respondent trespassed into a portion on the Southern side of the suit property described as "B" schedule (i.e.) a portion of "A" schedule property in August 2006 and hence, he filed an application to amend the plaint for seeking the relief of recovery of possession in respect of “B” schedule property. Opposing the averments made in the affidavit, the respondent filed a detailed counter, in which, it is stated that the respondent put up a thatched house, which was admitted by the temple Management and it is in possession of the respondent for many years. The revision petitioner opposed the petition filed by the respondent to appoint the Advocate Commissioner because the truth would come out. It is further stated that the revision petitioner has not given any police compliant and only to fill up lacuna, the application has been filed and therefore, he prayed for dismissal of the application.

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5.The trial Court on considering the arguments advanced by the learned counsel on either side and also relying upon the decision in D.RAMANUJAM VS. R.PANNEERSELVAM (2006 (3) CTC 27 (MAD) and finally held that amendment of pleading cannot be allowed after the commencement of trial and dismissed the application as the trial was already commenced. Aggrieved by the said order of dismissal passed by the trial Court, the civil revision petition has been filed.

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6.Heard Mr.R.Sunilkumar, learned counsel appearing for the revision petitioner. Though notice was served, there was no representation for the respondent.

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7.The learned counsel for the revision petitioner submitted that the respondent trespassed a portion of the suit property only during the pendency of the suit. After came to know about the trespass, the revision petitioner has approached their concerned authorities for getting approval to file an application and thereafter they filed the application with a delay of four months. In support of his submission, the learned counsel for the revision petitioner relied on a decision in M.PALANISAMY VS. VALMOORTHY AND OTHERS reported in [2010 (1) L.W 377], wherein the relevant portion from paragraph 17 reads as follows:

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“As per the dictum laid down by the Hon'ble Apex Court in the aforesaid judgment, the provisions made in Section 22 of the Act are found intended for avoiding multiplicity of proceedings. If really, the plaintiff is directed to go for filing a separate suit for possession from the date of execution of the sale deed, it would certainly defeat the ends of justice and it would be against the tenor of the judgment rendered by the Hon'ble Apex Court. According to the said judgment the provisions of Section 55(1) of the Transfer of Property Act was referred to and the execution of the sale deed by the Court would provide the decree holder, the title as well as the possession of the property. It has also been categorically found by the Hon'ble Apex Court that the right to possession is incidental to the Specific Performance of Contract of sale. Rightly, it has also been ordered that the necessary amendment could be permitted at any stage of proceedings even at the stage of execution in order to avoid multiplicity of proceedings. As per the aforesaid dictum, the respondent/plaintiff is at liberty to amend the plaint as well as the decree even at the stage of execution.”

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8.Admittedly, the suit property belongs to the revision petitioner and it is not in dispute that the revision petitioner filed a suit for permanent injunction against the respondent from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. As the respondent encroached the suit property, the revision petitioner filed the application to amend the plaint.

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9.It is alleged in the affidavit that during the pendency of the suit, the respondent encroached a portion of the property and put up a thatched house in the said portion of the property. The contention of the respondent in the said application is that the respondent put up the thatched house several years ago and the same was admitted by the revision petitioner/temple Devasthanam and the said fact was willfully hidden by them while filing the suit. As rightly pointed out by the learned counsel for the revision petitioner, the above said facts have to be decided in the original suit (i.e.) whether the thatched house was put up after filing of the suit or before filing of the suit? If not permitted to amend the plaint, the revision petitioner ought to have withdrawn the suit and file a fresh suit. As rightly pointed out by the learned counsel for the revision petitioner, the trial Court rejected the application only on the ground that the chief examination of P.W.1 was closed. In view of the decision cited supra, to avoid multiplicity of the proceedings and

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https://hcservices.ecourts.gov.in/hcservices/

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in the interest of justice, this Court is of the view that the revision petition is to be allowed and permission is to be given to amend the plaint as prayed for in the application.

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10.In the result, this civil revision petition is allowed and the order passed in I.A.No.391 of 2006 in O.S.No.11 of 2006 is set aside and the same is allowed. No costs. Consequently, miscellaneous petition is closed.

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Sd/--
Assistant Registrar(CS-II)
dt. 21.4.14
/True Copy/
Sub. Assistant Registrar
cla
To
The District Munsid -cum-Judicial Magistrate,
Portonovo.
+ 1 cc to Mr.R. Sunilkumar, Advocate sr.16326
C.R.P.No.411 of 2007
CTK(CO)
Eu 21.4.14

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https://hcservices.ecourts.gov.in/hcservices/

Arulmighu Aathimooleswarar v. Gurumoorthy

Case brief

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Arulmighu Aathimooleswarar v. Gurumoorthy

Case brief

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