Amendments for injunction relief should not be disallowed solely based on delay if they are material in determining justice.

J U D G M E N T

The petitioner is the plaintiff in O.S.No.157 of 2011 on the files of the Munsiff Court, Payyannur filed for permanent prohibitory injunction. The petitioner filed Ι.Α. Νο.1773 of 2015 under Order 6 Rule 17 of the Code of Civil Procedure, 1908 for amendment of the plaint by incorporating the relief for mandatory injunction and amendment of the plaint schedule.

2. According to the petitioner, the respondent/defendant made attempts to trespass into the plaint schedule property and to put up new boundaries across the property. The suit is filed for permanent prohibitory injunction restraining the defendant and his men from trespassing into the plaint schedule property, forming any boundaries or committing any mischief therein or in any way interfering with the peaceful possession of the plaintiff over the plaint schedule property. The suit was filed on 04.10.2011 and Ext.P1 is the copy of the plaint. The Munsiff Court granted an order of temporary injunction restraining the defendant and his men from trespassing into the plaint schedule property or creating any boundaries across the property. The respondent entered appearance and filed Ext.P2 written statement disputing the plaintiff’s title and possession over the property. The Advocate Commission deputed by the court filed report and plan on 17.08.2015. According to the petitioner, after the filing of the suit and before the inspection of the property by the Commissioner, the defendant placed a row of laterite stones across the suit property, which is shown as BE line in the commission report and plan. The petitioner filed Ext.P6 application for amendment of the plaint on 17.09.2015 to incorporate an additional relief of mandatory injunction directing the defendant to remove the laterite stones and to amend the plaint schedule by incorporating the disputed plot marked by the Commissioner as B, C, D and E as separate schedule.

3. A counter affidavit was filed on behalf of the respondent/defendant stating that the relief of mandatory injunction with respect to the removal of boundary in the BE line is barred by limitation and that the boundary was in existence much before the institution of the suit.

4. The learned Munsiff, by Ext.P8 order, found that the cause of action for mandatory injunction arose in between 04.10.2011 and 08.10.2011 and the proposed relief is barred as perArticle 137of theLimitation Act, 1963. However, the proposed amendment with respect to the amendment of the schedule in the plaint was allowed. Challenging Ext.P8 order to the extent aggrieved, this original petition is filed.

5. The suit was included in the list for trial on 12.11.2015.

This Court on 09.11.2015, stayed further proceedings in the suit.

6. It is contended that placing of the laterite stones was in violation of the temporary injunction granted by the learned Munsiff and therefore, a continuing wrong and well within the period of limitation. It is also contended that the prayer for removal of the laterite stones by way of mandatory injunction is highly essential for the purpose of determining the real controversy in the suit. It is further contended that, since the plea of limitation is a disputed one, the question as to whether the amendment sought is barred by limitation ought to have been made the subject matter of the issue by the learned Munsiff after allowing the amendment prayed for. It is also contended that by allowing the amendment, no prejudice would be caused to the respondent.

7. Heard Sri.Mahesh V. Ramakrishnan, the learned counsel for the petitioner and Sri. Athul Sohan, the learned counsel for the respondent.

8. The suit is filed for permanent prohibitory injunction restraining the defendant and his men from trespassing into the plaint schedule property, forming any boundar