Madras High Court
Moorthy vs Panchavarnam on 22 December, 2021
C.R.P.(NPD) (MD) No.2315 of 2012
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(PD) (MD) No.2315 of 2012
and
M.P.(MD) No.1 of 2012
1.Moorthy
2.Muthupandieswari .. Petitioners/Respondents/
Respondents/Defendants
-vs-
Panchavarnam .. Respondent/Petitioner/
Petitioner/Plaintiff
Prayer :- Petition filed under Section 115 Civil Procedure Code to set
aside the fair and decreetal order dated 14.08.2012 in I.A.No.113 of 2012
in A.S.No.52 of 2011 on the file of Sub Judge, Paramakudi against the
judgment and decree dated 29.04.2011 in O.S.No.42 of 2009.
For Petitioners : Mr.S.Krishna
For Respondent : Mr.K.C.Ramalingam
******
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C.R.P.(NPD) (MD) No.2315 of 2012
ORDER
The defendants, aggrieved by the order dated 14.08.2012 passed
by the learned Sub Judge, Paramakudi, in I.A.No.113 of 2012 in A.S.No.
52 of 2011 permitting the plaintiff to amend the plaint, are before this
Court in this revision.
2.The facts in brief are as follows:-
2.1.The respondent/plaintiff had filed a suit in O.S.No.42 of 2009
on the file of the learned District Munsif cum Judicial Magistrate,
Kamudhi, for a declaration and for a mandatory injunction directing the
defendants to remove the encroachment and for recovery of possession.
The suit schedule has been described as follows in the plaint:-
“brhj;J tpguk;
,uhkehjg[uk; khtl;lk;. fKjp tl;lk;/
mgpuhkk; efh;. g[y vz; 264-2y; g["i
; r 0/14/5
Vf;fh; brz;l; 0/36y; eLg;g[wk; tlgf;fk; fpHnky;
18mo bjd;tly; fPH;gf;fk; 62mo nky;gf;fk; 58mo
mst[s;sJk; fKjp ghh;j;jpgD}h; beL";rhiyf;Fk;
(bjw;F) m';Fr;rhkpj;njth; kidaplkhf ,Ue;J
jw;nghJ gpujpthjpapd; kidaplj;Jf;Fk; (fpHf;F)
m';Fr;rhkpj;njth; kidaplj;Jf;Fk; (tlf;F)
rz;Kfj;njth; kidf;Fk;
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C.R.P.(NPD) (MD) No.2315 of 2012
(nkw;F) ,jw;Fw;gl;lJkhd thjpapd; fpiua
kidahd gpuhJ khjphp tiuglj;jpy; ABCD apy;
1/ fPH;gf;fk; gpuhJ khjphp tiuglj;jpy; I B C J vd
fhl;lg;gl;Ls;s fpHnky; 3mo bjd;tly; 62mo
mike;Js;sJ jhth 1tJ byf;fk;.
2/ bjd; nkw;fpy; gpuhJ khjphp tiuglj;jpy; E F G
H vd;W fhl;lg;gl;Ls;s fpHnky; tlgf;fk; 4mo.
bjd;gf;fk; 2mo. bjd;tly; nky; gf;fk; 14mo.
fPH;gf;fk; 15mo mike;Js;sJk; jhth 2tJ
byf;fk;”
A rough sketch was also attached thereto.
3.After contest, the suit was dismissed on 29.04.2011. The learned
District Munsif cum Judicial Magistrate, Kamudhi, who has passed the
judgment and decree in O.S.No.42 of 2009 had observed that the
defendants had put up the construction in the year 2004 itself and the
plaintiff, who resides in the very same place had not raised any objection
for nearly five years and thereafter, has come forward with the above
suit. The learned Judge has also observed that the defendants had
obtained the approval of the Abhiramam Town Panchayat on 14.08.2003
to put up a compound wall and in the year 2003, the compound wall was
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C.R.P.(NPD) (MD) No.2315 of 2012
put up in the portion of S.No.264/2B1. The plaintiff had challenged this
judgment and decree by filing A.S.No.52 of 2011 on the file of the Sub
Court, Paramakudi. Pending the appeal, the plaintiff has come forward
with an application to amend the plaint. The plaintiff sought to amend
the Court fees and to introduce a new paragraph 2A containing the
following details:-
“gpuhJ gf;fk; 6y; 2 tJ ghuht[f;F fPH; 2v
vd;W Fwpg;gpl;L fPH;fz;lthW nrh;f;fg;gl ntz;Lk;/
gpuhJ tiuglj;jpy; fz;Ls;sgof;F jhth brhj;jpy;
gpujpthjpfs; Mf;fpukpj;J fl;olk; fl;oa[s;s
gFjpfshd IBCJ f;F cl;gl;l gFjpahd thjpapd;
brhj;jpy; 2k; gpujpthjp Mf;fpukpg;g[ bra;J IJ
vd;gJ fhk;gt[z;l; Rth; EFGH d; thjpapd; brhj;jpy;
1k; gpujpthjp Mf;fpukpg;g[ bra;j U:kpd; (Xl;L
brl;)d; xU gFjp “K” vd;gJ thjpapd; ,lj;jpy;
neh; nkny 2k; gpujpthjp tPl;od; rd;c&L
Mf;fpukpj;Js;sJ/ “L” vd;gJ thjpapd; ,lj;jpy;
2k; gpujpthjp Mf;fpukpj;J bra;J fl;oa brg;of;
nl';fpd; xUgFjp “M” vd;gJ 2k; gpujpthjp
Mf;fpukpj;J fl;oa filapd; gFjp ,tw;wpid
gpujpthjpfis ,of;fr;brhy;ypa[k; jtwpdhy;
ePjpkd;w mYtyh;fs; K:yk; thjp nkw;go
Mf;fpukpg;g[fis mfw;w typa[Wj;Jf; fl;lis
ghpfhuk; nfhhpa[k”
;
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C.R.P.(NPD) (MD) No.2315 of 2012
4.The plaintiff/respondent herein has stated that since he has
already pleaded about the encroachment and the nature of encroachment
made by the defendants/petitioners herein in the suit property, the present
amendment would in no way of prejudice the defendants, nor introduce a
new case.
