V.Saravanan v. T.S.Manian
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.3.2020 CORUM ;
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR C.R.P.No. 420 of 2020 C.M.P.No.2181 of 2020 V.Saravanan ...
Petitioner/Plaintiff Vs.
1.T.S.Manian 2.S.Nallasamy 3.D.Saravanakumar 4.P.S.Tamilselvan 5.N.Thulasiammal 6.N.Karunakaran 7.K.Ramya ...
Respondents/Defendants Civil Revision petition is filed under Article 227 of the Constitution of India against the order, dated 4.12.2019 passed in I.A.No.6 of 2019 in O.S.No.30 of 2013 on the file of the Additional District Munsif, Erode.
For Petitioner : Mr.Rajmakesh For Respondents : Mr.V.S.Kesavan *****
O R D E R
The petitioner herein has filed a suit in O.S.No.30 of 2013 for declaration and permanent injunction against the respondents, claiming right over the common channel in the suit schedule property. The respondents filed an application in I.A.No.287 of 2013 for appointment of Advocate Commissioner to inspect the suit property for physical verification and also to submit a report. Pursuant to the order passed by the Court below, Advocate Commissioner submitted a report before the Court below. In the report, it is stated that between 'B' to 'H' shown in the sketch, the respondents herein erected an iron fence and there is no channel in the suit property. The petitioner made objection to the Commissioner's report by stating that there is no such iron fence in the suit schedule 1/6
mentioned property. Now, the revision petitioner has filed an application in I.A.No.6 of 2019 for amendment of the pleadings and prayer in the plaint. The petitioner sought for amendment by amending the prayer to include the relief of mandatory injunction for removal of iron fence erected by the respondents herein and also amend the pleadings in the plaint. The Court below dismissed the said application filed by the revision petitioner. Challenging the said order, the petitioner has filed the present Civil revision petition before this Court.
2. The learned counsel appearing for the respondents would submit that in the Commissioner's report, dated 12.9.2013 along with sketch enclosed would show that between 'B' to 'H' shown in the sketch, there is iron fence erected by the respondents herein. The revision petitioner made an objection to the report by stating that there is no such fence erected in the suit property. Now, on 8.11.2019, the petitioner came to know that the respondent erected a fence in the suit property and therefore, filed the instant application which is totally incorrect. The application filed by the petitioner is barred by limitation. The petitioner cannot file such application after a lapse of 6 years at the time of cross examination of D.W.1 and therefore, rightly dismissed by the Court below.
3 Heard the learned counsel appearing for the petitioner, the learned counsel appearing for the respondents and perused the materials available on record. 4 The point for consideration in the Civil revision petition is that whether the amendment application filed by the petitioner to amend the prayer for mandatory injunction is barred by limitation ?
5. The revision petitioner has filed an application in I.A.No.6 of 2019 before the Court below to include the relief of mandatory injunction by way of amendment in the pleadings as well as prayer in the plaint. In the suit, Commissioner has filed a report in the year 2013. In response to the report, the revision petitioner has made objection by stating that there is no such fence erected in the suit schedule mentioned property, especially between 'B' to 'H' as shown in the sketch filed by the Advocate Commissioner.
On 8.11.2019, the respondents have erected a fence in the suit property at 'B' to 'H' as shown in the sketch filed by the Advocate Commissioner along with the report. The petitioner made objection to the Advocate Commissioner's report submitted in the year 2013. Therefore, the petitioner had the knowledge in the year 2013 itself that the respondents erected a fence in the suit schedule 2/6
mentioned property as found in the Commissioner's report. According to the revision petitioner, cause of action arose on 8.11.2019 to include the prayer of mandatory injunction and on 4.12.2019, the instant application has been filed beyond six years from the date of knowledge of the petitioner. Further, at the stage of cross examination of D.W.1 by the revision petitioner, certainly the petitioner is not entitled for amendment of the prayer. Therefore, there is no error or illegality in the order passed by the Court below and the Civil revision petition is deserves to be dismissed.
6. As the suit is of the year 2013, the trial Court is directed to dispose of the suit within a period of four months from the date of receipt of a copy of the order. It is made clear that the Court below shall dispose of the suit without being influenced by the order passed in interlocutory application.
7. Accordingly, the Civil Revision petition stands dismissed. No costs. Connected miscellaneous petition is closed.
s/d- Assistant Registrar True Copy Sub-Assistant Registrar vaan To The Additional District Munsif, Erode +1 cc to M/s.V.S.Kasavan Advocate sr21479 +1 cc to M/s.S.Rajmakesh Advocate sr21126 C.R.P.No. 420 of 2020 C.M.P.No.2181 of 2020 rsv(co) aa08/07/2020 3/6