Saroja vs Selvakumar
2023 Latest Caselaw 1178 Mad

                                                                                      C.R.P.No.730 of 2021

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED: 31.01.2023

                                                             CORAM:

                                   THE HON'BLE Mrs.JUSTICE V.BHAVANI SUBBAROYAN

                                                     C.R.P.NO.730 of 2021
                                                     C.M.P.No.6073 of 2021

                     Saroja                                                         ...   Petitioner

                                                                Vs.

                     Selvakumar                                                     ... Respondent


                                  Civil Revision Petition filed under Article 227 of the Constitution of

                     India to set aside the fair and decreetal order dated 23.11.2020 made in

                     I.A.No.1 of 2020 in A.S.No.41 of 2019 on the file of Special Court-II,

                     Jayankondam, Ariyalur District.



                                        For Petitioner      : Mr.C.Prabakaran

                                        For Respondent      : Mr.C.Prakasam


                                                             ORDER

The Civil Revision Petition has been filed to set aside the fair and

decreetal order dated 23.11.2020 made in I.A.No.1 of 2020 in A.S.No.41 of

2019 on the file of Special Court-II, Jayankondam, Ariyalur District.

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

C.R.P.No.730 of 2021

2. The brief facts of the case in the nutshell are as follows:-

The petitioner is the plaintiff and the respondent is the defendant in

the suit in O.S.No.68 of 2011. The said suit was filed for permanent

injunction restraining the respondent and their men from entering into the

property and the written statement was filed. Further, the advocate

commissioner has filed a report on 26.02.2019. After hearing the

arguments on either side and upon considering the evidences and the

documents, the court below dismissed the said suit. Aggrieved against the

same, the petitioner has preferred an appeal in A.S.No.41 of 2019.

Pending Appeal, the petitioner preferred I.A.No.1 of 2020 seeking to

amend the plaint by including the following:-

“the relief of declaration”;

“petitioner as well as the respondent are entitled to use the suit cart

track commonly”;

“Mandatory injunction for demolition of construction put up by the

respondent.”

The said application was dismissed, as against the same, the present Civil

Revision Petition has been filed.

3. The learned counsel for the petitioner would submit that since the

suit schedule properties are being divided into half and used by the

petitioner and the respondent, the learned counsel for the petitioner, who https://www.mhc.tn.gov.in/judis

C.R.P.No.730 of 2021

appeared before the court below thought that the relief of declaration may

not be necessary, thereby omitted the said relief and sought for only

permanent injunction, now, that the original suit was dismissed on the

ground that the declaration has not been sought for, the petitioner prays to

include the said prayer, which would cause no hardship to the respondent.

After the original suit was dismissed, the respondent had completed the

construction in the pathway also, therefore, the petitioner prays to include

the prayer, i.e., “petitioner as well as the respondent are entitled to use the

suit cart track commonly” and “Mandatory injunction for demolition of

construction put up by the respondent. Therefore, sought to set aside the

impugned order.

4. Per contra, the learned counsel for the respondent / defendant

submits that only on the instructions given by the petitioner / plaintiff, the

learned counsel, who appeared before the court below, would have sought

for a prayer of permanent injunction and further, when there is a specific

denial with regard to the title of the suit schedule property, they have taken

up and the petitioner has failed to seek the relief of declaration. Further, in

the original suit, the petitioner / plaintiff has mentioned that the suit property

belongs to her, whereas, in the application, she has mentioned that the suit

schedule property belongs to both the respondent / defendant and the

petitioner / plaintiff, thereby pleaded that the said I.A., has been rightly

dismissed by the court below.

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C.R.P.No.730 of 2021

5. Heard the learned counsel on either side and perused the

documents placed on record.

