B. SUBHASHAN REDDY, J.

( 1 ) THIS revision petition is directed against the Order dated 21-9-1992 allowing the amendment petition of the plaintiffs in I. A. No. 2125 of 1992 in O. S. No. 117 of 1984 on the file of the Court of the Principal District Munsif, Ongole.

( 2 ) THE defendants, who opposed unsuccessfully, are the petitioners. The said suit was instituted seeking relief of permanent injunction and mandatory injunction. Plaintiffs and the defendants are the neighbours having house properties. The plaintiffs complaint is that windows and ventilators were illegally and unlawfully opened by the defendants into the property of the plaintiffs intruding their rights and as such mandatory injunction was sought for, to close the same. Preventive relief of permanent injunction was sought for restraining the defendants from laying the latrine pipe in portion marked P-2, p-3,p-4 and P-5.

( 3 ) ADVOCATE-COMMISSIONER was appointed to inspect the suit property. In the course of inspection, it was found that a channel was there constructed by the defendants. Then a petition in I. A. No. 2125 of 1992 under Order VI Rule 17 cpc was filed seeking amendment of the plaint incorporating a relief for the grant of mandatory injunction to close that channel also. It is not disputed that the channel was existing even before. Even computing the time from the date of the report of the Advocate-Commissioner, three years lapsed in the year 1987, while the petition for amendment was filed in the year 1992. The amendment petition was contested; but, it was allowed even while holding that the petition was belated and that the relief was time barred. But, the Court below, however, felt that will be considered at the time of disposal of the suit and that the delay caused can be compensated by awarding costs of Rs. 50/ -. The defendants, aggrieved by the said order, preferred this revision petition.

( 4 ) MR. M. V. S. Suresh Kumar, the learned Counsel for the petitioners, submits that the amendment petition was barred by the principles enunciated under order II Rule 2 C. P. C. He also submits that the lower Court ought not to have allowed the same even while holding that petition was belated and that relief was also time barred.

( 5 ) MR. P. Srirama Murthy, the learned Counsel for the respondents, on the other hand, submits that Order II Rule 2 C. P. C. has got no application and that the nuisance caused by the defendants by constructing a channel was a continuing one and as such, there was no limitation as it was a continuing wrong.

( 6 ) ON the premise mat the channel was existing as on the date of the institution of the suit and the plea of mandatory injunction was available as on that date, but was not sought for, it is true that it cannot be claimed later. But, such a waiver applies only when a second suit is instituted for the said relief and only second suit is barred under the provisions of Order II Rule 2 C. P. C. But, when amendment is sought for in the same suit seeking the relief which was not sought for at the time of me presentation of the suit, the principles under order II Rule 2 of C. P. C. have got no application. To avoid the disability of order II Rule 2 C. P. C. for filing the subsequent suit, in the existing suit, amendment can be sought for and as such, Order II Rule 2 C. P. C. cannot be a bar for invocation of Order VI Rule 17 C. P. C.

( 7 ) IN so far as the second submission is concerned that the application for amendment was belated and that even while holding that the relief was time barred and also application as belated, the action of the lower Court in allowing the amendment in a casual and routine manner stating that the same can be compensated by awarding costs of Rs. 50/- has got to be deprecated. A Court of law has to judge the things in accordance with law and not by whims and fancies stating something and deciding contra to it. The Court below has dearly stated that the relief sought for is time barred even computing t

Click Here to Read the rest of this document