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2014 DIGILAW 2428 (MAD)

Rajammal alias Vallimuthu v. G. Subramanian

2014-08-06

V.M.VELUMANI

body2014
Judgment : 1. This Civil Revision Petition has been filed to set aside the fair and decretal order, dated 06.10.2007, passed by the learned Principal District Munsif, Srivilliputhur, in I.A.No.817 of 2007 in O.S.No.686 of 2004. 2. The petitioners are the defendants 1 and 2, whereas the first respondent is the plaintiff and the second respondent is the third defendant in the suit in O.S.No.686 of 2004 on the file of Principal District Munsif Court, Srivilliputhur. 3. The first respondent filed the suit in O.S.No.686 of 2004, for the relief of declaration that the suit property belongs to him absolutely and for permanent injunction restraining the petitioners and the second respondent from interfering with his peaceful and enjoyment of the suit property. He has also filed I.A.No.570 of 2004 for interim injunction pending suit. No interim injunction was granted and the said application was dismissed on 02.06.2004. 4. The first respondent filed I.A.No.817 of 2007, for amendment of the plaint to include the prayer of mandatory injunction as the petitioners have put up the superstructure after dismissal of I.A.No.570 of 2004. The first respondent sought this amendment due to the construction put up by the petitioners after filing of the suit and after dismissal of the application in I.A.No.570 of 2004, for interim injunction. The petitioners filed counter affidavit stating that the amendment sought for will change the entire cause of action and new case is sought to be introduced. The first respondent did not state the extent of encroachment. Further, the first respondent, on earlier occasion, filed I.A.No.88 of 2006 for the very same relief and the same was dismissed on 22.06.2006 and hence, the second application for the very same relief is not maintainable. 5. Before the learned Principal District Munsif, the learned counsel for the first respondent relied on the Judgment reported in 2000 (1) MLJ 88 [Chandra and Others Vs. Emman Illanchizhian and Others] and argued that I.A.No.88 of 2006 was dismissed for default for not taking steps to serve the second respondent herein. Since the earlier application was not decided on merits, the present application is maintainable. 6. Learned counsel for the petitioners relied on the Judgment reported in 2007 (4) CTC 227 [V. Ranga Durai and Others Vs. S. Jayalakshmi and Another] and argued that as the first respondent has failed to furnish the extent of encroachment, the application has to be dismissed. 7. 6. Learned counsel for the petitioners relied on the Judgment reported in 2007 (4) CTC 227 [V. Ranga Durai and Others Vs. S. Jayalakshmi and Another] and argued that as the first respondent has failed to furnish the extent of encroachment, the application has to be dismissed. 7. The learned Principal District Munsif, considering all the materials and the arguments, held that no new case is sought to be introduced and as the first respondent has stated that the building has been put up in the suit property subsequent to the filing of the suit and allowed the application. 8. Against the said order of allowing the application, the petitioners have filed the present civil revision petition. 9. Heard Mr. M. Ashok Kumar, learned counsel appearing for the revision petitioners and Mr. V. Ramakrishnan, learned counsel appearing for the first respondent. 10. Learned counsel for the petitioners and the first respondent reiterated the averments made in the affidavit and the counter affidavit in I.A.No.817 of 2007. 11. I have carefully perused the materials on record and the arguments of the learned counsel for the petitioners and the first respondent. 12. The application in I.A.No.871 of 2012 was filed by the first respondent to include the prayer of mandatory injunction to remove the building put up by the petitioners subsequent to filing of the suit. Originally, the first respondent prayed for declaration and injunction. Due to subsequent development, the first respondent is seeking mandatory injunction. This amendment does not introduce a new cause of action or a new case. The earlier I.A.No.88 of 2006 was dismissed for not taking steps to serve the second respondent. As the said application was not decided on merits, I.A.No.817 of 2007 is maintainable. Therefore, this Court finds no reason to interfere with the order of the learned Principal District Munsif. 13. The learned counsel for the first respondent submitted that after the order allowing the application for amendment of the Principal District Munsif Court, the amendment was carried out and the trial was commenced and the evidence on behalf of the first respondent has been completed and the suit is posted for evidence on behalf of the petitioners. 14. In the result, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.