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Section 6 in The Specific Relief Act, 1963
The Specific Relief Act, 1963
The Code Of Civil Procedure (Amendment) Act, 2002
Section 9 in The Specific Relief Act, 1963
Article 227 in The Constitution Of India 1949

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Madras High Court
G.Gurunathan vs Mrs.J.Muthulakshmi on 9 April, 2011

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 09.04.2011

CORAM:

THE HONOURABLE MR.JUSTICE M.DURAISWAMY

C.R.P.(PD).No.1562 of 2010

and M.P.No.1 of 2010

1.G.Gurunathan

2.Family Manager T.M.Palaniappa Mudaliar

3.Family Manager G.Arumugam

4.Mrs.Guruvayee

5.Mrs.Marakkal

6.Mr.Balan

7.Mr.Gurunathan

8.Mrs.Malarmathi

9.Mr.T.V.Venkatachalam

10.Mr.G.Ammasai

11.Mr.T.R.Venkatachalam

12.Mr.T.A.Ravi ... Petitioners

Vs.

1.Mrs.J.Muthulakshmi

2.Mrs.J.Vijayakumar

3.Mrs.Kumudhavalli Manoharan

4.Mrs.Geethanjai Shankar

5.Mr.Gurunatha Mudaliar (Died)

6.Family Manager T.M.Ramasamy Mudaliar (Died)

7.Family Manager T.M.Arthanary Mudaliar (Died)

8.Family Manager T.G.Gurusamy (Died)

9.Family Manager T.G.Arthanary (Died)

10.Family Manager T.G.Gurusamy

11.Family Manager T.G.Palaniappan (Died)

12.Mrs.Subbyammal (Died)

13.Mrs.Guruvayee

14.Mrs.Kaliammal

15.Mr.T.V.Gurunathan

16.Dr.T.V.Shanmugam

17.Mr.T.G.Mohankumar

18.Mr.T.G.Napoleon

19.Mrs.Unnamalaiammal

20.Family Manager G.Ammasai

21.Family Manager G.Palaniappan (Died)

22.Mrs.Nagammal

23.Saminathan (Died)

24.Mrs.Guruvayee

25.Mrs.Muthulakshmi

26.Mrs.Seethalakshmi

27.Mrs.Kuppayee (Died)

28.Mr.Gurusamy (Died)

29.Mr.Mariappan

30.Maragatham

31.Shanmugavadivu

32.Kamatchi

33.Mariammal

34.Palaniammal

35.Pavayammal (Died)

36.Jayaraj

37.Ramamoorthy

38.Guruvayee

39.Valliammal

40.Family Manager Palaniappa Mudaliar

41.Lakshmanan

42.Sakthi (Died)

43.Family Manager T.A.Palaniappan (Died)

44.T.V.Gurusamy

45.T.V.Thiyagarajan

46.T.V.Ravichandran

47.S.Jagadeesan

48.Duraisamy

49.Balakrishnan

50.Senthilkumar

51.R.Subramaniam

52.Maragatham

53.T.R.Ramasamy

54.T.R.Vedhanayagam

55.T.R.Kumar

56.Gurvayee

57.T.A.Gurunathan alias Sekar

58.T.A.Mani

59.T.A.Gurusamy alias Ramani

60.A.Kamalam

61.T.G.Ramasamy

62.T.G.G.Ammavasai

63.A.Moorthy

64.A.Nirmala

65.A.Rani

66.Rajammal

67.Dakshinamoorthy

68.Punithavathi

69.Mahalakshmi

70.Palaniappan

71.Shantha

72.Sasikumar

73.G.Gurusamy

74.Jayammal

75.Ramayeeammal

76.Gurnathan

77.Jayalakshmi

78.Kumaresan

79.Seerangammal (Died)

