IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.09.2020 CORAM:

THE HON'BLE MR.JUSTICE P.VELMURUGAN C.R.P.(PD).No.2474 of 2013 and M.P.No.1 of 2013 ----

1. C.Ramasamy Gounder

2. R.Duraisamy 3. R.Mahendran

4. R.Surendran .. Petitioners/Plaintiffs ..Vs..

1. K.Shanmugasundaram

2. C.Kuttiya Gounder

3. K.Kettimuthu

4. R.Sivasubramaniam ..Respondents/Defendants/

Defendants Prayer: Civil Revision Petition filed under Article 227 of Constitution of India to set aside the order passed in I.A.No.1180 of 2012 in O.S.No.693 of 2009 on the file of Principal District Munsif, Erode dated 08.04.2013.

For Petitioners : Mr.A.Sundaravadhanan For Respondents : Mr.Manokaran (R1)

Ms.Meena for Mr.M.Guruprasad (R2 and R3)

O R D E R

This Civil Revision Petition has been filed to set aside the order passed in I.A.No.1180 of 2012 in O.S.No.693 of 2009 on the file of Principal District Munsif, Erode dated 08.04.2013.

2. The petitioners are the Plaintiffs and the respondents are the defendants in the suit filed in O.S.No.693 of 2009, on the file of District Munsif, Erode for declaration of 'A' Schedule carttrack and for permanent and mandatory injunction. During the pendency of the suit, the petitioners filed an application in I.A.No.1180 of 2012 to amend the plaint based on the Commissioner's report and the said application was dismissed vide order dated

08.04.2013. Challenging the said order the petitioners are before this Court.

4. The learned counsel for the petitioners would submit that they filed a suit in O.S.No.693 of 2009 for declaration, permanent and mandatory injunction with regard encroachment made in the carttrack by the respondents and during the pendency of the suit, the petitioners filed an application for appointment of Advocate Commissioner and the said application was allowed and the Advocate Commissioner was also appointed and after inspecting the suit property he filed a report along with survey plan. The learned counsel for the petitioners would further submit that the petitioners wanted to amend the schedule of properties in the plaint based on the Commissioner's report and therefore filed the application for amending the plaint. He would further submit that amendment sought for will neither change the character of the suit nor introduce new cause of action and therefore the trial Court would have allowed the application filed to amend the plaint as sought for by the petitioners. Therefore, he prays to set aside the order passed by the trial Court in I.A.No.1180 of 2012.

5. The learned counsel for the first respondent would submit that the petitioners filed a suit for declaration, permanent and mandatory injunction and subsequently he filed the application for appointment of Advocate Commissioner to note down the physical features of the suit properties and the same was allowed. Thereafter, the petitioners filed application before the trial Court to amend the plaint, based on the Commssioner's report. He would further submit that the trial Court rightly dismissed the application. He would further contend that no plaint can be amended based on the Commissioner's report and the Commissioner's report is a piece of evidence and plaint averments have to be substantiated during the trial and therefore, the order passed by the trial Court is correct and same does not warrant interference.

6. Heard the learned counsel for the petitioner and the learned counsel appearing for the first respondent. The learned counsel for the second and third respondents adopted the arguments of the learned counsel for the first respondent. Perused the records.

7. Admittedly, the petitioners filed a suit in O.S.No.693 of 2009 against the respondents on the file of District Munsif, Erode and during the pendency of the suit, the petitioners filed an application in I.A.No.1180/2012 to amend the plaint as per the Commissioner report and before filing the application, the petitioners filed application for appointment of Advocate Commissioner and the same was allowed and Advocat