Laxmi Narasamma v. S Devaiah

HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY C.R.P.No.2612 OF 2016 ORDER:

This revision petition is filed under Article 227 of the Constitution of India challenging the order dated 21.03.2016 passed by the IX Junior Civil Judge, City Civil Court, Hyderabad in I.A.No.64 of 2016 in O.S.No.2275 of 2015 dismissing the petition filed under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure and read with Rule 28 Cr.P.C .

The petitioner herein filed suit for perpetual injunction restraining the respondents from constructing community hall in the site belonging to the Municipal Corporation raising several contentions. However, it came to the notice of the petitioner that the respondents partly completed the construction of the community hall. Therefore, he filed petition under Order 6 Rule 17 of the Code of Civil Procedure to convert the suit for injunction simplicitor into suit for mandatory injunction for removal of construction. The trial Court dismissed the said petition on the ground that the proposed amendment would alter the nature of the suit and went into merits of the suit. Challenging the order passed by the trial Court, the present revision petition is filed raising several contentions.

Learned counsel for the revision petitioner contended that merits in the main suit cannot be gone into at this stage and that the conversion of suit for injunction into mandatory injunction would not amounts to change of nature of suit and prayed to set aside the same.

Undisputedly, the petitioner is owner of the adjacent site belonging to the Municipal Corporation where construction is likely to be completed by the respondents. The only grievance before the Court is that in the event, the construction of community hall is completed, it would infringe the right to pass through the road for ingress and egress to his house and therefore, he sought for injunction initially and now sought for mandatory injunction converting the relief from Section 38 to 39 of the Specific Relief Act. Admittedly, the petitioner has no interest in the property where the proposed construction is going on. The proposed amendment would change the nature of suit.

Even otherwise, the petitioner, who has no interest in the property except to claim right to pass through the road, he cannot maintain such suit for mandatory injunction in view of the bar under Section 41 of the Specific Relief Act. Therefore, I find no illegality or irregularity in the order passed by the trial Court in dismissing the petition filed under Order 6 Rule 17 CPC since the conversion of suit from perpetual injunction to mandatory injunction amounts to change of nature of suit.

grounds to interfere with the order passed by the trial Court while exercising power under Article 227 of the Constitution of India.

Accordingly, the civil revision petition is dismissed confirming the order dated 21.03.2016 passed in I.A.No.64 of 2016 in O.S.No.2275 of 2015 by the IX Junior Civil Judge, City Civil Court, Hyderabad. There shall be no order as to costs.

As a sequel, miscellaneous petitions, if any, pending in the revision shall stand closed.

__________________________________ M.SATYANARAYANA MURTHY,J 01.09.2016 kvrm

HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY C.R.P.No.2612 OF 2016 DATED: 01.09.2016 kvrm