Dismissed

Malaisamy, v. a. Paulraj

Madras HC22 Jan 2014CRP(MD)/104/2014

Case brief

AI extract

What is this about?

This revision petition challenged the trial court's allowance of a plaintiff's amendment to include steps and a shed not visible at the suit's filing. The High Court distinguished prior precedent on limitation, held the amendment legal as the encroachment date remained a triable issue, and dismissed the petition.

What did the court decide?

The civil revision petition filed against the allowance of amendment application was dismissed.

Malaisamy, Vs a. Paulraj — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.01.2014

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CORAM:

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THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN

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CRP(MD).No.104 of 2014 and M.P.(MD).No.1 of 2014 Malaisamy : Petitioner / Respondent / Defendant Vs A.Paulraj : Respondent / Petitioner / Plaintiff

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This Civil Revision Petition has been filed under Section 115 of CPC against the order passed by the learned District Munsif, Paramakudi in I.A.No.275 of 2013 in O.S.No.74 of 2011 dated 11.09.2013.

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For Petitioner : Mr.V.Srinivasan

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COMMON ORDER

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Since the issues involves in these Civil Revision Petitions are one and the same, they have been taken up together and disposed of by a common order.

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The defendant is aggrieved by the allowing of the amendment application filed by the plaintiff, has come forward with these Civil Revision Petitions.

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The suit is for declaration and for recovery of possession in respect of the first item of the suit property and declaration and mandatory injunction in respect of the second schedule of property directing the defendant to demolish and remove the construction made by the encroachment in the second schedule property. Subsequently, a written statement was filed by the defendant and thereafter, an amendment application has been filed.

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When the matter is posted for trial, the said amendment was allowed. Aggrieved by that, the defendant is before this Court. The plaintiff contended in the amendment application that at the time of filing of the suit some of the features like steps pial and tiled shed was not available. In the plaint schedule property, the same was omitted to be included. Only when the Advocate Commissioner filed a report, the above features were noted. More over, only in September,2010, the defendant encroached upon in the third schedule of property and put up structure. Only to incorporate those facts in the pleading, the amendment petition has been filed. The defendant contended before the trial Court the said structures in question were available even before filing of the suit and the proposed third item of the property is not a cause of action and barred by limitation. If the proposed amendment is allowed, the nature of the case itself would be changed and therefore, the petition has to be dismissed.

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However, the trial Court taking note of the fact that the https://hcservices.ecourts.gov.in/hcservices/ suit is for declaration and for recovery of possession with respect to item Nos.1 and 2 of the suit property and the construction has been made by the defendant in the first item of the property, allowed the amendment

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application. According to the plaintiff, the encroachment is steps pial and tiled shed. The trial Court observed that the question of construction could be decided, after completion of the trial as to whether it has been constructed in September, 2010 or it has been in existence for the past fifty years, as contended by the defendant. The limitation point taken out by the defendant was also rejected observing that the cause of action starts only from 2010.

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Though the learned counsel appearing on behalf of the defendant has very strenuously contended that after noting the Advocate Commissioner's Report only, the plaintiff contended the encroachment has been found. Whereas, the structures have been available even before filing of the suit, which is more than 50 years. Whether the structures are already present or newly constructed or old structures can be gone into by the trial Court. Moreover, assuming for a moment, if the amendment changes the cause of action and nature of the suit, it is always open to the defendant to file an additional written statement and raise the defence. The property which is sought to be included and the structures to be included forms part of the suit property. Therefore, the trial Court allowed the application to give an opportunity to the plaintiff to put forth his case by way of an amendment. Hence, there is no perversity in the findings given by the trial Court.

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The learned counsel appearing on behalf of the petitioner relies upon a judgment of this Court reported in (2012) 1 MLJ 280, Chinna Padayachi and another Vs. Dhanalakshmi and others to contend that if the amendment application is filed, after five years of the Advocate Commissioner's Report is not maintainable. However, in this case, the contention of the respondent in the Civil Revision Petition is that the construction was made only in the year September 2010, whereas, the amendment application has been filed in the year 2013. Therefore, it cannot be said that it is barred by limitation. The facts of the case is different from the judgment relied upon by the learned counsel appearing on behalf of the defendant. Hence, this petition fails and the same is dismissed.

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Considering the facts and circumstances of the case that the suit is of the year 2011, it is appropriate to the trial Court to dispose of the suit on or before 31^st August, 2014. Consequently, the connected miscellaneous petition is closed. No costs.

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Sd/-

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Assistant Registrar (A.S.)

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/True Copy/

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Sub-Assistant Registrar

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The District Munsif, Paramakudi. + 1 CC to Mr.A.Hajamohideen, Advocate in SR.No.3902

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CRP(MD).Nos.104 of 2014

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https://hcservices.ecourts.gov.in/hcservices/ gdr 30.01.2014 2p/3c

Malaisamy, v. a. Paulraj

Case brief

What is this about?

What did the court decide?

Malaisamy, v. a. Paulraj

Case brief

What is this about?

What did the court decide?

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