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1982 Supreme(AP) 420
Andhra Pradesh High Court
Judges : V.RAMASWAMI
Ramgopal Kalantri - Appellant
Versus
G.Ganand - Respondent
Decided On : 11-01-82
A plaintiff can amend his plaint to plead the right of easement, even at the stage of the second appeal, if the facts stated in the plaint remain uncontroverted and so are deemed to have been admitted, and if the defendant will not suffer any prejudice if the amendment is allowed.
Headnote:
RIGHT OF EASEMENT - AMENDMENT OF PLAINT - DELAY IN FILING - PREJUDICE TO OPPONENT - DISCRETION OF COURT - SECOND APPEAL - POWER TO ALLOW AMENDMENT - CONDITIONS FOR ALLOWING AMENDMENT - COSTS.
Fact of the Case:
The plaintiff filed a suit for a mandatory injunction directing the defendant to remove the constructions made by him blocking the gate marked AB and the constructions made on the compound wall. The trial Court decreed the suit, but the lower appellate Court allowed the appeal and dismissed the suit. The plaintiff filed a second appeal.
Finding of the Court:
The court held that the plaintiff had a right of way through the defendant's property and that the defendant had no right to block the gate marked AB. The court also held that the plaintiff could amend his plaint to plead the right of easement, even at the stage of the second appeal, since the facts stated in the plaint remained uncontroverted and so were deemed to have been admitted. The court further held that the defendant would not suffer any prejudice if the amendment was allowed, since the facts stated in the plaint remained uncontroverted and so were deemed to have been admitted.
Issues: 1. Whether the plaintiff had a right of way through the defendant's property? 2. Whether the defendant had a right to block the gate marked AB? 3. Whether the plaintiff could amend his plaint to plead the right of easement, even at the stage of the second appeal?
Ratio Decidendi: 1. The court held that the plaintiff had a right of way through the defendant's property because the gate marked AB had been in existence prior to 1956 and the plaintiff had been using it as an ingress and egress from his house into the road on the southern side. 2. The court held that the defendant had no right to block the gate marked AB because he had not obtained any permission from the Municipal corporation to do so. 3. The court held that the plaintiff could amend his plaint to plead the right of easement, even at the stage of the second appeal, because the facts stated in the plaint remained uncontroverted and so were deemed to have been admitted. The court also held that the defendant would not suffer any prejudice if the amendment was allowed.
Final Decision: The court allowed the second appeal and set aside the decree of the lower appellate Court. The court also set aside the decree of the trial Court and directed the trial Court to frame an appropriate issue on the right of easement. The parties were at liberty to adduce evidence afresh both oral and documentary and the suit was to be disposed of according to law.
( 1 ) THE plaintiff is the appellant. He filed the suit in the trial Court initially for permanent injunction restraining the defendant from blocking the gate marked AB on the southern side of the plaintiffs house and later on, amendment sought for a mandatory injunction directing the defendant to remove the constructions made by him blocking the gate marked AB and the constructions made on the compound wall. The trial Court decreed the suit issuing mandatory injunction directing the defendant to remove construction blocking the gate marked AB and to remove in front of the gate and across the compound wall of the plaintiffs premises running east to west of the H. No 1-7-192 situated at Bakaram. Hyderabad within a period of three months from the date of this decree and granted perpetual injunction restraining the defendant his agents and all other persons claiming through him from blocking the gate marked Ab and from making any construction in front of the gate and across the compound wall running from east to west on the plaintiffs premises referred to above. Challenging that decree, the respondent went in appeal. The lower appellate Court allowed the appeal, and dismissed the suit. As against the dismissal of the suit, this second appeal has been filed.
( 2 ) MOST of the material facts not in dispute leading to the filing of the suit are as follows:- the plaintiff is the absolute owner of the premises bearing No. 1-7-192, situated at Bakaram hyderabad by virtue of a registered sale deed dated 17-9-1955. There exists a gate on the southern side of the compound wall marked Ab in the plaint plan. It opens into the road beyond the open space. It has been in existence even long prior of 1956. The plaintiff has been using this gate as ingress and egress from his house into the road situated on the southern side as usual passage. But the defendant in the first week of july 1974, started making construction of a wall blocking the gate and thereby obstructing his right of passage of ingress and egress from his house into the road on the southern side. According to the plaintiff these actions of the defendant are unwarranted, unauthorised and without any manner of right whatsoever though he informed of the same to the Municipal corporation by a complaint. No action was taken by the Municipal corporation preventing the defendant from making construction blocking the existing gate. The defendant has no manner of right or authority to block the said passage and the gate which was in existence long prior to 1956 In para 5 of the plaint , in the cause of action portion he had specifically stated that" the cause of action arose on 1-12-1974 when the defendant started construction blocking the gate and thereby preventing the right of ingress and egress to the plaintiff". As stated earlier in the first instance he filed the suit for a mere perpetual injunction but subsequently when construction was completed in the interregnum he filed the application for amendment of the plaint seeking for relief of mandatory injunction and that permission was granted.
( 3 ) IN the written statement filed by the respondent/defendant the facts that the gate is in existence prior to 1956 and that the appellant/plaintiff has been using this gate as an ingress and egress from his house into the road existing on the southern side and that the gate is in existence at the AB place of the plaint plan on the southern side are not disputed. It is also stated so in the course of the arguments in this appeal. It is also not disputed that the defendant constructed the wall in the interregnum and that it completely blocks the AB gate; thereby the right of ingress and egress of the appellant/plaintiff from that gate into the southern road from the house of the plaintiff is completely obstructed and closed. The material contention in the written statement filed by the defendant is that the plaintiff has his gate on the eastern side opening in 10 feet line. Th
