C.R.P.(PD)(MD).No.2343 of 2022 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 03.02.2025 CORAM THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR C.R.P.(PD)(MD).No.2343 of 2022 and CMP(MD).No.11329 of 2022 Arul Seelan Represented by his Power Attorney Holder Vijayan ... Petitioner -vs- 1.Johnsi 2.Francis Gana Androose Mony ....Respondents PRAYER: The Civil Revision Petition has been filed under Article 227 of Constitution of India, to set aside the fair and decreetal order dated 19.09.2022 passed in I.A.No.8 of 2022 in O.S.No.8 of 2019 on the file of the II Additional District Munsif Court, Nagercoil by allowing this Civil Revision Petition. For Petitioner : Mr.S.Vashik Ali For Respondents : Mr.G.Aravindan 1/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 O R D E R The plaintiff in O.S.No.8 of 2019 on the file of the II Additional District Munsif, Nagercoil is the revision petitioner herein. 2.The above said suit was initially filed for the relief of permanent injunction restraining the defendants from making any construction in the plaint 'A' schedule which is a common pathway and thereby restraining the defendants from interfering in the peaceful possession and enjoyment of the plaint 'A' schedule property. 3.The defendants have filed a written statement contending that the property is not a common pathway, but it is their private property. However, by way of easementary right, they have permitted the plaintiff to use the pathway to have access to the main road. The defendants have further contended that there is no necessity for them to prevent the plaintiff from using the said property as a pathway by the plaintiff. 4.Pending suit, the defendants have filed an application for appointment of Advocate Commissioner in I.A.No.7 of 2022 to note down the physical features of the property. The Advocate Commissioner had filed a report on 25.02.2022 noting that some obstructions have been placed in the suit schedule property by the defendants. This observation of 2/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 the Advocate Commissioner has prompted the plaintiff to file the present application in I.A.No.8 of 2022 to amend the plaint to incorporate the prayer for mandatory injunction so as to remove those obstructions. 5.The plaintiff in paragraph No.6 of the affidavit has categorically contended that the illegal constructions in the plaint 'A' schedule property were made by the defendants pending suit. The said fact has not been denied in the counter filed by the defendants/respondents. However, the trial Court has proceeded to dismiss the application on the ground that the plaintiff was not diligent enough in making an application for amendment of plaint. The said order is under challenge in the present civil revision petition. 6.According to the learned counsel for the petitioner, the obstructions were made pending suit and therefore, the plaintiff was constrained to file an application seeking amendment of prayer for mandatory injunction. Therefore, the findings of the trial Court that the plaintiff was not diligent enough at the time of filing the suit is not sustainable. 7.Per contra, the learned counsel appearing for the respondents herein had contended that for the Commissioner's report the plaintiff as 3/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 well as the defendants have filed their objections. Therefore, there is no necessity whatsoever to amend the plaint. He had further contended that the Commissioner's report, cannot create a cause of action for the plaintiff to file an application seeking amendment of plaint. 8.I have considered the submissions made on either side and perused the material records. 9.The suit was initially filed with a prayer for permanent injunction not to disturb the usage of plaint 'A' schedule property as a pathway. Pending suit, at the instance of the defendants, a Commissioner was appointed to note down the physical features. In his report, the Commissioner has found that some temporary obstructions have been made in the suit schedule property. Based upon the same, the application seeking amendment of plaint to incorporate the prayer for mandatory injunction has been filed. 10.Considering the fact that the plaintiff has specifically pleaded that the obstructions have been created pending suit and the same has not been disputed in the counter affidavit, this Court is of the considered opinion that the amendment has to be allowed. However, it is open to the defendants to raise the plea of limitation with regard to the prayer for 4/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 mandatory injunction during trial. The order impugned in the revision petition is set aside and the revision petition stands allowed. 11.Considering the fact that the suit is of the year 2019, the trial Court is directed to dispose of the suit on or before 31.10.2025. 12.Accordingly, this Civil Revision Petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed. 03.02.2025 Index : Yes/No Internet : Yes/No NCC : Yes/No msa To 1.The II Additional District Munif, Nagercoil 2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai. 5/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 R.VIJAYAKUMAR, J msa C.R.P.(PD)(MD).No.2343 of 2022 and CMP(MD).No.11329 of 2022 6/7 https://www.mhc.tn.gov.in/judis C.R.P.(PD)(MD).No.2343 of 2022 03.02.2025 7/7 https://www.mhc.tn.gov.in/judis