IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.01.2011 CORAM THE HONOURABLE MR. JUSTICE S.PALANIVELU CRP.PD.No.1548 of 2009 and M.P.No.1 of 2009 The Residents of Karaimedu North Street and Vennaraiyankulam Street represented by Rajathi, W/o. Shanmugam, No.13, Mela Perumpallam Post, Tranquebar Taluk, Nagapattinam District. .. Petitioner ..Vs.. 1. Sathasivam 2. Government of Tamilnadu represented its District Collector, Nagapattinam. 3. The Assistant Executive Engineer Command Area Development Programme Agriculture Engineering Mayiladuthurai Town 4. The Residents of Karaimedu North Street and Vennaraiyankulam Street, represented by Balasubramanian, S/o.Adheemoola Padayachi, Karaimedu Village, No.13, Mela Perumpallam Post, Tranquebar Taluk, Nagapattinam District. .. Respondents Prayer :-This Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order passed by the District Munsif, Sirkali dated 22.01.2009 made in I.A.No.681 of 2008 in O.S.No.61 of 2004. For Petitioner : Mr.S. Sounthar For Respondents : Mr.A.Muthukumar for R1 Mrs.R.Revathy, Govt.Advocate for R2 to 4 O R D E R This Revision has been filed against the fair and decretal order passed by the District Munsif, Sirkali dated 22.01.2009 in I.A.No.681 of 2008 in O.S.No.61 of 2004. 2. The petitioner is the second plaintiff in O.S.No.61 of 2004 on the file of the District Munsif, Sirkali. It is a suit for https://hcservices.ecourts.gov.in/hcservices/ declaration and permanent injunction with regard to channel pipeline (fz;zp) of the suit property. The case was taken up for trial and at the part heard stage, the plaintiffs filed an application under Order 6 Rule 17 C.P.C. for amending the plaint to include the prayer for mandatory injunction and include the pleadings therefor. 3(a) The following are the allegations contained in the affidavit: The channel is situated in Old Survey No.130/6B New Survey No.130/6B2. The first defendant filed a suit in O.S.No.14 of 2000 on the file of the Additional Subordinate Judge, Mayiladuthurai, for mandatory injunction for restoring the pipeline stating that the said pipeline is in his patta land in New S.No.130/6B2 (Old S.No.130/6B) against the Government. The plaintiffs were not made parties to the said suit, and exparte decree was passed in the suit. 3(b) The plaintiffs filed the present suit for restraining the respondents from closing or removing the pipeline. They filed an application for appointing a Surveyor in 2004 to show that the pipeline does not lie in the patta land of the first defendant. On 30.03.2008, survey was conducted made by the Surveyor and he filed a report on 03.06.2008, wherein he has mentioned that the suit pipeline is not situated in Survey No.130/6B-1 but in other S.No.130/6B-2. After filing of the suit, the first respondent levied execution proceedings in O.S.No.14 of 2000 and got an order from the Executing Court and executed the decree on 09.10.2006 by closing the pipeline. Therefore, according to the plaintiff, at this juncture, the amendment including the additional prayer for mandatory injunction is necessary. 5.In the counter filed by the first respondent, it is alleged as follows: The application is not sustainable. The channel was removed and the pipeline on the road was blocked by the Advocate Commissioner on 09.10.2006 and the same was known to the petitioner as well as the people in the street on that date itself, but they have not preferred amendment application at the earliest point of time after the removal of the channel and after the lapse of two years, this application has been filed. Two witnesses were examined on the side of the plaintiffs and the suit is posted for examination of further witnesses and at this stage, no application shall be allowed as per Order 6 Rule 17 C.P.C. after the trial has commenced. The amendment application is filed only to fill up the gap in the pleadings and the amendment sought by the petitioner is superseded by the decree already passed by the Subordinate Judge of Mayiladuthurai in O.S.No.14 of 2000. The plaintiff cannot seek for the prayer without setting aside the decree already passed by the Subordinate Judge, Mayiladuthurai and this Court has no jurisdiction to grant the prayer, against the relief already granted by higher forum without setting aside the decree. The details in amendment column are not correct and hence, the application has to be dismissed with costs. https://hcservices.ecourts.gov.in/hcservices/ 6. After hearing both sides arguments, the learned District Munsif, Sirkali has dismissed the application by observing that the suit is in part heard stage for over one year and that allowing the amendment application would prolong the matter and the cause of action and it would also prejudice the interest of the respondents. It is also observed therein that as per the amended C.P.C. there is no scope for allowing the amendment application after the trial has commenced. This is the order which is challenged before this Court. 