80.D.Kalyani

81.Arumugam

82.Vedhavalli

83.Sundaragurumoorthy

84.A.Alagesan

85.A.Balasubramaniam

86.A.Sivaji

87.A.P.Arumugam

88.Jayalakshmi

89.Ayyappan

90.Gurudevi

91.Vijayakumari

92.Maheswari

93.G.Balaganapathy

94.P.K.Shanmugam

95.O.P.Shanmugam

96.R.Muthuvenkatachalam

97.Muthulakshmi ... Respondents

(Service of notice to respondents 5 to 9, 11, 12, 14, 16 to 18, 20, 21, 23, 25 to 30, 33 to 36, 38 to 40, 42 to 46, 52 to 97 may be dispensed with, since no relief sought against those respondents in this revision)

Civil Revision Petitions filed under Article 227 of the Constitution of India against the fair and decreetal order dated 11.12.2009 made in I.A.No.545 of 2009 in O.S.No.74 of 2007 on the file of the Additional District Judge, (Fast Track Court No.1), Erode. For Petitioners : Mrs.Chitra Sampath

For Respondents 1 to 4: Mr.V.Bharathidasan

Respondents 5 to 97 given up

O R D E R

The revision petitioners are the defendants 2, 5, 20, 21, 41, 43, 44, 46, 51, 52, 60 and 66 in the suit. The respondents 1 to 4 are the plaintiffs in the suit. The other respondents 5 to 97 are the other defendants in the suit.

2.The revision petitioners filed the above civil revision petition challenging the fair and final order in I.A.No.545 of 2009 in O.S.No.74 of 2007 on the file of the Additional District Court, (Fast Track Court No.1), Erode.

3.The respondents 1 to 4/ plaintiffs had filed the suit in O.S.No.716 of 1994 on the file of Sub Court, Erode which was subsequently transferred to the file of District Court (Fast Track Court No.1), Erode and the suit was re-numbered as O.S.No.74 of 2007 seeking the relief of recovery of possession and for damages under Section 6 of the Specific Relief Act. The petitioners herein had filed their written statement and are contesting the suit. The respondents/ plaintiffs filed an application in I.A.No.545 of 2009 seeking for amendment of the pleadings by including the relief of declaration of title to the suit property. The petitioners filed their counter on various grounds.

4.According to the petitioners, if the amendment application is allowed, the very nature of the suit would be changed. Further, the amendment sought for is barred by limitation. The petitioners also contended that the amendment of the plaint in a suit filed under Section 6 of the Specific Relief Act with one of a regular suit is per se not maintainable, as the scope of enquiry and evidence in both the type of suits are entirely different. According to the petitioners, the proposed amendment is not permissible under law.

5.The trial Court after taking into consideration the case of both sides allowed the application for amendment. Aggrieved over the fair and final order of the trial Court, the present civil revision petition has been filed.

6.The learned counsel appearing for the petitioners contended that if the amendment application is allowed, the very nature of the suit would be changed, since the respondents 1 to 4/ plaintiffs have filed the suit under Section 6 of the Specific Relief Act. The learned counsel also contended that the amendment of the plaint in a suit filed under Section 6 of the Specific Relief Act with one of a regular suit is per se not maintainable, as the scope of enquiry and evidence in both the type of suits are entirely different. In support of her contentions, the learned counsel relied upon the following judgments:

(i)1956 Hyderabad 170 [Gokam Chinna Nagaiah Vs. Nagaram Baliga and others] wherein it has been held that a distinction has to be drawn between a suit based upon possessory title and a suit under Section 9 Specific Relief Act. In the former case the plaintiff would be entitled to a decree only where the plaintiff's possession was sufficient proof to his title while in the latter case the Court has merely to see whether the plaintiff was in possession six months prior to the date of the suit. Where a plaintiff sue for possession on the basis of title and fails to establish title he cannot be granted a decree for possession under Section 9, Specific Relief Act. It would not be in the interests of justice to grant such a decree to the plaintiff as the Court having gone into the question of title and given a finding, if simple decree for possession were given, the defendants would necessarily have to go and establish his title over again.

