- (1.) THE Civil Revision Petition is filed challenging the order dated 23.12.2011 in I.A.No.10304 of 2011 in O.S.No.5511 of 2010, on the file of the II Assistant Judge, City Civil Court, Chennai.
(2.) THE defendant in the suit is the revision petitioner herein. The suit has been filed by the respondent/plaintiff for permanent injunction restraining the petitioner/defendant, his men, agents, servants or anybody authorised through the defendant from in any manner carrying out construction work in the common passage ad-measuring 337.5 square feet situate in T.S.No.4692 of Block No.105 in No.112, T.Nagar Village, morefully described in Schedule C. Pending suit, the respondent/plaintiff filed I.A.No.10304 of 2011 to amend the plaint averring as follows: (a) As per paragraph (a) of the relief sought for in the plaint, in particular, the plaintiff stated in paragraph 6 of the plaint that the defendant's property is situated in the corner portion of the South-Eastern side, and in front of the plaintiff's property, there is a common passage from North to South vice versa and there was entrance. The said passage is common for the plaintiff and the adjacent owners. But the defendant, taking advantage of the corner portion as referred to above, tried to construct a building which would block the plaintiff's backside way and also prevent the sunlight and the ventilation to the plaintiff's Eastern side of the building. (b) In view of the above situation, the plaintiff filed the above suit on 14.6.2010 and after notice to the defendant, by order dated 23.7.2010 passed in I.A.No.10833 of 2010 for interim injunction, the Court ordered "status quo". Inspite of such an order of "status quo", the defendant continued and completed the construction and totally blocked the entrance to the passage on the Eastern side in the Southern corner entrance egress to the plaintiff and other house of the neighbours. (c) The defendant in his written statement dated 1.12.2010 has stated that he has completed the construction work in his property and as such, the present suit has become infructuous and liable to be dismissed with no cause of action. The plaintiff states that the above suit was taken up for trial and the defendant as DW1 deposed in his evidence by proof affidavit dated 16.3.2011 and cross-examination dated 22.3.2011 and 12.4.2011 that he has completed his construction work in the common passage and deposed as if he was not aware of the injunction order, though the injunction order was passed after hearing both sides. Hence, it has become necessary that the plaint of the suit is to be amended with the corresponding prayer for the relief of demolition of the construction put up on the common passage during the pendency of the above suit. (d) Since the defendant in his written statement and his evidence has admitted the completion of the construction in the common passage, no further proof by way of trial is necessary. As per Order 6 Rule 17 C.P.C., a plaint can be amended at any time and as such, it has become necessary for the plaintiff to amend the plaint by praying for demolition of the constructions put up in the common passage. (e) Paragraph 8 (a) has to be inserted between paragraph 8 and 9 of the plaint as follows: "In view of the admitted position as made out by the defendant in his written statement read with his evidence as DW1 that he has completed the construction in the suit disputed passage, this Hon'ble Court may be pleased to pass an order of a mandatory injunction directing the defendant to remove the construction made in the suit disputed common passage." Paragraph 10(a) has to be inserted between paragraph 10 and 11 of the plaint as follows: "The plaintiff values the suit for the relief of mandatory injunction at Rs.1,000/- and pays a Court Fee of Rs.75.50 under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as amended by Act 17 of 2003." In the prayer column, paragraph 11(a)(1) is to be inserted between paragraph 11(a) and 11(b), as follows: "that the defendant be ordered to remove/demolish the entire construction put up in the (common passage ad-measuring 337.5 square feet situate in T.S.No.692 of Block No.105 in No.112, T.Nagar Village, morefully described in the Schedule C hereunder) suit property by an order of mandatory injunction and in the event of the defendant failing to demolish/remove the said construction put up by the defendant in the suit property (common passage ad-measuring 337.5 square feet situate in T.S.No.692 of Block No.105 in No.112, T.Nagar Village, morefully described in the Schedule C hereunder) the plaintiff be permitted to remove/demolish the same and to receive the costs incurred thereon from the defendant and thus render justice."
(3.) THE petitioner/defendant has filed counter affidavit to the said I.A. praying for amendment of the plaint, stating as follows: (a) The petition is not maintainable either in law or on facts and is liable to be dismissed in-limine. (b) The defendant has stated in his counter affidavit filed on 8.7.2010 in I.A.No.10833 of 2010 that he has completed the construction of his property and there is no cause of action for the suit and the same is liable to be dismissed as infructuous. The defendant has also filed his written statement and issues were framed and the trial has also been completed and now, when the matter stands posted for arguments, the plaintiff has filed the present petition seeking to change the entire character of the suit. It is denied that he continued and completed the construction totally blocking the entrance to the passage, inspite of the order of status quo. After completion of the construction, the plaintiff approached the Court and obtained an order of status quo. Further, the plaintiff has also filed a suit in O.S.No.11556 of 2010 on the file of the I Assistant City Civil Court, Chennai for the relief of mandatory injunction and the same is pending for framing of issues. (c) The plaint cannot be allowed to be amended at the stage of arguments and further the amendment now sought to be made, would change the character of the suit and would be contrary to the pleadings in the plaint. (d) If the plaint is allowed to be amended so as to incorporate the relief of mandatory injunction, there would be two parallel suits on the same cause of action. The plaintiff cannot amend the prayer in the present suit, as the same would be contrary to the cause of action for the present suit. (e) The plaintiff cannot pay the Court fees according to his own whims and fancies and the relief of mandatory injunction to remove the construction would have been valued on the extent and the value of the construction and appropriate Court Fees will have to be paid by the plaintiff. The plaintiff cannot choose to pay a sum of Rs.75.50 for the relief of mandatory injunction to remove the construction. (f) The plaintiff has already filed a suit for mandatory injunction in O.S.No.11556 of 2010 on the file of the I Assistant Judge, City Civil Court, Chennai and he has also admitted the pendency of the said suit during his cross-examination, but had suppressed the said fact in the present affidavit. Therefore, the present petition for amendment is devoid of merits and the present petition and the suit are liable to be dismissed with exemplary costs, as the intention of the plaintiff is to drag on the matter and waste the time of the Court. ;