Sebasthiammal v. Anbalagan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.08.2023 CORAM :

THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN C.R.P(PD)No.2036 of 2020 Sebastiammal .. Petitioner Anbalagan .. Respondent Petition filed under Article 227 of the Constitution of India against the said fair and decreetal order dated 10.02.2020 passed by the learned Additional District Munsif, Cheyyar, in I.A.No.76 of 2020 in O.S.No.337 of 2003.

For Petitioner : Ms.Deepika .G for Mr.S.Giritharan For Respondent : Ms.G.Lavanya

O R D E R

The suit in O.S.No.337 of 2003 filed before the learned Principal District Munsif Court, Cheyyar was originally presented for bare injunction. Thereafter, an Advocate Commissioner visited the suit property and submitted a report together with sketch. From the sketch, the plaintiff became aware that certain portion of the suit property had been encroached by the defendant and therefore, the prayer was amended 1/5

to that of mandatory injunction to remove the superstructure. 2.It came to the notice of the plaintiff after filing an application under the Right to Information Act regarding the survey that, apart from the defendant, there were other encroachers also in the said property. Therefore, she moved I.A.No.76 of 2020 seeking permission for withdrawing the suit to present a fresh suit on the same cause of action. This was stiffly opposed by the defendant by filing a counter. 3.By an order dated 10.02.2020, the learned Additional District Munsif Court, Cheyyar permitted to withdrawal of the suit, but finding that there was no formal defect in the plaint, rejected the prayer for liberty to file a fresh suit on the same cause of action. Against which, the present revision has been presented.

4.Heard Ms.Deepika .G, learned counsel appearing for the petitioner and Ms.G.Lavanya, learned counsel appearing for the respondent and perused the records.

5.When the matter came up yesterday i.e., on 23.08.2023, I had put a question as to what is the reason the plaintiff wants to withdraw the suit. Ms.Deepika, represented that the reason being that there were other encroachers and consequently, the plaint and the schedule has to be amended accordingly. This Court informed her to get instructions 2/5

whether in the very same suit the plaintiff shall be willing to amend the plaint and implead the alleged encroachers and proceed with O.S.No.337 of 2003.

6.Ms.G.Lavanya did not have any objection to this course of action, consequently, the matter was listed today. 7.When the matter is listed today, Ms.Deepika represented that the plaintiff is willing to amend the plaint, the schedule and also implead the alleged encroachers and thereby bring the plaint in accordance with her plan and prayer sought for. There being no formal defect in the suit, though the order of the learned Judge is right in law, taking the overall circumstance of the case and in order to shorten the litigation, I pass the following order:- (i) The order passed in I.A.No.76 of 2020 in O.S.No.337 of 2003 is set aside. The order permitting withdrawal is consequentially set aside.

(ii) The plaintiff is granted liberty to amend the plaint to bring in averments necessary as against the proposed parties. She is permitted to implead the alleged encroachers and proceed with the suit in accordance with law.

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8.With the above directions, this civil revision petition is disposed of. No costs.

24.08.2023 Index:Yes/No Speaking order/Non-speaking order To The Additional District Munsif, Cheyyar.

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V. LAKSHMINARAYANAN,J.

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