C.R.P.No.1185 of 2020

and C.M.P.No.6385 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 24.11.2022

CORAM:

THE HONOURABLE MRS.JUSTICE R. HEMALATHA

C.R.P.No.1185 of 2020

and

C.M.P.No.6385 of 2020

Jeganathan

... Petitioner

..Vs..

Vembanna

... Respondent

PRAYER: Civil Revision Petition filed under Article 227 of the

Constitution of India against the fair and decretal orders dated 04.02.2019

in I.A.No.750 of 2016 in O.S.No.107 of 2011 on the file of the II

Additional District Munsif, Kallakurichi.

For Petitioner

: Mr.A.K.Rajaraman

For Respondent : Mr.S.Mukunth for

M/s.Sarvabhauman Associates

ORDER

The present petition has been filed challenging the orders passed

in I.A.No.750 of 2016 in O.S.No.107 of 2011 on the file of the II

Additional District Munsif, Kallakurichi.

1/7

https://www.mhc.tn.gov.in/judis

C.R.P.No.1185 of 2020

and C.M.P.No.6385 of 2020

2.For the sake of convenience, the parties are referred to as per

their ranking in the trial Court and in appropriate places, their rank in the

present petition would also be indicated.

3.The revision petitioner is the defendant in O.S.No.107 of 2011

on the file of the II Additional District Munsif, Kallakurichi. The

respondent/plaintiff filed an application under Order VI Rule 17 CPC in

I.A.No.750 of 2016 in O.S.No.107 of 2011 seeking to amend the plaint to

include the prayer for declaration of his title to the suit property and also

for recovery of possession of the same

4.The learned II Additional District Munsif, Kallakurichi,

allowed the said application vide her orders dated 24.01.2019. Originally

the suit was filed by the plaintiff for a bare injunction restraining the

defendant from interfering with his peaceful possession and enjoyment of

the suit property. In the affidavit filed in support of the petition in

I.A.No.750 of 2016 the plaintiff had contended that during the pendency

2/7

https://www.mhc.tn.gov.in/judis

C.R.P.No.1185 of 2020

and C.M.P.No.6385 of 2020

of the suit the defendant encroached upon his suit property in suit items

12 & 14 and that this was also confirmed by the Advocate Commissioner's

report and plan. He therefore, filed the petition under Order VI Rule 17

CPC to amend the prayer of the plaint and pleadings for including a

decree for declaration of his title to items 12 & 14 and also for recovery of

possession of the encroached portion.

5.The learned II Additional District Munsif, Kallakurichi,

allowed the said application by observing thus :

"Admittedly the suit is filed only for bare injunction.

According to the petitioner during the pendency of the suit

the respondent has encroached upon the suit property

through the report of the Advocate Commissioner the same

is confirmed. So amendment is sought to included the

prayer for recovery of possession. It is seen that only during

the pendency of the suit the encroachment came to

knowledge of the petitioner and to that effect Advocate

Commissioner filed his report and plan. So at the said

circumstances the court think it is just and necessary to

amend the plaint and seek the relief of recovery. Where as

the main contention of the Respondents is that the

amendment sought only on the basis of Advocate

3/7

https://www.mhc.tn.gov.in/judis

C.R.P.No.1185 of 2020

and C.M.P.No.6385 of 2020

Commissioner report and plan and that too after lapse of 3

years after filling the report which is barred by limitation.

At this juncture the court inclined to note that the

respondents can arise the defense in his additional written

statement and issues shall be framed and decided in the suit

further it is for the petition/plaintiff to establish his case