5.The defendants had resisted the above application stating that the
amendment is introduced only to get over the lacunae pointed out by the
learned District Munsif cum Judicial Magistrate, Kamudhi, in his
judgment that the pleading lack clarity. That apart, the plaintiff in his
pleading has himself admitted that the defendants have encroached and
constructed in the suit property as early as on 01.10.2007 and therefore,
the suit filed is beyond limitation. The amendment to the plaint would
only result in the appeal being delayed. That apart, the affidavit filed in
support of the application is totally bereft of any details. Therefore, they
sought for dismissal of the above application. The defendants would
further contend that these points had already been raised in their written
statement itself.
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C.R.P.(NPD) (MD) No.2315 of 2012
6.The learned Subordinate Judge, Paramakudi, by order dated
14.08.2012, allowed the application on the ground that the issue of
limitation has to be considered only in the main appeal and not in the
application for amendment. The learned Judge had further observed that
the application cannot be dismissed on the ground of limitation. The
learned Judge had also stated that neither the nature of the suit, nor the
cause of action would change, if the amendment is allowed. It is
challenging this order, the defendants are before this Court.
7.Heard the learned counsel on both sides and perused the records.
8.The plaintiff had filed the suit for the reliefs of declaration,
permanent injunction, mandatory injunction to remove the construction
and for recovery of possession. In the plaint, the plaintiff has admitted
that the defendants have encroached into the property and also that the
2nd defendant had put up a compound wall in the suit I item of property.
Even in the judgment of the learned District Munsif cum Judicial
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C.R.P.(NPD) (MD) No.2315 of 2012
Magistrate, Kamudhi, the learned Judge had observed that the
encroachment had been made in the year 2004 itself and no steps had
been taken by the plaintiff to file the suit at the earliest. The Advocate
Commissioner's report in O.S.No.22 of 2003 and the description of
property of the suit Item Nos.I and II differed. The Commissioner's
report does not indicate any encroachments in the I item of property, but
has opined that there is an encroachment in the II item of property on the
Eastern side measuring 7½ feet on the North and 5½ feet on the South.
However, this description does not tally with the description given in the
II item of suit property. Therefore, the present amendment petition seeks
to set right these lacunae and the plaintiff cannot be permitted to do so.
The learned Sub Judge, Paramakudi, has allowed the application only on
the ground that the issue of limitation can be gone into only in the
appeal. However, prima facie, the question of limitation has already
been raised in the suit and upheld. Therefore, this Court is of the opinion
that the reasoning of the learned Subordinate Judge, Paramakudi is
without basis. Therefore, the order dated 14.08.2012 passed in I.A.No.
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C.R.P.(NPD) (MD) No.2315 of 2012
9.In the result, this Civil Revision Petition is allowed. No costs.
Consequently, connected miscellaneous petition is closed.
22.12.2021
Index : Yes/No
Speaking/Non-Speaking Order
abr
Note:-
In view of the present lock down owing
to COVID-19 pandemic, a web copy of
the order may be utilized for official
purposes, but, ensuring that the copy of
the order that is presented is the correct
copy, shall be the responsibility of the
Advocate / litigant concerned.
To
The Sub Court, Paramakudi.
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C.R.P.(NPD) (MD) No.2315 of 2012
P.T.ASHA, J.
abr
C.R.P.(PD) (MD) No.2315 of 2012
Dated: 22.12.2021
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