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Madras High CourtCRP(MD)/20/2018dismissed

P. Ramasubramanian v. Kannan

2018-01-23Honourable Mrs Justice J. Nisha Banu2 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.01.2018

CORAM:

THE HONOURABLE MRS.JUSTICE J.NISHA BANU C.R.P(MD)No.20 of 2018 (PD) and C.M.P(MD)No.83 of 2018 1.P.Ramasubramanian 2.S.Prema ... Petitioners/Petitioners/Plaintiffs Vs.

1. Kannan

2. Kovilpatti Municipality, Through its Commissioner, New Road, Kovilpatti - 628 501, Tuticorin District.

...Respondents/Respondents/Defendants

PRAYER: Civil Revision Petition filed under Article 227 of Constitution of India, against the fair and decreetal order, dated 14.10.2017, passed in I.A.No.335 of 2017 in O.S.No.141 of 2011 by the learned District Munsif, Kovilpatti.

For Petitioners : Mr.N.Subramanian ******

ORDER

This civil revision petition has been filed by the petitioners challenging the order, dated 14.10.2017, dismissing the petition seeking to amend the plaint filed by the petitioners.

2. The petitioners / plaintiffs have filed the suit in O.S.No.141 of 2011 for declaration declaring that the wall shown as "BG" in the plaint plan as a common wall and for permanent injunction restraining the 1st defendant not to disturb the said wall by putting up any construction and for mandatory injunction to demolish the EF wall shown in the plaint plan and to direct the first defendant to construct the EF wall leaving 1-1/2 sq.ft. After trial, the petitioners / plaintiffs have filed I.A.No.335 of 2017 seeking to amend the first relief sought for in the plaint as if for declaration of the portion mentioned "BG FE" in the plaint plan as common lane. The Court below has dismissed the said application holding that since the petitioner / plaintiff has admitted in the plaint that the wall mentioned as BG in the plaint plan is a common wall, the relief sought for by the petitioner / plaintiff cannot be granted.

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3.Heard the learned counsel for both sides and perused the records carefully.

4. A perusal of the plaint would go to show that the petitioners / plaintiffs, in the plaint itself, had admitted that the wall mentioned as BG in the plaint is a common wall and that nearby the northern side of the said common wall, the 1st defendant constructed EF wall. But, after six years of filing of the suit, the petitioners / plaintiffs have filed the interlocutory application seeking to amend the relief of declaration to the effect that the portion between "BG FE" in the plaint plan is a common lane. The relief sought for by the petitioners / plaintiffs prima facie appears to be contradictory to the plaint averments and that will change the entire character of the suit. There is no merit in the petition. The Court below has rightly rejected the relief sought for by the petitioner / plaintiff.

5. In view of the above, this civil revision petition is dismissed at the stage of admission itself. No costs.

Consequently, the connected Miscellaneous Petition is also dismissed.

Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To

1. The District Munsif, Kovilpatti.

2. Kovilpatti Municipality, Through its Commissioner, New Road, Kovilpatti - 628 501, Tuticorin District.

+1cc to Mr.N.Subramanian, Advocate Sr.No.43355 GCG VB/JC/SAR4/16.04.2018/2P/4C C.R.P(MD)No.20 of 2018 (PD) and C.M.P(MD)No.83 of 2018 23.01.2018 https://hcservices.ecourts.gov.in/hcservices/