Madras High Court
Periyathambi vs Erusa Gounder on 10 December, 2021
C.R.P.(PD).Nos.1020 to 1022 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(PD).Nos.1020 to 1022 of 2016
and
C.M.P.No.5688 of 2016
1.Periyathambi
2.Rathinammal
3.Selvan
4.Gandhi .. Petitioners
[in all cases]
Vs.
Erusa Gounder .. Respondent
[in C.R.P.(PD).Nos.1020 &
1021 of 2016]
1.Ramasamy
2.Erusa Gounder .. Respondents
[in C.R.P.(PD).No.1022 of 2016]
Common Prayer: These Civil Revision Petitions are filed under Article 227 of
the Constitution of India, against the fair and final orders dated 13.02.2015
passed in I.A.Nos.285 to 287 of 2014 in O.S.No.384 of 2008 on the file of the
I Additional District Munsif Court, Bhavani, Erode District.
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C.R.P.(PD).Nos.1020 to 1022 of 2016
In all the cases:
For Petitioner : Mr.S.Lakshmanasamy
For Respondent(s) : No appearance
COMMON ORDER
(The matter is heard through “Video Conferencing/Hybrid Mode”.)
These Civil Revision Petitions are filed against the fair and final orders
dated 13.02.2015 passed in I.A.Nos.285 to 287 of 2014 in O.S.No.384 of 2008
on the file of the I Additional District Munsif Court, Bhavani, Erode District.
2.The issues involved in all the Civil Revision Petitions are interlinked
and hence, these Civil Revision Petitions are disposed of by this common
order. The parties are referred to as per their rank in C.R.P.(PD).No.1022 of
2016, for the sake of convenience.
3.The petitioners are defendants in O.S.No.384 of 2008 on the file of the
Principal District Munsif Court, Bhavani, Erode District. The 2nd respondent,
who is the plaintiff herein filed the said suit against the petitioners for
permanent injunction restraining the petitioners from interfering with the 2nd
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C.R.P.(PD).Nos.1020 to 1022 of 2016
respondent's usage of pathway and for mandatory injunction to remove the wall
constructed by the petitioners. The petitioners filed written statement and are
contesting the suit. Trial commenced. Both the 2nd respondent and petitioners
let in their evidence and closed their side. The petitioners counsel argued the
matter and also filed written arguments. The petitioners filed additional written
statement on 31.03.2011. At that stage, the 2nd respondent filed three
applications in I.A.Nos.285 to 287 of 2014 to re-open the case, for amendment
to include the relief of declaration and to implead one Ramasamy as 5th
defendant in the said suit.
4.According to 2nd respondent, in the suit filed by him, Advocate
Commissioner was appointed on the application filed by the petitioners. The
Advocate Commissioner inspected the suit property and filed a report stating
that suit pathway of two feet situated in Survey No.507/7 belongs to petitioners
and two feet situated in Survey No.507/2 belongs to one Ramasamy, S/o.
Muthuraman @ Kuppu. The petitioners filed I.A.No.252 of 2014 to frame
additional issue that suit without relief of declaration is not maintainable. The
said I.A.No.252 of 2014 was allowed and additional issue was framed on
21.07.2014. The petitioners in the written arguments also prayed for dismissal
of the suit for not impleading the said Ramasamy, S/o. Muthurman @ Kuppu
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C.R.P.(PD).Nos.1020 to 1022 of 2016
and suit filed not seeking the relief of declaration. In view of the same, the suit
has to be re-opened for amendment of plaint to include the relief of declaration
and to implead the said Ramasamy, owner of Survey No.507/2.
5.The petitioners filed counter affidavit and denied all the averments
stated in the affidavit and submitted that in the written statement filed on
25.09.2009 itself, it has been stated that suit is not maintainable without
seeking the relief of declaration and for not impleading the said Ramasamy, the
owner of Survey No.507/2. After commencement of Trial, even during cross
examination of 2nd respondent on 07.03.2011, specific questions were put to 2nd
respondent that without seeking the relief of declaration and impleading
necessary parties, the suit is not maintainable. The Advocate Commissioner
inspected the property on 06.06.2010 and filed his report on 10.08.2010. The
2nd respondent has filed the present applications after four years and three
months of report of the Advocate Commissioner. When the suit was posted for
arguments, the petitioners argued the matter and filed written arguments on
08.10.2014. The 2nd respondent took three adjournments on 13.10.2014,
17.10.2014 and 28.10.2014. After arguments, the learned counsel appearing
for the 2nd respondent took number of adjournments for arguing on behalf of the
2nd respondent. After taking adjournments, at a belated stage, the 2nd
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C.R.P.(PD).Nos.1020 to 1022 of 2016
respondent has filed the present three applications for re-opening, for
amendment and for impleading the said Ramasamy as 5th defendant, which are
not maintainable and prayed for dismissal of all the three applications.