6. On going through the judgment passed by the court below in

O.S.No.68 of 2011, affidavit, counter and order in I.A.No.1 of 2020, it is

clearly evident that the petitioner is aware of the fact that the original suit

seeking permanent injunction would be filed only if the petitioner alone, is

the owner of the suit schedule property that too as against the third party,

but has filed a original suit seeking permanent injunction against the

respondent, who is the joint owner of the suit schedule property, therefore,

the contention of the petitioner that the learned counsel for the petitioner,

who appeared before the court below, thought that there was no necessity

to seek a 'relief of declaration' in O.S.No.68 of 2011, in view of the fact that

the pathway belongs to both the petitioner and the respondent, therefore

petitioner has not sought for the said prayer, cannot be accepted.

7. Even for argument sake, assuming that the above said averments

of the petitioner are true, the petitioner could have resorted to another

remedy before the judgment being pronounced by the trial court. Inspite of

the fact that the Original Suit in O.S.No.68 of 2011 was filed on 07.03.2011

and the written statement was filed by the respondent on 22.02.2012 and

the Judgment was passed by the court below in O.S.No.68 of 2011 on https://www.mhc.tn.gov.in/judis

C.R.P.No.730 of 2021

16.06.2018, the petitioner had sufficient time, right from the year 2011 from

the date of filing of the suit, till the date of judgment on 16.06.2018,

however, the petitioner failed to do so and after the judgment being passed

in the said suit, the amendment petition, being sought by the petitioner, is

barred by limitation.

8. At this juncture, it is to be noted that in the original suit, the

petitioner/plaintiff contended that the suit schedule property belongs to the

petitioner alone, now, the petitioner, by way of the amendment petition is

trying to insert a new version, viz., that the suit schedule schedule property

belongs to both the petitioner and the respondent and the pathway is being

used by the both the parties, which is contrary and the said amendment

will definitely, cause prejudice to the respondent and the very nature and

character of the suit would be altered and the judgment of the trial court

would be ineffective.

9. With regard to the inclusion of the prayer, in the plaint, viz.,

“Mandatory injunction for demolition of construction put up by the

respondent.” is concerned, it is important to note that right from the date of

purchase of the suit schedule property, as vacant land, on 14.02.2011,

there was a dispute, hence, petitioner has preferred a original suit on

07.03.2011 and thereafter, the respondent / defendant has started and https://www.mhc.tn.gov.in/judis

C.R.P.No.730 of 2021

completed the construction, and hence the amendment sought in the

petition is necessary, is the contention of the petitioner. In reply, it is

contended on behalf of the respondent that inspite of the fact that the

respondent filed written statement on 22.02.2012 stating that the suit

schedule property belongs to the respondent and even before the petitioner

/ plaintiff purchased the property on 14.02.2011 and filed a suit on

07.03.2011 before the court below, the respondent, had put up a basement

and the same was disclosed by the respondent during cross examination,

but the petitioner / plaintiff failed to seek amendment within a period of

three years from the date of filing of the written statement, is the contention

of the respondent. This Court finds some force in the submission of the

learned counsel for the respondent.

10. Considering the facts and circumstances of the case and the fact

that the respondent had filed written statement on 22.02.2012 stating that

the suit schedule property belongs to the respondent and further fact that

the respondent while being cross examined by the petitioner, had stated

that the respondent had put up a basement and if the petitioner is

aggrieved, she could have sought for a prayer for mandatory injunction at

that point of time itself, and since the suit was decreed in favour of the

respondent, thereafter, he has built a terraced house and hence, this Court https://www.mhc.tn.gov.in/judis

C.R.P.No.730 of 2021

is of the view that the order passed in I.A.No.1 of 2010 is perfectly valid in

the eye of law and the same does not require any interference.

In view of the above, the present Civil Revision Petition is dismissed.

Consequently, connected miscellaneous petition is closed. No costs.

31.01.2023

Index:Yes/No Internet:Yes/No Speaking / Nonspeaking order ssd

To

The Special Court-II, Jayankondam,

Ariyalur District.

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

C.R.P.No.730 of 2021

V.BHAVANI SUBBAROYAN J.

ssd

C.R.P.NO.730 of 2021 C.M.P.No.6073 of 2021

31.01.2023

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

C.R.P.No.730 of 2021

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