Madras High Court
Yesumariyan vs Robert Kennady on 22 June, 2023
C.R.P.(MD) No.806 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.06.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(MD) No.806 of 2020
& C.M.P.(MD) No.5472 of 2020
Yesumariyan ... Petitioner
Vs.
1.Robert Kennady
2.Vijayadhas
3.David Rajan
4.Vijayakumar ... Respondents
Civil Revision Petition filed under Article 227 of Constitution of
India, to set aside the fair and decreetal order passed in I.A.No.1 of 2019
in A.S.No.57 of 2014 dated 24.07.2020 on the file of the Sub Court,
Kuzhithurai.
For Petitioner : Mr.S.Meenashi Sundaram
Senior Counsel
for Mr.M.Sengu Vijay
For R1 to R3 : Mr.H.Arumugam
For R4 : No appearance
*****
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Page No. 1 of 9
C.R.P.(MD) No.806 of 2020
ORDER
This Civil Revision Petition has been filed to set aside the fair and
decreetal order dated 24.07.2020 passed by the Sub Court, Kuzhithurai in
I.A.No.1 of 2019 in A.S.No.57 of 2014.
2. By the impugned order dated 24.07.2020, the Sub Court,
Kuzhithurai has dismissed I.A.No.1 of 2019 in A.S.No.57 of 2014 filed by
the petitioner under Order 6 Rule 17 of Code of Civil Procedure, 1908, to
amend the plaint in O.S.No.467 of 2008. The operative portion of the
impugned order dated 24.07.2020 reads as under:-
9. This court has given anxious consideration to
both side submissions. The petitioner has stated that
the respondents have encroached the property pending
this appeal on 12.12.2018 and thereby he wants to
include the additional reliefs of declaration of title,
recovery of possession and also for mandatory
injunction. The suit in O.S.No.467/2008 was filed only
for bare injunction. Now at the appeal state converting
the appeal for declaration, recovery of possession
would change the nature and character of the suit and
for which once again a separate trial has to be
conducted from the beginning. Further the respondents
herein also filed a suit for declaration by denying the
title of the petitioner herein and at that time itself the
petitioner had opportunity to amend his prayer to
declaration of title. But, without doing so, the petitioner
has now at the appeal stage has filed this application
which shows the petitioner has no due diligence.
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C.R.P.(MD) No.806 of 2020
10. Further on perusing the judgment passed by
the trial court, it is seen that the trial court has held that
the petitioner has encroached the suit property and he
has no title over the suit property. While being so,
including a prayer for declaration of title now in the
Appeal stage clearly amounts to filling up the lacuna
and to set right his claim over the suit property. Further
the plaintiff has not submitted any documents to show
that the respondents have constructed compound wall
pending appeal. Moreover the petitioner in his plaint
has stated that the respondents are trying to make a
road in the suit property and hence he filed the suit for
permanent injunction. But now the petitioner has
stated that the respondents herein have constructed a
compound wall and also a illegal structure in the suit
property. The contentions are contrary in nature.
11. In the suit, Advocate/Commissioners have
already visited the suit property and filed detailed
reports and plans in the suit. The trial court has also
held that the petitioner is in encroacher in the suit
property and he had constructed some portion in the
suit property and decided the suit on merits. Now at
this stage, this amendment application cant be allowed
as there is no due diligence on the part of the petitioner
and it amounts to fill up the lacuna for the petitioner
and it will cause a great prejudice to the respondents.
Further the nature and character of the suit will also
gets changed if this application is allowed. Therefore
this application is liable to be dismissed.
3. The petitioner is the judgment debtor/unsuccessful plaintiff in
O.S.No.467 of 2008. The said suit was filed by the petitioner for a bare
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C.R.P.(MD) No.806 of 2020
injunction. On the other hand, the first to third respondents along with
their month Mariathankam filed O.S.No.479 of 2008 for a declaration and
mandatory injunction.
4. The dispute pertains to land in R.S.No.209/2 measuring an extent
of 334 sq.fts. The petitioner claims to have purchased the property on the
strength of Ex.D2 Sale Deed dated 22.09.2008 from one Francis and put
up the construction. The respondents on the other hand claim that the
property was their family property which was settled by their parents by a
Settlement Deed dated 22.03.2004.
5. The Trial Court by its common Judgment and Decree dated
25.03.2014 has dismissed O.S.No.467 of 2008 filed by the petitioner and
party allowed and partly dismissed O.S.No.479 of 2008 filed by the first
to third respondents along with their mother. In so far as the declaration of
title in the land was confined only to 1 Cent.
