L.Shanthi Devi vs A.Selvakumar
2021 Latest Caselaw 24125 Mad

                                                                      C.R.P.(PD).No.864 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 08.12.2021

                                                      CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                             C.R.P.(PD)No.864 of 2016
                                              C.M.P.No.4798 of 2016

                     L.Shanthi Devi                                               .. Petitioner

                                                          Vs.

                     1.A.Selvakumar
                     2.K.Perumal
                     3.S.Selvaraj
                     4.Gandhimathi
                     5.R.Ramaraj
                     6.Kamal Basha
                     7.Amaravathy
                     8.I.Vijayakumar                                            .. Respondents

                     Prayer: Civil Revision Petition filed under Article 227 of the

                     Constitution of India, against the fair and decreetal order dated

                     09.12.2015 made in I.A.No.104 of 2015 in O.S.No.106 of 2005 on the

                     file of the II Additional Sub Court, Salem.


                                         For Petitioner    : Mr.R.Nalliyappan



                     1/8

https://www.mhc.tn.gov.in/judis
                                                                             C.R.P.(PD).No.864 of 2016


                                                           ORDER

(The matter is heard through 'video conferencing/hybrid mode')

The Civil Revision Petition is filed against the fair and decreetal

order dated 09.12.2015 made in I.A.No.104 of 2015 in O.S.No.106 of

2005 on the file of the II Additional Sub Court, Salem.

2.The petitioner is 7th defendant in O.S.No.106 of 2005 on the file

of the II Additional Sub Court, Salem. The respondents 1 and 2 along

with one K.Arthanari/1st plaintiff filed suit for declaration and for a

direction for possession of encroached portion by the petitioner and other

defendants. The respondents 1 and 2 along with the 1 st plaintiff filed

I.A.No.104 of 2015 to amend the plaint to correct the measurements in

the schedule with regard to encroachment by the petitioner and other

defendants. According to the respondents 1 and 2 and 1st plaintiff, at the

time of filing of the suit, only rough measurements were given in the

plaint. In the suit, an Advocate Commissioner was appointed in

I.A.No.473 of 2011 to find out the extent illegally occupied and

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

construction put up by the petitioner and other defendants. The Advocate

Commissioner filed report giving the extent of encroachment made by

the petitioner and other defendants. The petitioner has put up illegal

construction in the suit property after he purchased the adjacent property

from the 3rd defendant and prayed to amend the plaint to include the

relief of mandatory injunction to remove the illegal construction put up

by the petitioner. The petitioner filed counter affidavit and denied all the

averments and submitted that by amendment, the respondents 1 and 2 are

introducing new case and the relief of mandatory injunction now sought

for by way of an amendment is barred by limitation. The Advocate

Commissioner cannot be appointed for collection of evidence and the

proposed amendment based on the Commissioner's report is illegal and

prayed for dismissal of the application. Pending application, the 1st

plaintiff viz., K.Arthanari died. The learned Judge, considering the

averments in the affidavit, counter affidavit and nature of relief, allowed

the application.

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

3.Against the said order dated 09.12.2015 made in I.A.No.104 of

2015 in O.S.No.106 of 2005, the petitioner has come out with the present

Civil Revision Petition.

4.Heard the learned counsel appearing for the petitioner and

perused the materials available on record.

5.From the materials on record, it is seen that the respondents 1

and 2 and the deceased K.Arthanari filed suit for declaration and for a

direction to the petitioner and other defendants to hand over possession

of encroached portion. In the suit, Advocate Commissioner was

appointed in I.A.No.473 of 2011. He inspected the suit property and filed

report with regard to the details of extent of measurement of

encroachment by the petitioner and others. In the report of the Advocate

Commissioner, he also stated the extent of construction put up by the

petitioner. The respondents 1 and 2 filed present application to amend the

plaint to give correct extent of encroachment made by the petitioner and

other defendants and construction put up by the petitioner. The

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

respondents 1 and 2 also sought for additional prayer to include

mandatory injunction, directing the petitioner to remove the construction

put up by her and hand over the possession to them. The learned Judge,

considering the additional issues framed on 06.07.2012, that “whether

the plaintiff is entitled for recovery of possession from the 7th defendant

(petitioner)”, held that only on bringing forth the exact extent over which

the possession is sought for will result in complete adjudication of the

disputes between both parties. Without the proposed amendment, the

process of bringing forth the actual extent sought for under the recovery

of possession will not pave way for complete adjudication of the

disputes. The contention of the petitioner that relief of mandatory

injunction to remove the construction is barred by limitation can be

decided at the time of trial. As far as the contention of the learned

counsel appearing for the petitioner that the Advocate Commissioner

cannot be appointed to collect the evidence and based on the report of the

Advocate Commissioner, amendment sought for is illegal is concerned,

the learned Judge has rightly held that the petitioner cannot raise such an

issue in the present application. The learned Judge has considered the

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

entire materials and has given reason for allowing the application that,

for complete adjudication, the amendment sought for is necessary and

relied on the judgment of the Hon'ble Apex Court reported in 2009 (2)

SCC 409 [Vidyabai and others Vs. Padmalatha and another]. The

learned Judge has given opportunity to the petitioner to file additional

written statement and allowed the application by compensating the

petitioner with a cost of Rs.1,500/- for the delay in filing the petition.

There is no error or illegality in the order of the learned Judge warranting

interference by this Court.

For the above reason, this Civil Revision Petition is dismissed. No

costs. Consequently, connected Miscellaneous Petition is closed.

08.12.2021 Index :: Yes/No gsa

To The II Additional Subordinate Judge, Salem.

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

https://www.mhc.tn.gov.in/judis C.R.P.(PD).No.864 of 2016

V.M.VELUMANI, J.

gsa

C.R.P.(PD)No.864 of 2016

08.12.2021

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