K. KARUPPANNA MUDALIAR Vs. KUTTIANNA MUDALIAR

JUDGEMENT

(1.) THIS revision petition arises out of an order refusing to permit the petitioner to amend the plaint and the plan attached thereto. The petitioner herein who is the plaintiff in O.S. 153 of 1969 filed the said suit for declaring the plaintiff's right to drain wash water of the kitchen and bath room and rain water falling from the eaves of his house through the vent towards east through the drain, for restraining the defendant, his men, heirs and assigns etc. from interfering with and disturbing in any manner with the peaceful enjoyment of the said right by means of a permanent injunction and for directing the defendant to remove the obstruction to the vent on the east and in case the defendant fails to comply with the decree, the same may be removed by court and the defendant may be made liable for the expenses. Along with the plaint, the petitioner herein filed a plan showing the location of the respective houses of the parties and the vent alleged in the plaint. The trial court decreed the suit as prayed for. Aggrieved by the decision of the trial court, the respondent herein preferred A. S. 53 of 1973 on the file of the Additional Sub Court, Erode. While that matter was being argued, the plaintiff, that is the petitioner herein, thought it necessary to amend the plaint since the description of the plaintiff's property and also the plan drawn are not in accordance with the actual state of affairs. It is the case of the plaintiff in the petition for amendment that his house does not extend upto the north to south road on the west and that in between the north -south on the west and his house, there is a lane and building belonging to one Sengoda Mudaliar. Even the Commissioner appointed by the trial court points out this mistake. The Commissioner has also filed his plan and report. No objection was taken by the petitioner herein at that time. Nevertheless he has come forward by way of a petition to amend, in I. A. No. 143 of 1973, in A. S. 53 of 1973, praying to amend paragraph 4 of the plaint and read the first sentence as follows -

(2.) THE Additional Subordinate Judge of Erode, observing that such an amendment will involve various other complications and also affect the veracity of the defendant is allegation and also will complicate matters, in that, if the amendment is allowed, naturally the rebuttal pleadings pertaining to this aspect of the case would have to be let in and fresh issues also might crop up for decision, dismissed the petition. Aggrieved by the said decision, the plaintiff -petitioner has come for ward with the abovesaid revision petition.

(3.) THIRU Palaniswami, the learned counsel for the respondent opposed the application for amendment on the ground that the plaintiff had these facts when he filed the plaint and that inasmuch as he has failed to mention the exact boundaries in his plaint, he should not be allowed to amend the plaint and the plaint plan at the appellate stage. The learned counsel cited a number of decisions to support his contention.