6. The petitioner filed an appeal in A.S.Nos.56 & 57 of 2014 which
is said to be pending as on date. At the same time, the first to third
respondents along with their mother filed A.S.No.78 of 2014. Under these
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C.R.P.(MD) No.806 of 2020
circumstances, the petitioner filed I.A.No.1 of 2019 in A.S.No.57 of 2014
to amend the plaint in O.S.No.467 of 2008.
7. A specific case of the petitioner is that unless the amendment is
allowed, the petitioner cannot establish his rights over the suit schedule
properties measuring an extent of 334 sq.fts. in R.S.No.209/2.
8. The learned counsel for the first to third respondents submits
that the impugned order is well reasoned and requires no interference. He
further submits that the first to third respondents obtained permission
from the court and put up the constructions. The petitioner had
encroached the property and attempted to trespass into the property. It is
submitted that the amendments cannot be allowed as the amendment will
change the nature of the suit.
9. The learned counsel for the first to third respondents has drawn
attention to the passage from the common Judgment and Decree dated
25.03.2014 in O.S.No.467 of 2008 and O.S.No.479 of 2008, wherein, it
has been observed as under:-
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C.R.P.(MD) No.806 of 2020
..... Mdhy; Nkw;gb gp.rh.M.1 Mtzj;jpy; hP
rHNt vz;.209/2 nghWj;J ve;j nrhj;Jf;fSk;
vOjpf;nfhLf;fg;gltpy;iy. gpd;dpl;L rHNtaiu
itj;J mse;J gpwNf gp.rh.M.2 Mtzj;ij
thjp VRkhpahd; mtuJ rNfhjuH gpuhd;rP];
vd;gthplkpUe;J vOjp thq;fpAs;sjhf
njspthf njhpatUfpwJ. Mdhy; Nkw;gb
gpuhd;rP];-f;F gioa rHNt vz;.5475y; 73tJ
fz;lj;jpy; ve;jtpj chpikAk; fpilj;jpUf;fhj
gl;rj;jpy; Njitapy;yhky; hP rHNt vz;.209/2 I
NrHj;J gp.rh.M.2 Mtzk;
cUthf;fg;gl;Ls;sjhf ,e;ePjpkd;wk; fhz;fpwJ.
NkYk; hP rHNt vz;.209/20y; ,e;j tof;fpd; 1
Kjy; 3 gpujpthjpfSf;F Vw;nfdNt 1 nrd;l;
ghj;jpag;gl;Ls;sjhf Vw;nfdNt ehk; KbT
nra;Js;s #o;epiyapy; mijAk; NrHj;J
Njitapy;yhky; hP rHNt vz;.209/20y; 2 1/2
nrd;il fhl;b gp.rh.M.2 Mtzk;
cUthf;fg;gl;Ls;sjhfTk; njspthf
njhpatUfpwJ. vdNt thjp VRkhpahdpd;
Mf;fpukpg;gpy; cs;s nrhj;Jf;fis
ghJfhg;gjw;fhfNt gp.rh.M.2 Mtzk;
cUthf;fg;gl;Ls;sjhf ,e;ePjpkd;wk; fhz;fpwJ.
10. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the first to third
respondents. I have perused the impugned order dated 24.07.2020.
11. The petitioner has sought for amendment of the plaint at the
appellate stage including the prayer for declaration and for mandatory
injunction. Amendments to averments itself ipso facto would not
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C.R.P.(MD) No.806 of 2020
determine interse dispute between the petitioner and the first to third
respondent. Appeal is nothing but a continuation of the original
proceedings. The court can be liberal when the amendments are sought
for by the parties even at the appellate stage. Therefore, the impugned
order is not sustainable.
12. It is further case of the petitioner that the first to third
respondents have encroached upon the property during the pendency of
the appeal. To what extent there is an alleged encroachment is to be
decided by the Appellate Court after perusing the records.
13. Therefore, the impugned order has to go. The impugned order is
liable to be set aside. Consequently, I.A.No.1 of 2019 filed by the
petitioner for amendment of plaint stands allowed. It is open for the first
to third respondents to raise all defences that are available in the manner
known to law in the appeals pending before the said Court.
14. Considering the fact that appeals filed by the petitioner and the
appeal filed by the first to third respondents are pending for a long period
i.e. 9 years since they were filed, the Sub Court, Kuzhithurai shall
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C.R.P.(MD) No.806 of 2020
endeavour to dispose of all the appeals, as expeditiously as possible,
preferably, within a period of 9 months from the date of receipt of a copy
of this order.
15. This Civil Revision Petition stands allowed with the above
observations. No cost. Consequently, connected Miscellaneous Petition is
closed.
22.06.2023
Internet: Yes/No
Index: Yes/ No
jen
To
The Sub Court, Kuzhithurai
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C.R.P.(MD) No.806 of 2020
C.SARAVANAN, J.
jen
C.R.P.(MD) No.806 of 2020
22.06.2023
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