HON’BLE Dr. JUSTICE K.G.SHANKAR Civil Revision Petition No.2183 of 2014 Date: 25-7-2014 Between Aaluri Mohan Babu … Petitioner/Plaintiff and S.Mohan Babu … Respondent/ Defendant HON’BLE Dr. JUSTICE K.G.SHANKAR Civil Revision Petition No.2183 of 2014 Order:
This civil revision petition challenges the order of the learned III Additional Junior Civil Judge, Kadapa dated 06- 6-2014 in I.A.No.34 of 2014 in O.S.No.20 of 2012. The petitioner herein is the plaintiff. He filed a suit for declaration and perpetual injunction. Contending that the sole defendant originally encroached 3½ feet width site and that he has subsequently enhanced the encroachment to 4½ feet in width, the plaintiff filed I.A.No.34 of 2014 seeking for the amendment of the plaint under Order VI, Rule 17 CPC. The learned Trial Judge dismissed the same holding that the petition was not maintainable.
2. The revision is laid as no appeal would lie from an order under Order VI, Rule 17 CPC vide Order XLIII, Rule 1 CPC. The plaintiff filed a petition seeking for temporary injunction along with the suit in respect of the plaint schedule property. Admittedly, the Trial Court directed both sides to maintain status quo. It is the case of the plaintiff that the defendant however encroached further extent of site of the plaintiff. The learned counsel for the defendant submitted that the alleged encroachment would be tantamount to violation of the status quo order granted by the Trial Court and that if the defendant really violated the order of status quo granted by the Trial Court, the plaintiff ought to have filed a petition under Order XXXIX, Rule 2A, CPC seeking for the prosecution of the defendant. He submitted that the contention of the plaintiff that the defendant encroached further extent cannot be accepted on the face of it where the plaintiff did not invoke Order XXXIX, Rule 2A, CPC. The learned counsel for the plaintiff would contend that the plaintiff indeed is contemplating to file a petition under Order XXXIX, Rule 2A, CPC and that even if the defendant violated the orders of status quo, unless the plaintiff seeks for a declaration and consequential perpetual injunction in respect of the total extent of land encroached upon by the defendant, the plaintiff would be liable to institute another suit in respect of the extent of one foot width of land encroached by the defendant subsequent to the institution of the suit. He contended that to avoid multiplicity of suits, the amendment deserves to be permitted.
3. The learned counsel for the defendant drew my attention to Order VI, Rule 17 CPC proviso envisaging that an amendment of the pleading shall not be permitted after commencement of trial unless the Court concludes that inspite of due diligence, party could not have raised the matter before the commencement of trial.
4. The learned counsel for the plaintiff contended that after the commencement of trial, the defendant made further encroachments, so much so, it became necessary for the plaintiff to seek for the amendment of the plaint. The learned counsel for the defendant submitted that the plaintiff has not taken the plea of additional encroachment in the affidavit accompanying the petition in I.A.No.34 of 2014. However, in para 2 of the affidavit, the plaintiff asserted that the defendant made further encroachments after the filing of the suit. Thus, the plaintiff has offered satisfactory explanation for the delayed filing of petition under Order VI, Rule 17 CPC.
5. However, it was not stated in the affidavit that the encroachment by the defendant was after the evidence of P.W.1. I therefore consider that it would be appropriate to allow the petition to enable the plaintiff to amend the plaint, subject to payment of deficit Court Fee for extended prayer and costs of Rs.2,000/- payable by the plaintiff directly to the defendant before the Trial Court within two weeks from the date of receipt of a copy of this order by the Trial Court.
6. Accordingly, this civil revision petition is allowed. The order in I.A.No.34 of 2014 in O.S.No.20 of 2012 on the file of the III Additional Junior Civil Judge, Kadapa is set aside. The petitioner is permitted to amend the plaint to include the relief of additional encroachments.
The amendment is permitted, subject to payment of deficit Court Fee for extended prayer and also on costs of Rs.2,000/- (Rupees two thousand only) payable by the plaintiff directly to the defendant under receipt to the satisfaction of the Trial Court within 15 days from the date of receipt of a copy of this order and shall produce receipt of payment of costs before the Trial Court.
The miscellaneous petitions, if any, pending in this revision shall stand closed.
Dr. K.G.SHANKAR, J.
25th July, 2014. Ak Note:-
Furnish Copy by Monday. (B/o) Ka HON’BLE Dr. JUSTICE K.G.SHANKAR Civil Revision Petition No.2183 of 2014 July, 2014. (Ak)