D. Radhakrishnan v. City Corporation of Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **SATURDAY, THE 31ST DAY OF MAY 2014/10TH JYAISHTA, 1936** **WP(C).No. 6985 of 2010 (O)** **---------------------------** ## **AGAINST THE ORDER IN OS 1002/2006 of MUNSIFF'S COURT, THIRUVANANTHAPURAM** **PETITIONER(S):** **-----------------** **D.RADHAKRISHNAN, S/O.LATE SRI.DAMODARAN, AGED 65 YEARS RESIDING AT "RITA BHAVAN", R.K.V.ROAD, MUSEUM THIRUVANANTHAPURAM.** **BY ADV. SRI.G.S.REGHUNATH** **RESPONDENT(S)/1:** **--------------------------------** **CITY CORPORATION OF THIRUVANTHAPURAM. REPRESENTED BY ITS SECRETARY CORPORATION BUILDING MUSEUM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.N.NANDAKUMARA MENON (SR.) SRI.P.K.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 6985 of 2010 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 : COPY OF THE PLAINT IN O.S.NO.1002/2006 BEFORE THE MUNSIFF'S COURT, THIRUVANANTHAPURAM.** - **P2 : COPY OF THE WRITTEN STATEMENT IN O.S.NO.1002/2006.** - **P3 : COPY OF THE COMMISSION REPORT.** - **P3(a) : COPY OF THE PLAN APPENDED TO EXT.P3 COMMISSION REPORT.** - **P4 : COPY OF THE I.A.NO.3727/2009.** - **P5 : COPY OF THE OBJECTION TO EXT.P4.** - **P6 : COPY OF THE ORDER DATED 23/06/2009 IN I.A.NO.3727/2009 IN O.S.NO.1002/2006.** ## **RESPONDENT'S EXHIBITS** ## **: NIL** **//TRUE COPY//** **P.A TO JUDGE** **stu** ## **K.HARILAL, J.** = = = = = = = = = = = **W.P.(C).No.6985 of 2010** = = = = = = = = = = = = = = = Dated this the 31[st] day of May, 2014 **J U D G M E N T** The petitioner is the plaintiff in O.S.No.1002 of 2006 as well as the petitioner in I.A. No.3727 of 2009 filed therein. The suit was filed for a mandatory injunction directing the City Corporation of Thiruvananthapuram, the defendant, to restore the southern boundary line of plaint 'A' schedule property, after removing the road constructed, encroaching into plaint 'A' schedule property and for prohibitory injunction restraining the defendant from encroaching into plaint 'A' schedule property or committing any waste over it. A commissioner was appointed to ascertain the alleged encroachment made on the southern boundary. The commissioner filed Ext.P3 report and Ext.P3 (a) plan. In the report, the Commissioner has stated that as per the measurement on the basis of survey plan, 1.535 cents of property is also taken from 'A' schedule property W.P.(C).No.6985 of 2010 **==> picture [7 x 9] intentionally omitted <==** for the construction of the eastern tar road. In view of the above observation made in the commission report, the petitioner filed Ext.P4 application to amend the plaint and include an allegation that encroachment is on the eastern side also. Accordingly 'B' schedule, the encroached portion of southern boundary was also sought to be corrected as southern and eastern portions of 'A' schedule property and its extent as 1.535 cents. In the relief portion also, the restoration of 1.535 cents of property taken for the construction of eastern tar road is also sought to be incorporated in addition to southern 2.5 cents. 2. The respondent objected the amendment application by filing a counter statement contending that road in the eastern side of the plaint 'A' schedule property was tarred much earlier and while instituting the suit the petitioner has no case that there was an encroachment on the eastern side of the plaint schedule property. It is also contended that the amendment was with a mala fide intention to grab the property which forms a part of eastern tarred road and to W.P.(C).No.6985 of 2010 **==> picture [7 x 10] intentionally omitted <==** harass the defendant and if the same is allowed, it will cause prejudice to them. After considering the rival contentions, the court below dismissed the amendment application as not maintainable and also it is found that if the prayer sought to be amended, is allowed, it will cause prejudice to the defendant. 3. The learned counsel for the petitioner advanced arguments challenging the findings by which the amendment application has been dismissed. The learned counsel further contends that the amendment is sought for on the basis of the commission report which specifically reported that 1.535 cents of property had been taken away from 'A' schedule property for the construction of the eastern tar road also. Therefore, the amendment is sought for, in accordance with the report filed by the commissioner. The main plank of the argument is that the question of limitation cannot be looked into while considering the application for amending the plaint. No prejudice will be caused to the defendant by allowing the W.P.(C).No.6985 of 2010 4 amendment. 