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2002 DIGILAW 228 (MAD)

Vadivel v. Natarajan and others

2002-03-14

M.CHOCKALINGAM

body2002
ORDER: This revision petition is preferred by the plaintiff in a suit in O.S.No.67 of 1992 pending on the file of the learned District Munsif, Dharmapuri. 2. Originally, the said suit was filed for declaration or title with consequential permanent injunction. The suit was contested by the respondents/ defendants by filing a written statement and issues were framed. Pending the suit, the instant application in I.A.No.350 of 1996 was filed by the plaintiff, seeking amendment of the plaint to introduce two new prayers, namely, recovery of possession and mandatory injunction. After hearing the objections raised by the respondents/ defendants, the application was dismissed, which has brought forth this civil revision petition. 3. What was contended by the revision petitioner/ plaintiff before the Court below and equally here also is that at the time of filing of the suit, an interlocutory application was filed for permanent injunction and after disposal of the same by the trial Court, a civil miscellaneous appeal was preferred. Wherein, the first appellate forum found that a part of the property was in possession of the plaintiff, while the remaining part was within the defendants. Under the stated circumstances, there arose a necessity for the plaintiff to amend the plaint for the purpose of recovery of possession of that part of the property what ws found to be in possession of the defendants. Added further the learned counsel that during the pendency of the proceedings, there was an installation of pipelines by the defendants and hence, by granting of mandatory injunction, the defendants should be directed to remove the same. 4. Opposing the contentions, the learned counsel for the respondents would urge that the lower Court was perfectly correct in dismissing the application, since the date of taking of possession by the defendants is not averred in the affidavit and an Advocate Commissioner appointed by the Court, on inspection of the property has filed a report stating that the pipelines were in existence even at the earliest and thus, now the relief of mandatory injunction is hopelessly barred by limitation, and hence, the amendment should not be allowed. Therefore, the lower Court’s order has got to be sustained. 5. After careful consideration of the rival submissions, the Court has to necessarily agree with the contentions put forth by the plaintiff’s side. It was a suit for declaration and for consequential permanent injunction. Therefore, the lower Court’s order has got to be sustained. 5. After careful consideration of the rival submissions, the Court has to necessarily agree with the contentions put forth by the plaintiff’s side. It was a suit for declaration and for consequential permanent injunction. It is not in dispute that after the disposal of the interlocutory application for interim injunction, a C.M.A. was preferred, wherein a part of the property was found to be in possession of the defendant and a part of the property was found in the possession of the plaintiff. In respect of that defendant, now the plaintiff has come forward with the instant application for amendment to include the relief of recovery of possession, and hence, that has got to be ordered. It cannot be stated in view of the above that the character of the suit is changed. Insofar as the question as to the mandatory injunction is concerned, the Court is of the view that even as to the question of limitation has got to be raised, the defendants could well raise the same in the additional written statement and it has got to be adjudicated upon by the trial Court. The counsel for the revision petitioner relied on a decision of the Supreme Court reported in Ragu Thilak D.John v. S.Rayappan and others, (2001)2 S.C.C. 472 , wherein the Honourable Supreme Court has held that “Civil Procedure Code, 1908 -Order 6, Rule 17 - Amendment of plaint - relief sought barred by limitation - where it is arguable that relief sought by way of amendment would be barred by law of limitation, held amendment should still be allowed and the disputed matter made the subject matter of an issue.” Hence, in view of the abovesaid decision of the Supreme Court, insofar as the question of the limitation in respect of the second prayer for mandatory injunction is concerned, the defendants are at liberty to raise the same in the additional written statement and the lower Court is also directed to try the same and decide the issue. Under the stated circumcumstances, the order of the lower Court is set aside. The lower Court is directed to permit the plaintiff to amend the plaint accordingly and give sufficient time to the defendants to file a written statement and frame necessary issues and dispose of the same in accordance with law. 6. Under the stated circumcumstances, the order of the lower Court is set aside. The lower Court is directed to permit the plaintiff to amend the plaint accordingly and give sufficient time to the defendants to file a written statement and frame necessary issues and dispose of the same in accordance with law. 6. In result, the I.A.350 of 1996 is allowed. The civil revision petition is allowed, leaving the parties to bear their costs. Consequently, connected C.M.P., is closed.