7. Originally, the suit was filed for declaration and injunction to the effect that the first defendant is not entitled to get removal of channel and also for permanent injunction restraining the defendants from removing or closing the channel and also for declaration that the channel is a common channel. 8. It is contended by the learned counsel for the petitioners that they came to know about the fact only after filing the report of the surveyor. It is stated that the Surveyor has observed that the suit channel was not in the patta land belonging to the first respondent, but it is in the adjacent survey number which does not belong to the first respondent and that has been made clear in the Survey Report filed before the trial Court on 03.06.2008,. The amendment application has been filed before the lower Court in August,2008 without any loss of time. 9.Per contra, it is contended by the first respondent that even on 09.10.2006,when the Advocate Commissioner blocked the pipeline, the fact was known to the petitioner and other people in the street and the plaintiffs filed the application before the Court after the lapse of two years. 10.It may be true that the Commissioner blocked the pipeline on 09.10.2006 after filing of the suit. But the fact remains that the Surveyor was appointed by the Court who inspected and measured the property and filed his report on 03.06.2008. Contention of the petitioners is that the pipeline is not in the first respondent's property and only after seeing the Surveyor's report they came forward with present petition. The said contention gains acceptance. 11.As per the proviso to amended provision in Order 6 Rule 17 C.P.C. and as per the proviso, "no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial". 12.When the application for amendment is filed by the party in the suit after the commencement of the trial, as per the new provision, he has to establish that in spite of exercise of due diligence he could not raise the matter before the trial. If the Court is satisfied that he was prevented from exercising his due diligence earlier to the commencement of trial, then there is no legal impediment to allow the amendment petition. https://hcservices.ecourts.gov.in/hcservices/ 13.Adverting to the facts of the present case, it is seen that the petitioner got knowledge of the fact that the disputed pipeline is not situated in the first respondent's property only on 03.06.2008, when the Surveyor's Report was filed. Hence it is seen that in spite of their exercising due diligence, anterior to the commencement of the trial, they could not file the amendment application. 14.The learned counsel for the petitioner would drawing attention to a decision of mine reported in 2009 (4) CTC 37 [SARATHAMANI VS. R.C.CHENNIAPPAN] wherein I have observed that when no prejudice is caused to other party even though amendment is sought for after commencement of trial, when the plaintiff has stated that inadvertent mistake was sought to be corrected as soon as it came to light, the amendment can be allowed. 15.The learned counsel for the first respondent placed reliance upon the decision of this Court reported in (2007)6 MLJ 1703 [KEDIA OVERSEAS LTD., REP. BY ITS M.D.,DR.MAHESHKUMAR KEDIA VS. SATELLITE TOWN DEVELOPMENT PVT. LTD. REP. BY ITS DIRECTOR AND OTHERS] wherein it was held that if the proposed amendment is not bonafide and the same is belated and it is allowed, it would cause prejudice to the opposite parties, the dismissal of amendment application would be proper and the amendment cannot be claimed as a matter of right. 16.As far as the facts of the present case are concerned, as observed already, since only on 03.06.2008, the petitioners got knowledge about the lying of the pipeline in the adjacent property of the first respondent, they filed the application for amendment. They also complied with the condition contemplated in proviso to Order 6 Rule of the 17 C.P.C. 17. Under such circumstances, the order challenged before this court has to be set aside and the revision deserves to be allowed. 18. In fine, the revision is allowed. Consequently, connected miscellaneous petition is closed. No costs. I.A.No.681 of 2008 on the file of the District Munsif, Sirkali is allowed. No costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar kal https://hcservices.ecourts.gov.in/hcservices/ To The District Munsif, Sirkali + cc to Mr.A. Muthukumar, Advocate sR.1909 + 1 cc to Mr.S. Sounthar, Advocate Sr.2658 + 1 cc to Government Pleader Sr.1975 CRP.PD.No.1548 of 2009 and M.P.No.1 of 2009 NM(CO) Eu 7.2.11 https://hcservices.ecourts.gov.in/hcservices/