C.R.P. (PD) No. 3759 of 2011 and M.P. No. 1 of 2011. Case: Rajapunnisa Vs Meharajan Begum and K. Narayanan. High Court of Madras (India)

Case NumberC.R.P. (PD) No. 3759 of 2011 and M.P. No. 1 of 2011
CounselFor Appellant: Mr. J. Kamaraj, Adv. And For Respondents: Mr. S.I. Samiullah and Mr. J. Saravanavel, Advs.
JudgesB. Rajendran, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order VI Rule 17
Judgement DateSeptember 26, 2013
CourtHigh Court of Madras (India)


B. Rajendran, J.

  1. The Plaintiff in O.S. No. 339 of 2003 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai is the revision petitioner herein. The suit was filed for the relief of declaration to declare that the plaintiff is the owner of the suit property and for a consequential injunction to restrain the defendants/respondents herein from interfering with her possession. The suit was partly allowed by a decree and judgment dated 29.01.2008 holding that the plaintiff is entitled for the relief of declaration, however, she is not entitled for the relief of consequential injunction inasmuch as she is not in possession of the suit property. Aggrieved by the decree and judgment dated 29.01.2008, the plaintiff has filed A.S. No. 445 of 2008 questioning the correctness of the decree and judgment passed by the trial court in so far as it disallowed the prayer for injunction. Pending the first appeal, the plaintiff has filed C.M.P. No. 8 of 2009 in A.S. No. 445 of 2008 under Order VI Rule 17 of CPC to include the relief of recovery of possession as an alternative relief. This petition was opposed by the respondents by filing a counter contending that such a prayer sought for is barred by limitation. According to the respondents, the suit was filed in the year 2003 and it was filed for the relief of declaration and consequential injunction. While so, only to fill up the lacuna, the present petition has been filed pending this appeal. Further, the respondents would contend that the appeal was filed in the year 2008, but the plaintiff has chosen to file the present appeal only after a year and this clearly indicates that the plaintiff was not diligent in seeking the relief of recovery of possession.

  2. The first appellate Court after hearing both sides and on perusal of the records, held that the plaintiff was not diligent enough in seeking the relief of recovery of possession during the pendency of the suit and such prayer is sought for only at the appellate stage that too after one year from the date of filing the appeal. Therefore, the first appellate Court held that the petition for amendment has been filed only to fill up the lacuna and dismissed the petition.

  3. The learned counsel appearing for the plaintiff/revision petitioner would contend that the title in respect of the suit property has been upheld by the trial court. As against the same, the defendants have filed a cross-appeal. Pending appeal, the plaintiff/petitioner has filed the instant petition in I.A. No. 8 of 2009 by stating that when the plaintiff/petitioner was out of station, the second respondent herein encroached upon the suit property and started putting up construction, which resulted in filing of the suit. It is further stated that even in the suit, the plaintiff had categorically stated that the suit property was vacant, however, the trial court erroneously held that the petitioner was not in possession and dismissed the suit with regard to the relief of injunction. The learned counsel for the plaintiff/petitioner would vehemently contend that when the trial court had decreed the suit in so far as declaration of plaintiff's title, disallowing the relief of injunction is causing hardship to her and she could not enjoy the fruits of the decree passed by the trial court. Since the trial court has negatived the relief of injunction, it has become necessary for the plaintiff/petitioner to file the present petition for amendment of the pleadings in the plaint as an alternative relief.

  4. The learned counsel for the plaintiff/revision petitioner brought to the notice of this Court that pending suit, the plaintiff/revision petitioner has filed I.A. No. 1279 of 2003 and obtained an order of interim injunction. On notice, the respondents/defendants have filed an affidavit of undertaking before the trial court in I.A. No. 1279 of 2003 15.10.2003 seeking to vacate the...

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