ORDER
C.Y. Somayajulu, J.
1. Respondents 1 to 5 filed the suit against the revision petitioner and 6th respondent inter alia for an injunction restraining them and their agents from diverting the channel noted as ABCD in the plaint plan, which was flowing from East and passing towards South of the plaint schedule land, alleging that the said channel, which is also shown in the revenue records, has been in existence from a long time, and so any diversion of the said channel by the revision petitioner would cause great hardship to them and obtained an ad interim temporary injunction restraining the revision petitioner and 6th respondent from either closing the existing channel or diverting the said channel. Revision petitioner and the 6th respondent filed written statement contesting the suit. As the suit was dismissed for default, the petition in which an injunction was granted was also dismissed. On a petition for restoration of the suit, the suit was restored to file. In the meanwhile, the revision petitioner closed the channel and diverted it, in pursuance of a permission said to have been obtained by them from the Collector. After restoration of the suit, Respondents 1 to 5 filed a petition under Order VI Rule 17 seeking leave of the Court to amend the plaint seeking the relief of mandatory injunction to close the newly dug channel by the revision petitioner. That petition was allowed by the order under revision, in spite of the opposition by revision petitioner. Hence this revision.
2. The main contention of the earned Counsel for revision petitioner is that since the amendment sought changes in the nature of cause of action and suit also, the trial Court was in error in allowing the amendment sought. He placed strong reliance on C. Jayasree (Dr.) v. Commissioner, M.C.H. 1994 (2) An. WR 132, and Angammal v. Muthupechiammal AIR 1976 Mad. 282, and the observations of Privy Council in Ma Shwe Mya v. Maung Mo Hnaung AIR 1922 PC 249, which were followed in State of A.P. and Ors. v. Pioneer Builders, A.P. : 2006(6)ALD94 . Heard the earned Counsel for respondent.
3. The necessity for filing the petition seeking amendment of the plaint arose only because of the subsequent event of the revision petitioner diverting the channel by closing the old channel, after the dismissal of the suit for default, resulting in vacation of the order of interim injunction granted earlier. Since the digging of the new channel is a subsequent event, which has a connection to the main relief sought in the suit, it cannot be said that the relief of mandatory injunction sought by way of amendment is unconnected with or is alien to the cause of action that has arisen for filing of the suit. The necessity to seek the relief of mandatory injunction of the closure of the new channel arose because of its being dug after closing the old channel. The digging of new channel does have a link with the cause of action for filing the suit. So, it cannot be said that the proposed amendment changes the original cause of action for filing the suit. Had not the suit been dismissed for default, there would not have been a need for Respondents 1 to 5 seeking leave of the Court to amend the plaint. The cause of action for seeking the relief of either perpetual or mandatory injunction is the alleged disturbance or threatened disturbance of the right of Respondents 1 to 5 to draw water from a particular channel in a particular course. So, the cause of action remains the same but the relief sought only differs.
4. In C. Jayasree (Dr.)'s case (supra), writ petition was filed seeking a writ of mandamus declaring the action of the respondent-Municipal Corporation of Hyderabad in trying to sell Kummaraguda Commercial Complex, Secunderabad, to the Government of India or to third parties, without finalizing the petitioner's tender, as unreasonable and arbitrary. The contention of the respondent-Municipal Corporation, Hyderabad, is that inasmuch as the tender filed by the writ petitioner was not accepted, she has no vested right, and in any event since the writ petitioner did not comply with Item 14 of the Terms and Conditions by paying the entire bid amount within 60 days, she is not entitled to any relief. During the pendency of the writ petition, the respondent-Municipal Corporation, Hyderabad, passed an order rejecting the tender of the writ petitioner and communicated the same to the writ petitioner. Thereafter, the writ petitioner filed a petition seeking an amendment in the prayer of the writ petition as one for declaring the proceedings dated 15-2-1994 of the Municipal Corporation rejecting her tender as arbitrary. The learned Judge rejected the proposed amendment on the ground that it would alter the prayer originally sought in the writ petition. The facts in that case are entirely different from the facts in this case. The writ petition is filed questioning the action of the Municipality in trying to sell the property without finalizing the tender of the petitioner. The proposed amendment related to rejection of tender. The causes of action for the relief in the wit petition and the relief sought by way of amendment are different. So, that decision is of no help to the revision petitioners. The cause of action for filing the suit in this case is the intention of the revision petitioner to divert the channel.