(ii)(2004) 4 Supreme Court Cases 664 [Sanjay Kumar Pandey and others Vs. Gulbahar Seikh and others] wherein the Hon'ble Supreme Court held that a suit under Section 6 of the Specific Relief Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title in the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act.

(iii)(2008) 15 Supreme Court Cases 610 [Ashutosh Chaturvedi Vs. Prano Devi alias Parani Devi and others] wherein the Hon'ble Supreme Court held that when an application for amendment of the plaint is allowed and it would change the nature of the suit as a rule the Court will decline to allow amendment for a fresh suit on the amended claim if it had become barred by limitation on the date of application.

7.Countering the submissions made by the learned counsel for the petitioners, the learned counsel for the respondents submitted that the order passed by the trial Court is just and proper and in support of his contentions, the learned counsel for the respondents relied upon the following judgments:

(i)2007 (5) CTC 595 [Church of South India Trust Association, Tiruchirapalli-Thanjavur Diocesan Council, represented by its Diocesan Treasurer, Mr.R.Sureshkumar and others Vs. Kovil Pillai and others] wherein this Court held that amendment could be ordered at any time and at any stage of proceeding for the purpose of determining real questions in controversy between parties without altering the nature and character of the suit.

(ii)(2008) 4 Supreme Court Cases 632 [South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and others] wherein the Hon'ble Supreme Court held that it is always open to the Court to allow an amendment if it is of the view that allowing of an amendment shall really subserve the ultimate cause of justice and avoid further litigation.

(iii)(2008) 4 Supreme Court Cases 102 [Puran Ram Vs. Bhaguram and another] wherein the Hon'ble Apex Court held that the amendment is permissible because proposed amendment did not change nature of the suit. The suit remained suit for specific performance, nor did limitation come in the way of such amendment because amendment related back to date of filing of suit which was within limitation.

(iv)(2006) 3 MLJ 70 (S.C.) [Rajesh Kumar Aggarwal and others Vs. K.K.Modi and others] wherein the Hon'ble Apex Court held that Order 6 Rule 17 declares that the Court at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question for controversy between the parties. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side.

(v)2002 (4) CTC 189 [Sampath Kumar Vs. Ayyakannu and another] wherein the Hon'ble Supreme Court held that without changing the basic structure of the suit amendment can be allowed.

8.On a careful consideration of the materials available on record and the submissions made by both the learned counsels, it could be seen that the respondents 1 to 4/ plaintiffs have filed the suit in O.S.No.74 of 2007 for recovery of possession and for damages under Section 6 of the Specific Relief Act. Thereafter, before the commencement of the trial, the respondents 1 to 4/ plaintiffs had filed an application under Order 6 Rule 17 in I.A.No.545 of 2009 seeking for amendment of the pleadings by including the relief of declaration of title to the suit property.

9.The learned counsel for the petitioners mainly contended that there is difference with regard to a filing of the suit under Section 6 of the Specific Relief Act and a regular suit filed under Order 7 of the Civil Procedure Code. It is pertinent to extract Section 6 of the Specific Relief Act, which reads as follows: "6.Suit by person dispossessed of immovable property:

(1)If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2)No suit under this Section shall be brought:

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3)No appeal shall lie from any order or decree passed in any suit instituted under this Section, nor shall any review of any such order or decree be allowed.

(4)Nothing in this section bar any person from suing to establish his title to such property and to recover possession thereof.

10.Under Section 6 of the Specific Relief Act, if any person is dispossessed without his consent of immovable property otherwise than in due course of law may file a suit within six months from the date of dispossession. Further, no appeal shall lie from any order or decree passed in any suit instituted under Section 6 of the Specific Relief Act. Further, under Sub Clause 4 of Section 6 of the Specific Relief Act nothing in the Section shall bar any person from suing to establish his title to such property and to recover possession thereof.

11.There is difference between a suit on the basis of possessory right as contemplated by Section 6 of the Specific Relief Act and a suit based on possessory title. Section 6 of the Specific Relief Act is intended to provide a special remedy for a person who, being, whatever his title in possession of immovable property, is ousted therefrom.

