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Moyankutty and ors. Vs. Narayanan Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1039 of 1951
Judge
Reported inAIR1952Mad782; (1952)1MLJ683
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantMoyankutty and ors.
RespondentNarayanan Nair and ors.
Advocates:C.S. Swaminathan, Adv.
DispositionRevision allowed
Excerpt:
- .....under the mortgagees. defendants 1 and 2 deposited the arrears of rent claimed in the suit and the suit was stayed under act 17 of 1946.3. this plaintiff thereupon filed an amendment petition (la. no. 668 of 1950) giving up the claim for recovery of possession of the plaint property and adding a prayer for the extinguishment of the mortgage, i.e. he gave up a portion of his claim.4. the respondents objected to the amendment being allowed on the ground that it was a ruse to deny them the rights conferred under act 17 of 1946.5. the learned district munsif agreed with this contention and held that this application was not bona fide and that it was filed to get over the order of stay of the suit. he finally refused to allow the amendment.6. i am unable to see either the logic or the force.....
Judgment:
ORDER

Ramaswami, J.

1. This civil revision petition is filed against the order made by the learned District Munsif of Manjeri refusing to allow an amendment in O.S. No. 155 of 1949.

2. The short facts are: the plaintiff filed this suit for recovery of possession of the properties held under a mortgage sued on. The mortgage sued on hero is for Rs. 400. There was also a claim for arrears of purappad. Defendants 3 to 7 are said to be tenants in possession under the mortgagees. Defendants 1 and 2 deposited the arrears of rent claimed in the suit and the suit was stayed under Act 17 of 1946.

3. This plaintiff thereupon filed an amendment petition (LA. No. 668 of 1950) giving up the claim for recovery of possession of the plaint property and adding a prayer for the extinguishment of the mortgage, i.e. he gave up a portion of his claim.

4. The respondents objected to the amendment being allowed on the ground that it was a ruse to deny them the rights conferred under Act 17 of 1946.

5. The learned District Munsif agreed with this contention and held that this application was not bona fide and that it was filed to get over the order of stay of the suit. He finally refused to allow the amendment.

6. I am unable to see either the logic or the force of the learned District Munsif's reasoning for denying the relief for amendment because the motive with which the plaintiff filed the amendment is neither here nor there. The amendment has to be allowed so long as he is within his rights and does not take away any valuable rights which had accrued to the opposite party. This is not the case here. It is open to a plaintiff to give up a portion of his claim and after amendment the suit will cease to be, one for the recovery of possession and will not prejudice rights conferred by Act XVII of 1946 or the later Acts enacted for the pre-diction (protection?) of tenants. Secondly, we are not concerned here with the stay of this suit. The only point to be considered is whether the plaintiff can restrict his claim by stating that they only seek now to redeem that mortgage and seek its extinguishment and that they do not want to disturb the people who are in possession. This the plaintiffs are certainly entitled to do. The fact that the restriction may lead to some other result in regard to stay is not a matter which ought to weigh in considering the question of allowing or disallowing the amendment; nor can the court consider the bona fides or mala fides of a petition for amendment so long as the amendment claimed is within the right of a plaintiff.

7. In these circumstances, I have no hesitation in setting aside the order of the lower court and directing that the amendment beallowed and the suit be disposed of accordingto law. The costs of this application will becosts in the cause.


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