6.The learned Judge considering the averments in the affidavit, counter
affidavit and judgments relied on by the learned counsel appearing for 2nd
respondent, allowed all the three applications by three separate orders.
7.Against the said orders dated 13.02.2015 passed in I.A.Nos.285 to 287
of 2014, the petitioners have come out with the present Civil Revision
Petitions.
8.The learned counsel appearing for the petitioners contended that if the
orders passed by the learned Judge are allowed to stand, it will cause injustice
to the petitioners. The learned Judge failed to note that the 2nd respondent filed
three applications only when the suit was posted for further arguments of
petitioners. The petitioners have already filed written arguments. The learned
Judge failed to consider that amendment is not automatic after commencement
of Trial. The claim made by the 2nd respondent is time barred. The learned
Judge has committed an error in allowing the impleading petition without
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C.R.P.(PD).Nos.1020 to 1022 of 2016
hearing the proposed party. The reason given by the learned Judge for allowing
all the three applications are not valid and prayed for setting aside the orders of
the learned Judge and allowing the Civil Revision Petitions.
9.Though notice has been served on the respondents and their names are
printed in the cause list, there is no representation for them, either in person or
through counsel.
10.Heard the learned counsel appearing for the petitioners and perused
the entire materials on record.
11.From the materials on record, it is seen that the 2nd respondent has
filed suit for permanent and mandatory injunction against the petitioners in
respect of pathway described in schedule of the plaint. According to the 2nd
respondent, he is the exclusive owner of the suit pathway and petitioners are
preventing him to use the said pathway. The petitioners in the written statement
denied various averments made by the 2nd respondent in the plaint. In addition
to that, they have stated that suit for injunction without seeking the relief of
declaration is not maintainable. By taking such a stand, the petitioners are
denying the title of the 2nd respondent. When in a suit for injunction, the title is
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C.R.P.(PD).Nos.1020 to 1022 of 2016
denied, the plaintiff has to amend the plaint to claim the relief of declaration.
Only then the issues in the said suit can be decided properly and fully. In view
of the stand taken by the petitioners, the 2nd respondent has filed an application
to amend the plaint to include the relief of declaration. The 2nd respondent has
filed all the three applications when the suit was posted for arguments. The
learned Judge has considered the contentions of the petitioners that
applications are filed at a belated stage, allowed all the three applications on
the ground that amendment to include the relief of declaration is necessary to
completely adjudicate the issue in the suit. The learned Judge has allowed the
applications taking into consideration the rival contentions of the 2nd
respondent and petitioners with regard to ownership of pathway. The learned
Judge has given valid reason for allowing the application for amendment, even
though the same was filed at a belated stage. There is no error in the said order
of the learned Judge warranting interference by this Court.
12.Similarly a necessary party to the suit can be impleaded either as
plaintiff or defendant at any stage of the suit. As per the report of the Advocate
Commissioner, two feet width of suit pathway is situated in Survey No.507/2
belonging to one Ramasamy, S/o. Muthurman @ Kuppu. In view of the same,
the said Ramasamy is not only a proper party, but also necessary party to
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C.R.P.(PD).Nos.1020 to 1022 of 2016
decide the issue in the suit. Therefore, the learned Judge has allowed the
application for re-opening also. The learned Judge has exercised her power
conferred on her properly and allowed all the three applications by giving
cogent and valid reasons. There is no error or irregularity in the order of the
learned Judge warranting interference by this Court.
13.For the above reasons, all the Civil Revision Petitions are dismissed.
Consequently, the connected Miscellaneous Petition is closed. No costs.
10.12.2021
krk
Index : Yes / No
Internet : Yes / No
To
The learned I Additional District Munsif,
Bhavani,
Erode District.
V.M.VELUMANI, J.
krk
https://www.mhc.tn.gov.in/judis
C.R.P.(PD).Nos.1020 to 1022 of 2016
C.R.P.(PD).Nos.1020 to 1022 of 2016
10.12.2021
https://www.mhc.tn.gov.in/judis