12.The summary cause of action provided by Section 6 of the Specific Relief Act was not the same thing as the cause of action which is really a cause of action based on title and that the relief claimed in a suit under the Specific Relief Act was not such as might have been claimed in any suit or application based on a cause of action.

13.The only allegations that are relevant for amending a suit under Section 6 of the Specific Relief Act are those of the plaintiffs' previous possession and dispossession by the defendant. The title of the parties are not relevant and indeed it is specifically provided that the section does not bar any person from recovering possession of the property on the basis of his title. The result of this provision in Section 6 is that if the defendants have a better title than the plaintiffs, they could not resist the plaintiffs' suit for recovery of possession, if the plaintiffs prove the allegation made by them. Further, no question of title either of the plaintiffs or of the defendant can be raised or gone into in a suit under Section 6 of the Specific Relief Act.

14.The respondents 1 to 4/ plaintiff will be entitled to succeed without proving any title on which they can fall back upon, and the defendants succeed even though they may be in a position to establish the best of all titles. The restoration of possession in such a suit is, however, always subject to a regular title suit and the person who has the real title or even a better title cannot therefore be prejudiced in any way by a decree in such a suit. It would always be open to them to establish their title in a regular suit and recover back possession. Therefore, Section 6 makes it clear that the question of title and other issues are not to be gone into by the Court when the suit is filed under 6 of the Act. The question of title is irrelevant in a suit under Section 6 of the Act.

15.Section 6 of the Specific Relief Act frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. The question of lawful possession does not enter the issue at that stage. All that the Court is then required to consider is whether an evicted person has been wrongfully dispossessed and he has come to the Court within six months from the date of dispossession. The various civil rights between the landlord and the tenant will have to be adjudicated upon finally, in a regular suit. The expression "any other title" occurring in the section must mean title other than anterior possession claimed by the plaintiffs. That would mean that it would be sufficient for the person in possession to have mere possessory title; the other person should have a title other than possession for example, ownership.

16.The judgments relied upon by the learned counsel for the respondents/ plaintiffs do not pertain to the suits filed under Section 6 of the Specific Relief Act. As already stated, there is difference between the suits filed under Section 6 of the Specific Relief Act and the regular suit filed under Order 7 of the Civil Procedure Code. Therefore, the judgments relied upon by the learned counsel for the respondents/ plaintiffs do not apply to the facts and circumstances of the present case.

17.The principles laid down in the judgments relied upon by the learned counsel for the petitioners applies to the facts and circumstances of the present case. The amendment sought for in a suit filed under Section 6 of the Specific Relief Act by including the prayer for declaration of title and for damages will change the nature and character of the suit. Further, under Section 6 (4) of the Specific Relief Act there is no bar for the plaintiffs from suing to establish their title to the suit property and to recover back the possession. As already stated since the plaintiffs have filed the suit under Section 6 of the Act, they cannot seek for amendment of the plaint for including the prayer for declaration of title and for damages. Therefore, the amendment application filed under Order 6 Rule 17 of the Civil Procedure Code in a suit filed under Section 6 of the Specific Relief Act by including the relief of declaration and damages is not maintainable.

18.That apart, the provisions of Section 6 of the Act does not provide for appeal as against the decree, whereas, in a regular suit for title, the parties are at liberty to file an appeal as against the judgment and decree. Therefore, the application filed under Order 6 Rule 17 for amendment of plaint in I.A.No.545 of 2009 in O.S.No.74 of 2007 on the file of the Additional District Judge, (Fast Track Court No.1), Erode is liable to be rejected. The fair and final order of the trial Court are liable to be set aside. Accordingly, the fair and final order passed in I.A.No.545 of 2009 in O.S.No.74 of 2007 on the file of the Additional District Judge, (Fast Track Court No.1), Erode are set aside. The civil revision petition is allowed. However there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

va

To

The Additional District Judge,

(Fast Track Court No.1),

Erode