Judgment:
ORDER
R. Banumathi, J.
1. This revision is directed against the order of District Munsif cum Judicial Magistrate, Perundurai, made in I.A.No. 866 of 1998 in O.S.No. 575 of 1996 dated 28-10-1998, dismissing the petition filed under Order 6 Rule 17 C.P.C. declining permission to amend the plaint.
2. O.S.No. 575 of 1996:- This suit was originally filed in the year 1994 in Sub-Court, Erode. Later, the suit was transferred to the Court of District Munsif, Perundurai and renumbered as O.S.No.575 of 1996. The case of the Plaintiff is that in the suit property in R.S.No.3 of Chinnamallanpalayam Village, the Plaintiff is entitled to 1/8th share out of the suit properties and the well situated thereon. The Defendants 1 and 2 are entitled to 3/8th share. The Defendants 3 and 4 are together entitled to 4/8th share. The Defendants failed to comply with the demand of the Plaintiff to effect partition. The Defendants are entitled to irrigate their share in R.S.No.3 alone and they are not entitled to take water from the said well to other survey numbers situated in R.S. Nos. 4, 8 and 9 and other survey fields. While so, the Defendants have attempted to lay underground pipelines to take the well water to some other land. Hence, the Plaintiff has filed the suit:-
(a)For Partition of the suit property into eight equal shares and allot one such share to the Plaintiff;
(b)to grant a permanent injunction restraining the Defendants from doing any act detrimental to the Plaintiff i.e., laying underground pipelines in the suit property - R.S.No.3 and taking water from the suit well to any other survey fields and other reliefs.
3. Admitting the Plaintiff's share - 1/8th share in R.S.No.3, the Defendants have filed a written statement contending that the Defendants 1 and 2 have 2/8th share in the suit property ancestrally. The Defendants 1 and 2 have purchased another 1/8th share in the year 1974, thereby the Defendants 1 and 2 became entitled to 3/8th share in the suit properties. The Defendants 3 and 4 have purchased 1/8th share in the year 1981. The Defendants 3 and 4 became entitled to 4/8th share in the suit properties. The Plaintiff is entitled to 1/8th share. The parties are entitled to bale out water from the common well as per turns, in proportion to their shares in the suit lands. R.S.No. 4 is adjoining R.S.No. 3 on the Western side. Defendants 1 and 2 are owning shares in R.S.No.4 and the Plaintiff is also owning shares in the same lands. By mutual consent, the Plaintiff and the Defendants have agreed to irrigate their respective portions from the suit well water by laying underground pipes to their respective shares from the suit well. They are also entitled to irrigate the said land during their respective turns in the suit well. Acting on the mutual consent and agreement, the Defendants have laid underground PVC pipes spending around Rs. 17,000/- to irrigate their lands in R.S.No.4. The Plaintiff was delaying to put up underground pipes from the suit well, due to her share in R.S.No.4. In the meanwhile, there arose misunderstanding between the Plaintiff and the Defendants 3 and 4 in connection with a pathway leading to another land. On account of that misunderstanding, the Plaintiff has rushed to the Court, filing the suit on false grounds. The Plaintiff has filed another suit in O.S.No. 498 of 1996, which was filed in the month of August 1996 regarding the same subject matter.
4. Alleging that subsequent to the suit the Defendants have laid the underground pipes, the Plaintiff has filed amendment Applications seeking to amend the plaint in I.A. Nos. 70 and 535 of 1998. Those Applications were dismissed 'as not pressed'. Thereafter, I.A.No. 866 of 1998 - third Petition for amendment of the plaint was filed. In the supporting affidavit, the Plaintiff has alleged that the Respondents have laid two underground pipelines in September 1995 to take water from the well in the suit property to their land in R.S. Nos. 4,8 and 9 at Chinnamallanpalayam Village, inspite of the order of temporary injunction in force. Since, the underground pipelines have been laid subsequent to the suit, the pipelines have to be removed and the Plaintiff is entitled to seek for mandatory injunction for removal of the pipelines laid by the Respondents/ Defendants. On the above averments, the Plaintiff has sought to amend the plaint - mandatory injunction for removal of two underground pipelines laid by the Defendants from the suit well to R.S. Nos. 4, 8 and 9 of Chinnamallanpalayam Village.