4. The learned counsel further cited **Abdulla v. Pathumma** (2003 (2) KLT 289) and **Rajeshkumar Aggarwal v. Modi** (2006 (3) KLT 192 SC). 5. Per contra, the learned counsel for the respondent advanced arguments to justify the findings in the impugned order . The learned counsel submits that in the plaint the petitioner has no case that the defendant has encroached any portion of the property from the eastern side for the construction of eastern road. The amendment is sought for on the basis of the commission report alone. Thus, the amendment sought for goes beyond the cause of action alleged in the plaint and if the amendment is allowed the same will cause prejudice to the defendant. 6. In view of the rival submissions, the short question that arises for consideration is, whether there is any illegality or impropriety in the findings by which the amendment application has been dismissed ? 7. Going by the plaint, it is seen that, the only W.P.(C).No.6985 of 2010 5 allegation against the defendant is that the defendant corporation through their contractors have encroached considerably and annexed about 2.5 cents of property from the southern side of the plaint 'A' schedule property adjacent to the southern public road and such encroachment was made by destroying boundary lines on the southern side of the plaint schedule property wherein shrubs and other trees were planted to demarcate the property with the aforesaid corporation road. It is also averred that to the utter shock of the plaintiff, the said portion of the road was tarred on 15/06/2006 clandestinely. In the cause of action portion also, it is specifically stated that cause of action has arisen on 15/06/2006 when the defendant illegally tarred the southern road portion. On 17/11/2006, the defendant has filed a written statement denying the allegation that the defendant has encroached southern boundary of the 'A' schedule property for widening the road and tarred the said road on 15/06/2006. 8. Later, two years after filing the written statement, W.P.(C).No.6985 of 2010 **==> picture [7 x 10] intentionally omitted <==** on the application of the plaintiff, a Commission had been deputed to ascertain the extent and details of 'B' schedule property which is scheduled as the alleged encroached portion on the southern side, on the application of the plaintiff. The Commissioner was also asked to ascertain the nature, lie and location of the plaint 'A' schedule property, in addition to the ascertainment of southern encroachment. Going by the Commission report, it is seen that, the Commissioner has categorically reported that southern road had been tarred encroaching an extent of 1.535 cents of property from plaint 'A' schedule property. While describing the nature, lie and location of the property, incidentally, the Commissioner had reported that as per the measurement, 1.535 cents of property which lies on the eastern boundary of 'A' schedule property is also seen taken for the construction of the eastern road which lies in north-south direction and the said road is a tarred road. Now, the plaintiff has filed the amendment application on the basis of this observation of the W.P.(C).No.6985 of 2010 7 Commissioner alone, without a cause of action. Going by the matters sought to be ascertained in the Commission application, it could be seen that the Commissioner was not asked to ascertain the property which was taken away from the eastern boundary of 'A' schedule property for the construction of the eastern tar road, as the plaintiff had no such case. But, the Commissioner has accidentally reported the same, while describing the description and lie of the property. Obviously, it is seen that the plaintiff is trying to set up a new case that there is an encroachment from the eastern portion of 'A' schedule property also for the construction of eastern road. Interestingly, in the plaint averments plaintiff has no such case that the defendant has encroached the eastern portion of plaint schedule property for the construction of the road. Needless to say, a new case is sought to be introduced by way of amendment and the relief is also sought to be amended on the basis of the new case, without a cause of action. As regards the matters sought to be incorporated by way of amendment, the same W.P.(C).No.6985 of 2010 **==> picture [7 x 10] intentionally omitted <==** is lacking the pleadings and cause of action in the original suit. Even in the matters sought to be introduced in the plaint, the plaintiff has no cause of action as regards the alleged encroachment on the eastern side. Going by Order VI R 17, the prime object of the amendment is that, all amendments ought to be allowed which satisfy two conditions: 1. The amendment sought to be introduced must be necessary for the purpose of determining the real question in controversy between the parties. 