1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (NPD)(MD)No.2093 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Veda Narayanan (died) 1.Meenachiammal 2.Kilasam 3.Arunachalam .. Petitioners/Plaintiffs Vs. 1.Murugan 2.Muniammal .. Respondents/Defendants Civil Revision Petition has been filed under Section 115 of the Code of Civil Procedure, 1908 against the fair and decretal order dated 22.11.2010 passed in Interlocutory Application No.250 of 2009 in Appeal Suit No.50 of 2005 by the Sub Court, Tuticorin. For Petitioners : Mr.V.Meenakshisundaram for Mr.M.Vallinayagam For Respondents : Mr.M.P.Senthil ORDER The order dated 22.11.2010 passed in Interlocutory Application No.250 of 2009 in Appeal Suit No.50 of 2005 by the Sub Court, Tuticorin is being challenged in the present Civil Revision Petition. 2. The revision petitioners herein as plaintiffs have instituted Original Suit No.102 of 2001 on the file of the District Munsif Court, Srivaikundam for the relief of perpetual injunction, wherein the present respondents have been shown as defendants. The trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have filed Appeal Suit No.50 of 2005 on the file of the Sub Court, Tuticorin. During pendency of the same, the present petition has been filed in Interlocutory Application No.250 of 2009 under Order VI, Rule 17 of the Code of Civil Procedure, 1908 praying to permit the petitioners/appellants/plaintiffs to amend the plaint as set out therein. The Court below has dismissed the petition. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioners/appellants/plaintiffs as revision petitioners. https://hcservices.ecourts.gov.in/hcservices/ 2 3. The learned counsel appearing for the revision petitioners has contended that Original Suit No.102 of 2001 has been instituted only for the relief of bare injunction, wherein a defence has been taken to the effect that the plaintiffs are not having title to the suit property and the trial Court has dismissed the suit on the ground that declaratory relief has not been sought for and against the Judgment and decree passed by the trial Court, Appeal Suit No.50 of 2005 has been filed, wherein the present petition has been filed in Interlocutory Application No.250 of 2009 under Order VI, Rule 17 of the Code of Civil Procedure, 1908 praying to permit the petitioners/appellants/plaintiffs to amend the plaint as set out therein, but the Court below without considering the contentions putforth on the side of the revision petitioners, has erroneously dismissed the petition filed in Interlocutory Application No.250 of 2009 and therefore the order passed by the Court below is liable to be interfered with. 4. Per contra, the learned counsel appearing for the respondents has contended that Original Suit No.102 of 2001 has been instituted on 29.08.2011 and written statement has been filed on 26.06.2002, wherein it has been specifically pleaded that the plaintiffs are not having title to the suit property and a specific issue has also been framed to that effect, but the revision petitioners have failed to amend the plaint at the earliest stage and under the said circumstances the present petition is not factually and legally maintainable and if the present petition is allowed, the respondents/ defendants will be in a position to file additional written statement and the matter will be remitted to the trial Court for taking evidence and the Court below after considering all the circumstances, has rightly dismissed Interlocutory Application No.250 of 2009 and therefore the dismissal order passed by the Court below is not liable to be interfered with. 5. It is an admitted fact that Original Suit No.102 of 2001 has been filed on 29.08.2001, wherein a relief of bare injunction has been sought for. In Original Suit No.102 of 2001, written statement has been filed on 26.06.2002, wherein it has been specifically pleaded that the plaintiffs are not having title to the suit property and to that effect in Original Suit No.102 of 2001 an issue has been framed and the trial Court only on the basis of that issue, has dismissed the suit. Against the Judgment and decree passed by the trial Court, Appeal Suit No.50 of 2005 has been filed. The present petition has been filed on 10.04.2004. 6. The only defence taken on the side of the respondents is that if the present petition is allowed and subsequently a de novo trial has to be conducted and the respondents/defendants have to file additional written statement and at the most the revision petitioners/petitioners/ plaintiffs can withdraw the https://hcservices.ecourts.gov.in/hcservices/ 3 suit filed in Original Suit No.102 of 2001 and file a fresh suit on the same cause of action. 7. As stated earlier, Original Suit No.102 of 2001 has been instituted on 29.08.2001 and the written statement has been field on 26.06.2002, wherein for the first time, the title of the plaintiffs has been denied. The present petition has been filed on 10.04.2004 and that too within a period of three years from the date of filing of the written statement, that is, on 26.06.2002. 8. As per Article 58 of the Limitation Act, 1963, a declaratory suit should be instituted within period of three years from the date on which, the right to sue first accrues. In the instant case, the written statement has been filed on 26.06.2002, wherein it has been stated that the plaintiffs are not having title to the suit property and the present petition has been filed on 10.04.2004. Therefore within a period of three years, the present petition has been filed and as per Article 58 of the Limitation Act, 1963, this Court is of the view that the relief of declaration can be introduced by way of amendment. 9. As pointed out earlier, the main defence taken on the side of the respondents is that if the present petition is allowed, the respondents/defendants will be in a position to file additional written statement and for taking additional evidence the matter has to be remanded to the trial Court. 10. It is an axiomatic principle of law that the appellate Court is having enormous powers to take additional evidence, if it is required. Since the appellate Court is having enormous powers to take additional evidence if it is required, the matter need not be remitted to the file of the trial Court. Therefore the apprehension expressed on the side of the respondents/defendants is not genuine and the Court below without considering the dates mentioned supra has erroneously dismissed the present petition and further for the purpose of avoiding multiple litigation, the present petition can be allowed so as to give quietus to the parties. Under the said circumstances, the order passed by the Court below is liable to be set aside. 11. In fine, this Civil Revision Petition is allowed without costs and the order passed in Interlocutory Application No.250 of 2009 in Appeal Suit No.50 of 2005 by the Sub Court, Tuticorin is set aside and the petition filed in Interlocutory Application No.250 of 2009 in Appeal Suit No.50 of 2005 is allowed. However, the revision petitioners are directed to pay Rs.3,000/- by way of cost to the respondents/defendants and to that effect a memo has to be filed. The respondents/defendants are at liberty to file additional written statement. The Sub Court, Tuticorin is directed to take additional evidence if it is required and also directed to dispose of Appeal Suit No.50 of 2005 before the end of February, 2012 and report the same to the https://hcservices.ecourts.gov.in/hcservices/ 4 Registry without fail. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar(AE) /True Copy/ Sub-Assistant Registrar To The Sub Court, Tuticorin. +One cc to Mr.M.Vallinayagam, Advocate, SR.No.44128 +One cc to Mr.M.P.Senthil, Advocate, SR.No.44244 smn rl/4 c- 6.1.2012 C.R.P(NPD)(MD)No.2093 of 2011 and M.P(MD)No.1 of 2011 15.12.2011 https://hcservices.ecourts.gov.in/hcservices/