J. VIJAYAKUMAR Vs. K. SRINIVASAN

JUDGEMENT

(1.) CIVIL Revision Petition is filed against the fair and decreetal order dated 20.11.2009 made in I.A. No. 15334 of 2009 in O.S. No. 1782 of 2008 on the file of the II Assistant City Civil Judge, Chennai.

(2.) LEARNED counsel for the revision petitioner submitted that the revision petitioner herein as a plaintiff filed a suit for recovery of money due on promissory note and also creation of equitable mortgage. At the time of filing suit, even though the revision petitioner has mentioned all the pleadings in respect of creation of equitable mortgage in the body of the plaint, but in the prayer column of the plaint, no specific prayer for preliminary decree for mortgage has been mentioned. So the revision petitioner/plaintiff has filed an application in I.A. No. 15334 of 2008 for amending the plaint. The amendment sought for by the revision petitioner does not constitute any new cause of action. But the trial Court without considering the same, dismissed the application, against which, the present revision petition has been preferred by the plaintiff/revision petitioner.

(3.) RESISTING the same, learned counsel for the respondent/defendant submits that the revision petitioner/plaintiff has filed a simple suit for recovery of money due on promissory note. If the suit is for mortgage, he has to file the suit under Order 34 C.P.C. instead of Section 34 C.P.C. The second limb of argument is that the suit has been filed on 02.01.2008, the amendment application was filed only on 29.08.2008 and deposit of title deeds on 03.01.1996. So the plaintiff ought to have filed the amendment application on or before 02.01.2008. It shows that on the date of filing amendment application, the prayer has been barred by limitation. To substantiate his argument, he relied upon the decision of the Apex Court reported in : 1995 Supp (3) SCC 17 (K. Raheja Constructions Ltd. And another v. Alliance Ministries and others), which has been followed by the Apex Court in another judgment reported in : (2014) 4 SCC 516 (Voltas Limited v. Rolta India Limited) and the same has been followed by this Court in : 2005 (4) CTC 734 (S. Kuppusamy v. P.K. Subramani and others). Therefore, he prayed for dismissal of the revision petition.