2. The amendment sought to be introduced shall not make any prejudice to the opposite party. 9. When the amendment sought to be introduced is tested with the above requirement, it could be seen that the amendment as regards the restoration of eastern boundary is not a matter required for the determination of the question in controversy involved in the original suit which relates to the southern boundary only. In short, I am of the opinion that the plaintiff cannot be allowed to introduce a W.P.(C).No.6985 of 2010 **==> picture [7 x 10] intentionally omitted <==** new case, which is totally lacking in the original pleadings, merely on the basis of an accidental observation made by the Commissioner in his report. The plaintiff must have a specific case which arose from the original cause of action and the same cannot be on the basis of Commissioner's report alone, without cause of action. It is pertinent to note that the amendment is not sought for either on the basis of a subsequent event or for the clarification of an existing pleading. 10. The amendment cannot be claimed as a matter of right under all circumstances. Amendments can be allowed to avoid multiplicity of suits, but the amendments cannot alter or substitute a new cause of action on the basis of which original lis was raised or defence was taken. Amendment can be refused when the effect of it would be to take away from a party a legal right which had accrued to him by lapse of time. It may be so, when fresh allegations are added or fresh reliefs are sought by way of amendment. But where the amendment merely clarifies an existing W.P.(C).No.6985 of 2010 **==> picture [13 x 10] intentionally omitted <==** pleadings and does not in substance add or alter it, there is no reason to disallow the same, nor would even the bar of limitation come in the way. No fresh allegations of facts have been introduced or added or any fresh cause of action or new relief is sought to be added. A matter already contained in the original pleadings can always be clarified and such an amendment ordinarily be allowed and such a case the question of bar of limitation would not be attracted. The above view is supported by **Ganga Bai v. Vijay kumar** (1974 (2) SCC 393) and **Ganesh Trading Co. v. Moji Ram** (AIR 1978 SC 484). 11. The learned counsel for the petitioner submits that the question of limitation cannot be looked into while considering the amendment application and cited the decisions referred above. It is true that the question of limitation cannot be considered meticulously. But, at the same time, it is to be borne in mind that the amendment shall not deprive the defendant from taking a valuable defence by allowing a fresh claim to be introduced newly in W.P.(C).No.6985 of 2010 **==> picture [13 x 9] intentionally omitted <==** a pending suit clandestinely, without cause of action. Here, the original lis was raised on the allegation that the defendant corporation encroached southern 'B' schedule property and tarred as road portion on 15/06/2006. Generally, the amendment relate back to the date of suit. As regards eastern encroachment, the plaintiff has not disclosed the date on which the eastern boundary was encroached and taken away for construction of the road. Needless to say, the amendment is intended to recover eastern road portion also, without disclosing the alleged date of encroachment. If the same is allowed, the defendant will be deprived of raising their valuable defence of limitation also and thereby it will cause prejudice to the defendant. In the instance case, restoration of the portion, which had been allegedly taken away from the eastern portion of 'A' schedule property, is also sought for, merely on the basis of commission report alone. Going by the matters sought to be introduced by amendment as noted by the court below, the date on which the property was taken W.P.(C).No.6985 of 2010 **==> picture [13 x 9] intentionally omitted <==** away from the possession of the petitioner is not stated. So, I find that the amendment sought to be introduced will change the nature and basic character of the original suit and the defendant has filed a written statement two years before the filing of the commission report. Certainly, the introduction of the new case by way of amendment will cause prejudice to the rights of the defendant in the suit. Hence the Writ Petition is devoid of merits and dismissed accordingly. **K.HARILAL, JUDGE.** Stu //True copy// P.A to Judge