K.M. MUTHIAH AMBALAM Vs. M. MUTHIAH

JUDGEMENT

(1.) THE petitioner is the plaintiff in the suit. The suit has been filed for mandatory injunction based upon the registered partition deed dated 15.12.1970. It is the case of the petitioner that inspite of the said partition deed, the defendant has encroached upon the suit properties and hence, he was constrained to file a suit in O.S. No.4 of 2006 on the file of the Court of the Subordinate Judge, Devakottai.

(2.) PENDING the suit, the petitioner has filed an application for amend -ment under Order 6, Rule 17 on the ground that the description as mentioned in the plaint has been wrongly mentioned than it was mentioned in the registered partition deed. Therefore, under those circumstances, the petitioner filed the said application in I.A. No.81 of 2007 to amend the plaint in so far as the description is concerned. The said application has been opposed by the respondent stating that the petitioner is trying to introduce a new case. The Court below has dismissed the application of the petitioner by holding it is impermissible to allow amendment by changing the description of the suit properties.

(3.) CONSIDERING the facts and circumstance of the case, this Court is of the view that a mere change of the description of the suit property, no prejudice would be caused to the respondent. In the present case on hand, the petitioner seeks his relief based upon the registered partition deed. It is the specific case of the petitioner that contrary to the registered partition deed the respondent has encroached upon the shop allotted to the petitioner. Therefore, this Court is of the opinion that there is no change in the cause of action and when the petitioner has stated that there is mistake in the suit properties, amendment ought to have been made. It has been held in the judgment reported in 2008 (2) CTC 224 in Puran Ram v. Bhaguram and another, that even a mistake in the agreement relating to the description of the suit property can be allowed by filing an application under Order 6, Rule 17. The Hon'ble Supreme Court has further held that an amendment of plaint relating to the description of the property will have to be allowed in the normal circumstance. Similarly in 2008 (3) MLJ 287, Ushadevi v. Rijwan and others, the Hon'ble Supreme Court has held that the proposed amendment relating to the correction of the description of the suit property will have to be allowed. Therefore, considering the above said judgment of the Hon'ble Supreme Court, this Court is of the view that the revision filed by the petitioner will have to allowed.