5. The Defendants 1 and 2 have resisted the Application denying laying of underground pipelines in September 1995. According to the Defendants, pursuant to the agreement and mutual consent of the parties, PVC underground pipes have been laid even prior to the suit spending about Rs. 17,000/- to irrigate their plot in R.S.No. 4. It is alleged that the laying of PVC underground pipes is clearly averred even in the written statement. Due to misunderstanding the Plaintiff has filed the suit and has filed the amendment Petition belatedly. In their counter statement, the Defendants 1 and 2 have also referred to the earlier amendment Petitions in I.A. Nos. 70 and 535 of 1998, which were dismissed 'as not pressed'.
6. Upon consideration of the averments in the affidavit and in the counter affidavit, the learned District Munsif dismissed the application interalia on the findings:
(a)Earlier two similar applications have been filed in I.A. Nos. 70 and 535 of 1998, which were dismissed 'as not pressed';
(b) that the Application has been belatedly filed and that there is no bona fide in the amendment Application; and
(c) that the amendment is in no way relevant for complete and effective adjudication of the dispute.
7. Aggrieved over the dismissal of the Application, the Plaintiff has preferred this Revision. The learned counsel for the Revision Petitioner has submitted that the lower Court erred in not exercising the discretion ordering amendment of pleadings, which is essential due to the subsequent events - laying of underground pipes subsequent to the filing of the suit. It is further contended that the earlier Applications for amendment have been dismissed 'as not pressed' only on technical ground of the omission to mention the cause of action and the actual date of laying two underground pipelines. It is urged on behalf of the Revision Petitioner that dismissal of the earlier Applications 'as not pressed' would not be an impediment for filing the Application seeking to amend the plaint, including a prayer for mandatory injunction.
8. Drawing the attention of the Court to the repeated filing of the amendment Applications, the learned counsel for the Respondents 1 and 2 has submitted that the trial Court has rightly taken into consideration the earlier amendment Applications (I.A. Nos. 70 and 535 of 1998), which were dismissed 'as not pressed'. Drawing the attention of the Court to the averments in the written statement, the learned counsel for the Respondents/Defendants has submitted that even in the written statement filed in December 1996, the Defendants 1 and 2 have clearly alleged about the laying of underground pipes through the suit survey number to their share in R.S.No. 4 and that the amendment Applications filed belatedly in 1998 cannot be ordered. It is also submitted that if the proposed amendment is allowed, it would cause serious prejudice to the Defendants.
9. The points that arise for consideration in this Revision are:-
i. Whether the Plaintiff is entitled to seek for amendment of pleadings to include the prayer for mandatory injunction?
and
ii.Whether the impugned order declining amendment of pleadings suffers from any material irregularity warranting interference ?
10. Even at the outset, it is to be pointed out that the amendment Application in I.A.No. 866 of 1998, out of which the present Revision arises is the third Application. Earlier, the Plaintiff has filed I.A.No. 70 of 1998 seeking amendment of the plaint to include the prayer for mandatory injunction and to amend the valuation thereon. That Application was dismissed 'as not pressed' on 1-7-1998. Thereafter, I.A.No. 535 of 1998 was filed. Memo was filed on 9-9-1998 stating that the Application is not pressed, without prejudice to file a fresh amendment petition. In view of the memo filed by the Plaintiff, on 9-9-1998 I.A.No. 535 of 1998 was dismissed 'as not pressed'. It is relevant to note that the Court has not passed any order, giving liberty to the Plaintiff to file a fresh amendment petition. Thereafter, the Plaintiff has filed a third Application in I.A.No. 866 of 1998 seeking to amend the plaint. The contention of the learned counsel for the Plaintiff is that the earlier Applications have been dismissed 'as not pressed', since, there was omission to mention the cause of action. This contention has no merits. Even, if there had been omission to refer the cause of action in the first Application, nothing prevented the Plaintiff from referring to the cause of action and the date of laying the underground pipes in the second Application in I.A.No.535 of 1998; but that was not to be so. No acceptable explanation is forth coming as to the non-mentioning of the cause of action in the second Application.
11. The gist of proposed amendment is:-
'and actually laid two underground pipelines in the suit property in the Ist week of September, 1995.
(bb) granting a mandatory injunction directing the Defendants to remove the two underground pipelines laid by them from the suit well to R.S. Nos. 4, 8 and 9 of Chinnamallampalayam Village.'
