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2013 DIGILAW 673 (MAD)

R. Radhika v. Ibrahim Rowther (Died)

2013-01-30

G.RAJASURIA

body2013
Judgment :- 1. This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 18.04.2011 passed in I.A.No.194 of 2011 in O.S.No.1663 of 1994, by the learned Principal District Munsif, Trichy. 2. Heard both sides. 3. A resume of facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: The revision petitioner being the plaintiff filed the suit in O.S.No.1663 of 1994 seeking the following relief: "(a) For Declaration that AB wall is the exclusive wall belonging to the plaintiff and for consequential Injunction restraining the defendants, their men, agents, servants, partisans or any one acting under them from interfering with the peaceful, lawful, physical and exclusive possession by way of trees pass or otherwise in respect of the suit property and in particulars to the AB wall." (extracted as such) The written statement was filed; The Advocate Commissioner was also appointed and he submitted his report. Up went the trial and it was over. Thereafter, it appears that I.A.No.194 of 2011 was filed seeking the following relief by the plaintiff: "For the reason stated in the accompanying affidavit it is therefore prayed that the Hon'ble court may be pleased to grand permission to made amendment in the plaint as detailed below and thus render justice." DETAILS OF AMENDMENT Include the Para No.10(a), after filing of the suit the defendant had made a construction in the disputedAB-Wall which is against law and the defendant have no right to do the same. The unauthorized construction made by the defendant must be removed by an order of Mandatory Injunction of this Hon'ble court. The constructions are made after the suit. In the column of Details of Valuation add: b) For the relief of mandatory injunction directing the defendants to remove the construction in the disputed AB-Wall as detailed in the plan filed by the Advocate-Commissioner mentioned as B1 to B. The plaintiff values the relief at Rs.1,00,000/- for the construction made after the suit. In the column of Details of Valuation add: b) For the relief of mandatory injunction directing the defendants to remove the construction in the disputed AB-Wall as detailed in the plan filed by the Advocate-Commissioner mentioned as B1 to B. The plaintiff values the relief at Rs.1,00,000/- for the construction made after the suit. Court fee paid under section 27(c) of Tamil Nadu Court Fees Act is Rs.7500/- To Correct the Total Valuation is as Rs.1,00,400/- To Correct the Total Court fee paid is Rs.7530.50p/- In the Prayer column add prayer (a-1)- directing the defendants to remove the construction made in the suit wall more fully described in the commissioner plan B1 to B Wall." (extracted as such) The counter affidavit was filed by the defendant. After hearing both sides, the lower Court dismissed the application mainly on the ground that it was a belated one and also P.W.1, the plaintiff, while deposing before the Court did not whisper anything about the additional construction made by the defendants in the said disputed "AB" wall. 4. Being aggrieved by and dissatisfied with the order passed by the lower Court, the Civil Revision Petition has been focussed on various grounds. 5. The learned Counsel for the revision petitioner inviting the attention of this Court to the versions in the Advocate Commissioner's report, would submit that the Advocate Commissioner visited the suit property on 05.08.1994 and noted down the physical features and observed nothing about any new wall over the old wall having been constructed; however he only observed that he could see on the defendants' side heaps of sand, masonry materials etc.; in fact, pending litigation, the defendants raised additional construction over the disputed "AB" wall and that has to be removed; then only, in the event of the lower Court passing the decree in favour of the plaintiff, he would be able to enjoy the "AB" wall exclusively and legally. 6. Per contra, the learned Counsel for the defendants would make a supine submission to the effect that absolutely, his clients are having no objection for the plaintiff to take such alleged additional construction over "AB" wall, in the event of the plaintiff getting it declared by the lower Court that he is entitled to the "AB" wall. 6. Per contra, the learned Counsel for the defendants would make a supine submission to the effect that absolutely, his clients are having no objection for the plaintiff to take such alleged additional construction over "AB" wall, in the event of the plaintiff getting it declared by the lower Court that he is entitled to the "AB" wall. He would also pyramid his argument by stating that the application for amendment was belatedly filed, so to say, the suit was field in the year 1994 and such application for amendment was filed in the year 2011, which cannot be countenanced and upheld as tenable under the law and the lower Court appropriately dismissed the application. 7. The points for the consideration are: (i) Whether the amendment sought for in the plaint is absolutely necessary? (ii) Whether there is any illegality or perversity in the order passed by the lower Court? Point Nos.(i) and (ii): 8. At the outset itself, I would like to refer to the following decisions of the Honourable Apex Court: (i) Vidyabai and others v. Padmalatha and another reported in 2008 (4) TLNJ 588 (Civil). (ii) Van Vibhag K.G.N. Sahkari Sansthan v. Ramesh Chander and others reported in 2011 (1) MWN (Civil) 232. 9. A mere running of the eye over the aforesaid precedents of the Honourable Apex Court unambiguously and unequivocally convey and portray the legal position that at the time of entertaining the application under Order VI Rule 17 of the Code of Civil Procedure, the Court is enjoined to look into the fact as to whether the proposed amendment is barred by limitation, if it is so, then such application has to be dismissed. Also, it is clear that no doubt, even though there is an embargo for seeking amendment after commencement of trial, yet on valid reasons amendment can be allowed at any stage. 10. Here, the dispute is mainly with regard to "AB" wall. In fact, on the northern side of the wall, the defendants is in occupation of the area and on the southern side of the wall, the plaintiff is in occupation of the area concerned. The plaintiff would contend that "AB" wall belongs to him exclusively, whereas the defendants would claim otherwise. In fact, on the northern side of the wall, the defendants is in occupation of the area and on the southern side of the wall, the plaintiff is in occupation of the area concerned. The plaintiff would contend that "AB" wall belongs to him exclusively, whereas the defendants would claim otherwise. If really, the additional construction was made illegally over the "AB" belonging to the plaintiff, then at the time of filing the suit itself, she should have asked for demolition of such additional construction. But on the other hand, if additional construction was made pendente lite , then she would be entitled to get the plaint amended in all probabilities for mandatory injunction to demolish the said additional construction. In the opinion of the lower Court, there was no clinching evidence relating to those facts. 11. The learned Counsel for the respondents would submit that in the event of "AB" wall being declared as one belonging to the plaintiff whatever alleged additional construction made on that wall could be taken by the plaintiff; and it is for her to retain it or demolish it. 12. I would like to agree with the submission made by the the learned Counsel for the respondents. The law is to the effect that pending litigation, in the subject matter of the suit property, if any unauthorised construction is made by the opponent, and if the plaintiff succeeds in the litigation process, he can very well enjoy the said additional construction also, unless it is other wise ordered by the Court. Point Nos.(i) and (ii) are answered accordingly. 13. On balance, the Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs.