Partly allowed

President Jama Masijd Committee v. Mr. Durgam Vittal

Telangana HC18 Jan 2011CRP/856/2010

Case brief

AI extract

What is this about?

High Court of Andhra Pradesh disposed of three civil revision petitions arising from operative orders regarding a suit involving permanent injunction and commissioner's report. The Court set aside orders refusing objections to the commissioner's report and allowing unwarranted amendments for interim mandatory injunction, while dismissing revision against amendment of plaint for mandatory injunctio

What did the court decide?

C.R.P.97 of 2010 dismissed subject to court fee direction; C.R.P.28 of 2010 allowed and impugned order set aside; C.R.P.856 of 2010 disposed setting aside dismissal of objections to commissioner's rep

President Jama Masijd Committee Vs Mr. Durgam Vittal — Partition | Telangana HC (2011)

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IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

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TUESDAY, THE EIGHTEENTH DAY OF JANUARY TWO THOUSAND AND ELEVEN

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PRESENT

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THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY

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CIVIL REVISION PETITION NOS.97, 28 AND 856 OF 2010

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Between in C.R.P.No.97 of 2010:

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The President Jamia Masjid Committee and another

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PETITIONERS

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AND

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Mr.Durgum Vittal and others. …RESPONDENTS

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Between in C.R.P.No.28 of 2010:

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The President Jamia Masjid Committee and another

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… PETITIONERS

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AND

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Mr.Durgum Vittal and others. …RESPONDENTS

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Between in C.R.P.No.856 of 2010:

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The President Jamia Masjid Committee and another

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PETITIONERS

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AND

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Mr.Durgum Vittal and others. …RESPONDENTS

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THE HON’BLE SRI JUSTICE G.V. SEETHAPATHY

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CIVIL REVISION PETITION NOS.97, 28 AND 856 OF 2010

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COMMON ORDER:

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The Civil Revision Petition No.97 of 2010 is directed against the order, dated 17.09.2009, in I.A.No.134 of 2008 in O.S.No.36 of 2007, wherein the said application filed by the plaintiff/first respondent herein for amendment of the plaint under Order VI Rule 17 C.P.C., was allowed.

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The Civil Revision Petition No.28 of 2010 is directed against the order, dated 17.09.2009 in I.A.No.135 of 2008 in I.A.No.142 of 2007 in O.S.No.36 of 2007, wherein the said application filed by the plaintiff/first respondent herein for amendment of the petition under Order VI Rule 17 C.P.C., was allowed.

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The Civil Revision Petition No.856 of 2010 is directed against the order, dated 17.09.2009 in I.A.No.157 of 2007 in O.S.No.36 of 2007, wherein the application filed by the petitioners/D.4 and D.5 herein for objections to the commissioner’s report, was dismissed and the commissioner’s report was accepted.

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2. Heard the learned counsel for the petitioner and the first respondent in all the three Civil Revision Petitions. As these three Civil Revision Petitions arise out of the same suit and between the same parties, they are heard together and disposed of by this common order.

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3. The petitioners in three Civil Revision Petitions are D.4 and D.5 in the suit. Respondent No.1 herein filed the suit initially for permanent injunction in respect of the plaint schedule property. He filed

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I.A.No.142 of 2007 for temporary injunction. Pending disposal of the suit, I.A.No.157 of 2007 was filed for appointment of an advocate commissioner. The petitioners / D.4 and D.5 opposed the said applications. The trial Court after hearing both sides, appointed the advocate commissioner in I.A.No.157 of 2007, for making the local inspection and also to measure the disputed property by taking necessary measurements and to note down the typographical features. The petitioners / D.4 and D.5 assailed the said order by filing C.R.P.No.5443 of 2007, and the same was dismissed.

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4. Respondent No.1/plaintiff alleges that while C.R.P.No.5443 of 2007 was pending, the petitioners /D.4 and D.5 have effected some alterations to the suit property illegally by fixing the door in the eastern side wall and also laid the drainage pipe line and constructed gutter. Hence, the said illegal constructions are liable to be demolished. He, therefore, filed I.A.No.134 of 2008 seeking amendment of the plaint by way of adding additional relief of mandatory injunction. He also filed I.A.No.135 of 2008 seeking the similar amendment in I.A.No.142 of 2007 praying for interim mandatory injunction also. The petitioners/D.4 and D.5 herein opposed the said applications by filing the counters. The trial Court by impugned order, allowed both the I.As. As rightly observed by the trial Court, the questions whether or not the petitioners / D.4 and D.5 made any illegal constructions during the pendency of C.R.P.No.5443 of 2007, and the said constructions are illegal and are liable to be demolished by way mandatory injunction, are matters to be considered on evidence and during the course of trial.

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5. Learned counsel for the petitioner would contend that the proposed amendment would change the cause of action and also the

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nature of the suit.

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6. It is to be noted that the plaintiff is seeking amendment of plaint by seeking additional relief of mandatory injunction on the ground that the cause of action for seeking such relief arose subsequent to filing of the suit. The Court is certainly entitled to take subsequent events into consideration and mould the relief and grant the same to render effective and substantial justice between the parties.

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7. According to the plaintiff, subsequent to filing of the suit, the defendants have effected certain alterations to the disputed property. The plaintiff is certainly entitled to seek necessary relief in that regard based on the cause of action that has arisen subsequent to filing of the suit. Initially, the plaintiff sought for permanent injunction claiming that he was in possession. By way of proposed amendment, he is seeking additional relief of mandatory injunction in respect of certain structures and constructions, which according to the plaintiff are illegal, they having been effected subsequent to filing of the suit. The plaintiff is certainly entitled to claim the said relief of mandatory injunction. The question whether or not the plaintiff is entitled for the said relief is a different aspect altogether and the same has to be decided after necessary evidence adduced in the course of trial. The proposed amendment seeking additional relief of mandatory injunction does not in any way change the cause of action or alter the nature, nor does it cause any prejudice to the defendants. The plaintiff shall however, value the said additional relief of mandatory injunction separately and pay separate Court fee thereon as the said relief is distinct and separate, but not consequential to the original relief of permanent injunction. In the circumstances, it is held that subject to the above direction, regarding the payment of separate Court fee, the impugned

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order allowing the petition I.A.No.134 of 2008 for amendment of plaint does not call for any interference by this Court.

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8. Regarding the proposed amendment to I.A.No.142 of 2007, it is held that granting of any interim mandatory injunction cannot be a consequential relief for grant of interim temporary injunction and both the reliefs are distinct and separate and parameters for grant of said reliefs are also distinct and separate. Amendment of the petition I.A.No.142 of 2007 by way of seeking additional relief of temporary mandatory injunction is untenable. The said relief of interim mandatory injunction can be sought by way of separate application by making out necessary and justifiable grounds for grant of the same. The proposed amendment of I.A.No.142 of 2007, which was initially filed for temporary injunction is therefore, unwarranted and hence, the impugned order allowing I.A.No.142 of 2007 permitting the said amendment is held unsustainable and the same is accordingly set aside.

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9. Regarding I.A.No.157 of 2007, the trial Court has rejected the objections filed by the petitioners / D.4 and D.5 to the commissioner’s report and accepted the said report. I.A.No.157 of 2007 was filed for appointment of an advocate commissioner to make local inspection and to note down the typographical features and to take the necessary measurements and file the report answering the work memo furnished by the parties. The Commissioner executed the warrant and filed the report. The petitioners / D.4 and D.5 filed the objections to the said report, inter alia stating that the commissioner failed to note the exact measurements and also traveled beyond the directions given in the warrant and did not consider the work memos. Whether or not the objections filed by the petitioners / D.4 and D.5 to the commissioner’s

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report are tenable is a matter to be considered during the course of the trial. It is always open to the petitioners / D.4 and D.5 to establish with reference to other evidence available on record that the objections raised by them are valid and tenable. It is also open to the petitioners / D.4 and D.5 to cross-examine the advocate commissioner with regard to the objections filed by them to his report. The trial Court committed error in dismissing the objections at this stage, which would result in depriving the petitioners / D.4 and D.5 to demonstrate the validity of their objections with reference to other evidence at the time of trial. The trial Court ought to have taken the objections of the petitioners / D.4 and D.5 on record along with commissioner’s report for their appreciation at a later stage during the course of the trial along with other evidence. The impugned order to the extent of dismissing the objections filed by the petitioners /D.4 and D.5 to the commissioner’s report, is therefore, held unsustainable and is accordingly set aside. The objections filed by the petitioners / D.4 and D.5 are directed to be taken on record along with the commissioner’s report to be considered during the course of the trial.

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10. In the result, Civil Revision Petition No.97 of 2010 is dismissed subject to the directions regarding payment of Court fee. Civil Revision Petition No.28 of 2010 is allowed and the impugned order is set aside. Civil Revision Petition No.856 of 2010 is disposed of as stated above. There shall be no order as to costs.

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_______________________ G.V. SEETHAPATHY, J

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JANUARY 18, 2011. YVL

President Jama Masijd Committee v. Mr. Durgam Vittal

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President Jama Masijd Committee v. Mr. Durgam Vittal

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