The Plaintiff also seeks to amend the valuation of the plaint and the payment of the Court Fee under Section 27(c) of the Court Fee Act. In the supporting affidavit, the Plaintiff has averred 'the Respondents have laid two underground pipelines in September, 1995 to take water from the well in the suit property to their land in R.S. Nos. 4, 8 and 9 of Chinnamallanpalayam Village, inspite of the order of temporary injunction in force'. If really, the Defendants have laid the pipelines in September, 1995, nothing prevented the Plaintiff from bringing it to the notice of the Court. The Application filed in I.A.No. 1013 of 1997 under Order 39 Rule 2(A) and Section 151 C.P.C. only seeks to commit the Defendants to the Civil Prison for disobedience of the injunction order granted in I.A.No. 932 of 1994. I.A.No. 1013 of 1997 though filed in September 1997, the Plaintiff has not taken appropriate steps seeking to amend the plaint.
12. It is relevant to note that the written statement of the Defendants 1 and 2 was filed in December 1996. As noted earlier, in para-9 of the written statement, the Defendants 1 and 2 have clearly averred that R.S.No.4 is situated on the Western side of the suit S.No.3. According to the Defendants 1 and 2 by mutual consent, the Plaintiff and the Defendants have agreed to irrigate their respective portions in R.S.No.4 from the suit well water by laying underground pipelines to their respective shares from the suit well. Further, the Defendants have alleged that acting on the mutual consent, they have laid underground PVC pipes spending about Rs. 17,000/- to irrigate their plots in R.S.No.4. It is further alleged that the Plaintiff was delaying putting up underground pipes from the suit well due to her share in R.S.No.4. In the mean while, there arose misunderstanding between the Plaintiff and the Defendants 3 and 4 and due to that misunderstanding, the suit has been filed. Though, laying of underground PVC pipes (in September 1995) have been clearly set forth in the written statement (filed in December 1996), no steps had been taken to amend the plaint. During the interregnum period (1995-1998), i.e., between the time of filing of the suit and the time of filing of the amendment application, substantial right has accrued to the Defendants. If the third amendment Application filed in 1998 is allowed, it would seriously prejudice the right of the Defendants. Bonafide doubts arise as to the contention of the Plaintiff that the underground PVC pipes have been laid subsequent to the suit. The proposed amendment is not proved to be pursuant to the cause of action, which arose subsequent to the suit.
13. The suit was originally filed for permanent injunction. Now, by the proposed amendment the Plaintiff seeks to amend the plaint for mandatory injunction. The Court is now called upon to adjudicate an entirely different case, instead of original case. Holding that, it would not be proper to accept such an application for amendment introducing a new case, in a decision reported in (2002) I M.L.J. 758 (Karuppusami v. Saravana Devei @ Vasanthamani and Ors.), this Court has held:-
'It is settled law that the pleading could only be amended if it is to substantiate the pre-existing facts already contained in the original pleadings. Under the guise of amendment a new cause or a case cannot be substituted. The Courts cannot be asked to adjudicate an entirely different case instead of the original case. Though it is expedient under certain circumstances to take consideration of the supervening facts in the course of a litigation, it would hazardous to accept such an application for amendment of the plaint for introducing a new cause of action which was never thought of earlier and which is diametrically opposite to that stated in the original plaint'.
14. The learned District Munsif has rightly taken note of the conduct of the Plaintiff in the repeated filing of the amendment Applications. The suit is of the year 1994. The proposed amendment had been sought for after the filing of the written statement, where the Defendants have set forth their defence plea. There is no bonafide in the amendment Application. The impugned order declining the amendment does not suffer from any material irregularity warranting interference. This Revision has no merits and the same is bound to fail.
15. For the foregoing reasons, the order of the District Munsif cum Judicial Magistrate, Perundurai, made in I.A. No. 866 of 1998 in O.S. No. 575 of 1996 dated 28-10-1998, is confirmed and this Revision Petition is dismissed. Consequently, the connected C.M.P. No. 15843 of 2003 is also dismissed. In the circumstances of the case, there is no order as to costs. Since, the suit is of the year 1994 (renumbered as O.S. No. 575 of 1996), the learned District Munsif is directed to expedite the trial and dispose of the suit on merits and in accordance with law expeditiously.