5. In Angammal's case (supra), the plaintiff filed the suit for injunction on the basis that she has a right of easement over the property. Later she wanted to alter her case and sought to set up a case by way of an amendment that she is the owner of the property. The Court rejected the petition on the ground that the amendment sought in the petition is not connected with the original prayer in the suit. Since plea of ownership and plea of easement are mutually inconsistent, as a person cannot have easement on his own property, person who initially claimed right of easement, subsequently seeking amendment of the plaint claiming ownership over the property, positively amounts to setting up a plea inconsistent with the original plea. So, that decision also has no application to the facts of this case.
6. In Ma Shwe Mya's case (supra), the Privy Council held that Courts must be liberal in permitting amendments, but cannot exercise that power to enable one distinct cause of action to be substituted for another nor to change, by amendment, the subject-matter of the suit.
7. In Pioneer Builders's case (supra), also it is held:
the Court may at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well-settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the Court should adopt liberal approach and not a hyper-technical approach particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings (See: L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. : [1957]1SCR438 , Smt. Ganga Bai v. Vijay Kumar and Ors. : [1974]3SCR882 and B.K. Narayana Pillai v. Parmeswaran Pillai and Anr. : AIR2000SC614 . Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment.
The issue to be decided in this suit is whether the revision petitioner and the 6th respondent can change the course of the channel flowing in their land. Plaintiffs can succeed only if they are able to establish that defendants do not have such right. If defendants have a right to change the course of the channel, the plaintiffs have to be nonsuited and an injunction either perpetual or mandatory cannot be granted in favour of the plaintiffs.
8. Closure of the old channel and digging a new channel is a subsequent event. It is well known that Courts have to take into consideration the subsequent events to mould the relief and so plaintiff in a suit can seek amendment of the relief basing on the subsequent events. The trial Court relying on Rajaram Narayan v. Rajaram : AIR1996MP12 , allowed the petition. In, that case, the suit was filed for a prohibitory injunction restraining the defendant for making constructions on a joint site. When the defendant raised a construction, plaintiff filed a petition seeking leave to amend the plaint as to one for mandatory injunction which was allowed. In K. Kameswara Rao v. K. Rajyalakshmi 1970 (1) APLJ 309, also it was held by this Court that a suit for injunction can be converted into a suit for possession. That decision was followed in Adusumilli Venkateswar Rao v. Chalasani Hymavathi : AIR1990AP161 , observing as follows.
It has been held in a number of cases by various High Courts, including our High Court that a suit for injunction can be converted into a suit for possession and that such conversion does not amount to alteration of the nature of the suit.
In this case Respondents 1 to 5 want to substitute the relief of mandatory injunction in place of perpetual injunction originally sought by them, on the ground of the subsequent event of the revision petitioner changing the course of the channel, after dismissal of the suit for default. The original relief sought by Respondents 1 to 5 in the suit has become redundant in view of the subsequent events. So, they can seek the relief of mandatory injunction of closure of the new channel by way of amendment. As stated earlier, whether the relief of mandatory injunction can be granted to them or not is a question which has to be decided as per the evidence adduced. Similarly, question whether the revision petitioner has a right to change the course of a channel in his field, either with or without the permission of the Collector, or not also has to be decided by the trial Court basing on the evidence to be adduced by the parties.
9. Therefore, I find no grounds to interfere with the order under revision and hence the revision petition is dismissed with costs.