C.R.P.(PD).No.2474 of 2013

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

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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)

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C.R.P.(PD).No.2474 of 2013

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

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C.R.P.(PD).No.2474 of 2013

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.

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C.R.P.(PD).No.2474 of 2013

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

agains