Allowed

Manikandan, v. Santha, W/O.Pushpaharan

Madras HC12 Mar 2018CRP(MD)/2129/2017

Case brief

AI extract

What is this about?

The Madurai Bench of the Madras High Court, in a revision petition under Article 226, quashed an order dismissing a suit amendment application for lack of specific description of an obstruction. The Court remitted the matter to the trial court, directing the petitioner to file an additional affidavit describing the 'B' schedule property within two weeks.

What did the court decide?

The impugned order set aside and I.A.No.137 of 2017 remitted; petitioner directed to file additional affidavit describing 'B' schedule property within two weeks.

Manikandan, Vs Santha, W/O.Pushpaharan — Property and Title | Madras HC (2018)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 12.03.2018 (Reserved on 13.02.2018)

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CORAM :

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THE HONOURABLE MRS.JUSTICE J.NISHA BANU

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CRP(PD)(MD)No.2129 of 2017 and CMP(MD)No.10563 of 2017

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1)Manikandan 2)Beaula ... Petitioners

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vs.

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Santha ... Respondent

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Petition filed under Article 227 of the Constitution of India, against the fair and decreetal order passed by the learned Principal District Munsif, Kuzhithurai, dated 20.04.2017 in I.A.No.137 of 2017 in O.S.No.43 of 2015.

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For Petitioners : Mr.N.Dilip Kumar For Respondent : Mr.C.Godwin

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ORDER

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This revision petition has been filed against the fair and decreetal order passed by the learned Principal District Munsif, Kuzhithurai, dated 20.04.2017 in I.A.No.137 of 2017 in O.S.No.43 of 2015.

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2.Learned counsel for the petitioners would submit that the revision petitioners are plaintiffs and respondent is defendant. The plaintiffs filed O.S.No.43 of 2015 on the file of the Principal District Munsif, Kuzhithurai, for declaration of easement right and permanent injunction. Pending suit, they filed the present amendment application in I.A.No.137 of 2017, contending that subsequent to the suit, the defendant has closed the pathway and therefore, it is necessary to amend the prayer in the suit by including the relief of mandatory injunction directing the defendant to remove the obstruction made in the B schedule property.

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3.Learned counsel for the respondent would submit that earlier, the petitioners filed similar application in I.A.No.295/16 and the same was dismissed with liberty to file fresh application with correct description. However, without complying with the said direction, the petitioners have filed the present amendment application without any specific description showing obstruction and therefore, it is submitted that there is no cause of action for https://hcservices.ecourts.gov.in/hcservices/ seeking the relief of mandatory injunction.

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4.Heard the learned counsel for the petitioners as well as the respondent and perused the materials available on record.

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5.Perusal of the impugned order shows that the petitioners earlier filed I.A.No.295/16 for similar relief of amendment contending that subsequent to the suit, the respondent/defendant has blocked the pathway. The said application was dismissed on 24.08.2016 with liberty to file fresh application after furnishing specific description showing the nature of amendment, its width and length as separate schedule. However, it is stated that the petitioners have filed the present application without complying with the direction given by the Court below in I.A.No.295/16 and without any particulars regarding the nature of obstruction and specific description of obstruction, and therefore, the Court below dismissed the amendment petition holding that even if the present petition for amendment is allowed, no purpose would be served and the real controversy between the parties could not be adjudicated properly.

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6.The only ground on which the Court below has rejected the said application is that no proper description mentioned in respect of the 'B' schedule property. Without proper description, as rightly stated by the Court below, the issue cannot be adjudicated and the relief sought for by the petitioner cannot be granted. I am of the considered opinion that no prejudice will be caused to the respondent, if this revision petition is allowed and the petitioner is permitted to file an additional affidavit with the proper description as directed by the learned Judge in I.A.No.295/2016. Considering the nature of the case, I am inclined to interfere with the order passed by the learned Judge.

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7.Accordingly, the impugned order passed by the learned Principal District Munsif, Kuzhithurai, dated 20.04.2017 in I.A.No.137 of 2017 in O.S.No.43 of 2015, is set aside and I.A.No.137 of 2017 is remitted to the file of the Court below. The revision petitioner is directed to file an additional affidavit with the proper description of the 'B' schedule property within a period of two weeks from the date of receipt of a copy of this order. On receipt of the additional affidavit, the Court below is directed to consider I.A.No.137 of 2017 afresh and decide the same on merits and in accordance with law. If the additional affidavit is not filed with correct description within two weeks, I.A.No.137 of 2017 shall be automatically dismissed without reference to this Court and the learned Judge shall proceed with the suit in accordance with law.

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With the above direction, this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.

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Sd/-

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Assistant Registrar (W)

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https://hcservices.ecourts.gov.in/hcservices/

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Sub Assistant Registrar

/True Copy/

The Principal District Munsif, Kuzhithurai.

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- 1 CC TO Mr.C.GODWIN, ADVOCATE IN SR No. 54406

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- 1 CC TO Mr.N.DILIP KUMAR, ADVOCATE IN SR No. 54862

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BALA

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TE/JC/SAR-1 : 11/04/2018 : 3P/4C

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order made in CRP(PD)(MD)No.2129 of 2017 and CMP(MD)No.10563 of 2017 12.03.2018

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https://hcservices.ecourts.gov.in/hcservices/

Manikandan, v. Santha, W/O.Pushpaharan

Case brief

What is this about?

What did the court decide?

Manikandan, v. Santha, W/O.Pushpaharan

Case brief

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What did the court decide?

What the court decided

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