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2005 DIGILAW 1218 (MAD)

Velusamy & Another v. M. Ponnusamy

2005-07-29

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The Revision Petitioners herein are the defendants in O.S.No.247/2001, on the file of the District Munsif Court, Namakkal. The respondent/plaintiff filed the said suit for declaration that the respondent/plaintiff is entitled to the suit cart track referred to in the plaint rough Plan and also for such other reliefs. 2. The respondent/plaintiff also filed an Application I.A.No.471/2001 in O.S.No.247/2001, on the file of the District Munsif Court, Namakkal, for interim injunction, restraining the Revision Petitioners/defendants, not to disturb the respondent/plaintiff from using the suit cart track. The said I.A.No.471/2001, after contest, was dismissed as per the order dated 4.7.2001, on finding that even at the time of filing of the suit, the suit cart track was closed, which fact has not been stated in the plaint by the respondent/plaintiff. 3. Thereafter, the respondent/plaintiff filed an application I.A.No.637/2001, in O.S.No.247/2001, on the file of the District Munsif Court, Namakkal, for interim mandatory injunction to remove the obstructions in the suit cart track. That petition, after contest was dismissed by the District Munsif Court, Namakkal, as per order dated 26.7.2001. 4. The respondent/plaintiff filed an appeal in C.M.A.No.16/2001, on the file of the Sub Court, Namakkal, against the order dated 26.7.2001, passed by the District Munsif Court, Namakkal. The learned Sub Judge, Namakkal, after hearing the arguments of both sides, and in considering the report filed by the Advocate Commissioner, allowed the appeal, as per the judgment dated 11.4.2003, holding that in the interest of justice, and till the rights of the parties are decided finally in the suit, such relief of interim mandatory injunction in favour of the respondent/plaintiff can be granted. That judgment dated 11.4.2003 passed by the learned Sub Judge, Namakkal, is now under challenge in this Revision Petition. 5. That judgment dated 11.4.2003 passed by the learned Sub Judge, Namakkal, is now under challenge in this Revision Petition. 5. Learned counsel for the Revision Petitioners/defendants submitted that though I.A.No.637/2001 filed by the respondent/plaintiff for the relief of interim mandatory injunction was dismissed as per the order dated 26.7.2001, passed by the learned District Munsif, Namakkal, on the ground that the issue regarding the obstructions said to have been in existence in the suit cart track, was even before the filing of the said suit or not can be decided only at the time of trial of the suit, the appeal filed by the respondent/plaintiff, in C.M.A.No.16/2001, was allowed by the learned Sub Judge, Namakkal holding that the relief as to the existence of the suit cart track is to be sought only in the said suit is not acceptable, and such observation is not proper. 6. As rightly argued by the learned counsel for the Revision Petitioners/defendants, though the Advocate Commissioner, after inspecting the suit cart track, filed the report and rough plan, stating that there are obstructions in the suit cart track, the trial court dismissed the application I.A.No.637/2001 filed by the respondent/plaintiff, as per the order dated 26.7.2001, since, without even seeking amendment to the plaint for necessary relief of mandatory injunction, the respondent/plaintiff straight away filed I.A.No.637/2001, which is the subject matter in this Revision Petition, for grant of interim mandatory injunction for removal of the obstructions in the suit cart track. 7. From the arguments made by the learned counsel for the Revision Petitioners/defendants, it is clear that the judgment dated 11.4.2003 passed by the learned Sub Judge, Namakkal granting the relief of interim mandatory injunction is erroneous and improper, in view of the fact that I.A.No.637/2001 filed by the respondent/plaintiff for the relief of interim mandatory injunction is not maintainable, without the amendment of the plaint in the said suit, seeking necessary relief for mandatory injunction. Therefore that judgment dated 11.4.2003 passed by the learned Sub Judge, Namakkal, has to be set aside. 8. In the result, this Revision Petition is allowed. The judgment dated 11.4.2003 passed in C.M.A.No.16/2001 by the learned Sub Judge, Namakkal is set aside. I.A.No.637/2001 is dismissed. Therefore that judgment dated 11.4.2003 passed by the learned Sub Judge, Namakkal, has to be set aside. 8. In the result, this Revision Petition is allowed. The judgment dated 11.4.2003 passed in C.M.A.No.16/2001 by the learned Sub Judge, Namakkal is set aside. I.A.No.637/2001 is dismissed. It is made clear that the respondent/plaintiff is at liberty to file necessary application for amendment of the plaint in the said suit, seeking the relief of mandatory injunction in respect of the suit cart track and the trial court is to dispose the same in accordance with law. No costs. C.M.P.No.6692/2003 is closed.